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DCCJ 5245/2025
[2026] HKDC 24
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 5245 OF 2025
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BETWEEN
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莊如芬 |
Plaintiff |
| and |
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黃志輝 |
1st Defendant |
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梁炳基 |
2nd Defendant |
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| Before: |
Deputy District Judge Aidan Tam in Chambers |
| Date of Hearing: |
31 December 2025 |
| Date of Judgment: |
9 January 2026 |
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JUDGMENT
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Introduction
1. The Plaintiff sues the 1st and 2nd Defendants in defamation and malicious falsehood.
2. By summons filed on 10 November 2025, the Plaintiff seeks final judgment against the 1st and the 2nd Defendants pursuant to Order 13 rule 6 and Order 19 rule 7 of the Rules of the District Court (Cap 336H, sub leg) (“RDC”) for the following reliefs:-
(1) Judgment be entered against the 1st and 2nd Defendants;
(2) Damages for defamation and/or malicious falsehood, including aggravated, exemplary damages and/or damages for republications, to be assessed;
(3) An injunction order restraining the 1st and/or 2nd Defendants (whether by themselves or via any agent) from howsoever publishing, procuring and/or participating in the publication of the Words as defined in the Statement of Claim dated 13 September 2025 (“the Words”) or similar words defamatory of or containing false allegations concerning the Plaintiff;
(4) An order compelling the 1st and/or 2nd Defendants to permanently remove and cause to be removed the Words and all similar words defamatory of and/or containing false allegations concerning the Plaintiff from all platforms, websites, computer programmes, devices, and Smartphone Apps within their control;
(5) An order compelling the 1st and/or 2nd Defendants to apologise to the Plaintiff, and/or to publish retraction of the Words, and/or to publish corrective statements, in such words and in such manners as this Honourable Court sees fit (“the Apology Order”);
(6) Interests pursuant to Sections 49 and/or 50 of the District Court Ordinance (Cap 336); and
(7) The 1st and 2nd Defendants be jointly and severally liable to pay costs of this action on liability to the Plaintiff forthwith.
3. At the hearing, Ms Linda Cho, Counsel for the Plaintiff, informed this Court that the Plaintiff withdrew her application for the Apology Order.
4. Both the 1st and 2nd Defendants acted in person but were absent at the hearing.
Plaintiff’s Pleaded Case
5. The Plaintiff was and still is a Lantau Island taxi driver and a member of the Lantau Blue Taxi Society (大嶼山藍的士會). She was and is the leader of a transportation van / truck fleet called “Lantau Van / Van the Lantau (大嶼灣)”. Moreover, she was and still is a member of a group “大街大巷” on the Zello app, a push-to-talk walkie-talkie app (the "Zello Group (大街大巷)”), with her phone number and nickname registered thereon, as well as a member of other Zello group mainly consisted of taxi drivers in Hong Kong.
6. The 1st Defendant was and still is a Lantau Island taxi driver with a certain taxi licence plate and a member of the Lantau Blue Taxi Society. He was and is also an administrator of the Zello Group (大街大巷) with the nickname “cowfai”.
7. Similarly, the 2nd Defendant was and still is a Lantau Island taxi driver with a certain taxi licence plate and a member of the Lantau Blue Taxi Society. He was and is also a member of the Zello Group (大街大巷) with the nickname “大基” or “andy pk leung”.
8. Prior to the Defendants’ malicious publication of false words defamatory of and referable to her, the Plaintiff had an impeccable reputation in Hong Kong generally, and in the community of Lantau Island taxi drivers specifically.
9. On 4 May 2025, the Defendants wrongfully, unlawfully and maliciously published audio messages of themselves (“the Audio Messages") between 13:10 and 13:30 containing false words (“the Words”) defamatory of and referring to the Plaintiff to the Zello Group (大街大巷) with around 258 members (collectively, “the Recipients").
10. The Words had since been republished by the Recipients to other taxi drivers, customers and the general public (collectively, “the Further Recipients”). The Defendants authorised, consented to and/or foresaw such republications. The Defendants never attempted to restrict republications by (1) deleting the Audio Messages containing the Words, or (2) telling the Recipients in any other way that the Words should not be republished in any way.
11. The Words were:-
(1) The 1st Defendant said “…你做白牌就唔好咁多嘢講啦...” (Translation: you are running an illegal taxi, you should keep quiet).
(2) The 1st Defendant said “…你擺明呃人錢去買車，雙宿雙棲幾好呀…” (Translation: You're clearly defrauding people's money to buy a car and you both ran away).
(3) The 1st Defendant said “…爭人錢我哋會還，你係呃人錢去買車，雙宿雙棲分錢，先係賤格呀嘛” (Translation: We may owe people money but we already repaid them, but you cheated others for money to buy a car and shared the profits—that's real low).
(4) The 1st Defendant said “…左勾右勾嗰個，有人埋去都仲好嘢喎真係…一把年紀都有人埋…我唔需要瞓低搵錢㗎喎…你瞓低大把人啦…” (Translation: She is flirting with everyone, people still go for her... even at that age, still got people joining in... I don't have to sleep with people to make money ... but you sleep around with loads of people).
(5) The 1st Defendant said “…呃到人哋周身債…有報應呀小心啲呀…” (Translation: You cheated others into all kinds of debt... karma's coming, be careful).
(6) The 2nd Defendant said “…啲人打正旗號呃人錢，要生要死，攬住個仔話要跳樓” (Translation: She openly cheated money, making others want to end it all, and the poor victim clutching his kid threatening to jump...).
(7) The 1st Defendant said “…爭人咁多錢都可以買幾部車…” (Translation: She owes people so much money, but still manages to buy many cars).
(8) The 1st Defendant said “…光明正大做白牌，搵啲的士去幫手，幫你手嗰啲都叫好嘢㗎啦，明知你做白牌都幫你手，幫你圍order...” (Translation: You're running an unlicensed taxi business so openly even hiring legit taxis to help—those helpers must be legends, right? Helping you out knowing it's illegal, joining in on the taxi bid rigging).
(9) The 2nd Defendant said “…人哋正當搵食，唔係呃唔係搶，你就封殺人…” (Translation: Others are earning an honest living, not cheating or robbing, yet you shut them out).
12. The Plaintiff pleads that the Words referred to, and were understood to refer to, her:-
(1) The Defendants’ Audio Messages were responding directly to the Plaintiff’s messages in the Zello Group (大街大巷).
(2) The Plaintiff’s full name/ nickname/ phone number is known to the Recipients and/or the Further Recipients.
(3) The Plaintiff’s full name/ nickname/ phone number could be directly identified from the Audio Messages she sent in the Zello Group (大街大巷).
(4) The Plaintiff’s full name/ nickname is known within the circle of the Recipients and/or the Further Recipients.
13. The Plaintiffs pleads that the Words had the following natural and ordinary meanings:-
(1) The Plaintiff defrauded others and ran away with their money.
(2) The Plaintiff shared the defrauded or stolen money with other fraudsters and bought many cars with it.
(3) The Plaintiff’s fraud victim threatened suicide and harm to his family over the losses.
(4) The Plaintiff was running unlicensed taxis, or running taxi business through illegal means.
(5) The Plaintiff isolated legal taxi operators to protect her illegal business.
(6) The Plaintiff owes a lot of money to others and has no intention of repaying it.
(7) The Plaintiff was flirting around and involved in sexual activities to earn money.
(8) The Plaintiff was dishonest, deceptive, immoral and greedy.
(9) The Plaintiff was not a fit and proper person to be the leader of her transportation van/ truck fleet.
(10) The Plaintiff was not an honest taxi driver to serve customers.
14. Further or alternatively, the Words bore each of the said meanings by way of innuendo, in that the Recipients and the Further Recipients would and did understand the Words to have each of the said meanings, as they would and did combine their knowledge of the extrinsic facts (namely, the Plaintiff as a member of Lantau Island taxis, Lantau Blue Taxi Society, the leader of 大嶼灣 and a member of Zello Group (大街大巷) and other groups comprising mainly Hong Kong taxi drivers with her phone number and nickname) with the Words in construing the Words.
15. The Plaintiff pleads that the Words were false:-
(1) The Plaintiff did not defraud others or run away with their money.
(2) The Plaintiff did not have or share any defrauded money or buy any cars with defrauded money.
(3) There is no victim of any fraud allegedly committed by the Plaintiff.
(4) The Plaintiff was not running unlicensed taxis or running taxi business through illegal means at all.
(5) The Plaintiff did not isolate legal taxi operators or protect any illegal business.
(6) The Plaintiff does not owe significant money to others, any loans borrowed have been fully repaid or are being repaid.
(7) The Plaintiff was not flirting around or involved in sexual activities to earn money.
(8) The Plaintiff is not dishonest, deceptive, immoral or greedy.
(9) The Plaintiff was not a fit and proper person to be the leader of her transportation van/ truck fleet.
(10) The Plaintiff was an honest taxi driver to serve customers.
16. The Plaintiff further contends that the Words were published maliciously:-
(1) Prior to the Defendant’s publication of the Words, the Plaintiff as the administrator of another Zello group named “好朋友” consisted of over 200 taxi drivers caused the friend(s) of the Defendants to exit or be removed from the group for violating group rules, specifically for operating unlicensed taxis and driving Ubers. This action led to animosity from the Defendants towards the Plaintiff. This made the Defendants wish to discredit, harm and hurt the Plaintiff by all means possible whenever possible (the "Defendants' Desire").
(2) By around 4 May 2025, when the Defendants were publishing the Words, the Defendants’ Desire was intense.
(3) The Defendants published the Words knowing they were false, or recklessly as to their truth or falsity.
(4) The Defendants published the Words with the sole or dominant motive of discrediting, harming and/or hurting the Plaintiff, and/or making sure the Plaintiff would never be successfully elected to the owners’ committee for the Estate.
17. As a result of the Defendants’ defamation and/or malicious falsehood, the Plaintiff’s reputation in the taxi driver community and in Hong Kong had been seriously damaged. The Plaintiff suffered considerable distress and embarrassment. The Plaintiff suffered financial loss as the Plaintiff had wasted considerable time to correct the falsity of the Words in the Zello Group (大街大巷), among fellow taxi drivers, customers and the general public. The Plaintiff would have used such time to generate income from her taxi driving and transportation business but for the Defendants’ defamation and/or malicious falsehood.
18. The Plaintiff pleads that she is entitled to claim aggravated and/or exemplary damages for the following reasons:-
(1) The Defendant’s publication of the defamatory and malicious Words and inaction to the republication of the same were outrageous.
(2) The Plaintiff through his solicitors wrote to the Defendants on 22 May 2025 (“the Letter"), demanding, inter alia, an apology, but the Defendants refused to apologise to the Plaintiff, whether as demanded or at all.
(3) The Defendants had plenty of opportunities to apologise to the Plaintiff, or to retract the Words, but chose not to do so.
(4) The 1st Defendant removed or caused the Plaintiff to be removed from the Zello Group (大街大巷) after publishing the Words.
(5) On 4 June 2025 in the Zello Group (大街大巷), when the Plaintiff reminded the Defendants to act in response to the Letter, the 1st Defendant immediately replied to the Plaintiff via audio message that “你識唔識法律架？ ” (Translation: do you not know the law?) and “你係咪傻咗未瞓醒呀？” (Translation: are you dumb or not fully awake yet?).
(6) The above words of the Defendants were received by the Recipients and could be forwarded to the Further Recipients.
(7) The Defendants have deliberately chosen to never apologise to the Plaintiff in order to maximise, prolong and aggravate the harm and hurt already suffered by the Plaintiff.
(8) By reason of the above, subsequent to the Defendants’ publication of the Words, the Defendants "rubbed salt into the Plaintiffs wounds" in the manner as aforesaid and aggravated, prolonged and/or maximised the harm, distress and hurt already suffered by the Plaintiff.
19. Further or alternatively, the Words were published in permanent form and were calculated to cause pecuniary damage to the Plaintiff in respect of her business as a taxi driver, a member of the Zello Group (大街大巷) and leader of her transportation van/ truck fleet, and were calculated to disparage the Plaintiff in such business at the time of the publication. The Plaintiff is entitled to and shall, if necessary, rely on, section 24 of the Defamation Ordinance (Cap 21) in alleging special damage to the Plaintiff.
20. Further or alternatively, the Words published “…左勾右勾嗰個，有人埋去都仲好嘢喎真係…一把年紀都有人埋…我唔需要瞓低搵錢㗎喎…你瞓低大把人啦…” impute unchastity or adultery to the Plaintiff, who is entitled to and shall, if necessary, rely on, section 21 of the Defamation Ordinance in alleging special damage to the Plaintiff.
21. The Plaintiff therefore has a reasonable apprehension that, unless restrained by the Court, the Defendants will continue to publish, procure the publication and/or participate in the publication of the Words.
22. Unless restrained by the Court, the Defendants are likely to continue to maliciously publish and/or republish the Words. The Plaintiff is entitled to and shall claim permanent injunctions against the Defendants.
23. The Plaintiff is entitled to and shall claim damages, including aggravated damages, as the Defendants’ conduct, including the Defendants’ refusal to apologise, has aggravated the harm and hurt suffered by the Plaintiff, and made the Plaintiff feel substantially worse.
24. As the Defendants’ conduct was outrageous, the Plaintiff is entitled to and shall claim exemplary damages.
25. The Plaintiff seeks the same reliefs as those contained in the present summons.
Service of Writ of Summons and the Present Summons
26. The Writ of Summons, issued on 18 September 2025, is specially indorsed with the Statement of Claim.
27. In respect of the service of the Writ of Summons, the Plaintiff relies on service by sending a copy by registered posts to the respective usual or last known address of the 1st and 2nd Defendants pursuant to Order 10 rule 1(2)(a) RDC.
28. The essence of “usual or last known address” is really the location where the person may be reached or where contact or communication in written form, such as by letter, could be established, and the plaintiff is entitled to ascertain from whatever available source that address, ie the details of where the defendant lives, works or can be found, and where letters, etc. may be delivered. See The Hong Kong Mortgage Corporation Limited v Ching Kit Yu & Anor HCMP 2226/2002, unreported, 15 April 2003, per DHCJ To (as he then was), at paragraphs 11 and 12.
29. On 19 September 2025, the Writ was posted to the Defendants by registered post at the addresses of the registered owners of the licence plates of their taxis (“the Owners’ Address”) and the address of Lantau Blue Taxi Society (“the LBTS Address”). This Court accepts that the Owners’ Address is a usual and last known address of the Defendants since the registered owners can contact the Defendants as taxi drivers. The Court also accepts that the LBTS Address is another usual and last known address of the Defendants since they are members of the Lantau Blue Taxi Society. I also note that the registered posts to the LBTS Address were not returned by the Post Office through the Dead Letter Service.
30. In the premises, I am satisfied that service of the Writ of Summons on both Defendants by registered post on 19 September 2025 was valid, and the date of service shall be deemed to be the seventh day after the date on which the copy was sent, ie 26 September 2025.
31. I am further satisfied that the present summons was duly served on both Defendants by insertion through the letter box at the respective Owners’ Address on 11 November 2025 and by ordinary post to the LBTS Address on 13 November 2025.
Legal Principles on Application for Final Judgment in Default of Notice of Intention to Defend and in Default of Defence
32. Order 13 rule 6(1) RDC provides that where a writ is indorsed with a claim of a description not mentioned in rules 1 to 4, then, if any defendant fails to give notice of intention to defend, the plaintiff may, after the prescribed time and, if that defendant has not acknowledged service, upon filing an affidavit proving due service of the writ on him and, where the statement of claim was not indorsed on or served with the writ, upon serving a statement of claim on him, proceed with the action as if that defendant had given notice of intention to defend.
33. In this action, as the Plaintiff seeks injunctive relief and damages, Order 13 rule 6(1) RDC is applicable and, upon due service of the Writ of Summons and Statement of Claim, the Plaintiff has to proceed with the action as if the 1st and 2nd Defendants have given notice of intention to defend.
34. Order 19 rule 7(1) RDC provides that where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2 to 5, then, if the defendant or all the defendants (where there is more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.
35. Although paragraph (1) of the rule is expressed in mandatory terms, the rule is not mandatory but discretionary, and the court retains its discretionary power whether to give judgment or to extend a party’s time to plead when it is just to do so. It may give an interlocutory judgment, and refer the case to a master to ascertain what amount the plaintiff is entitled. See Hong Kong Civil Procedure 2026, Volume 1, rubric 19/7/13.
36. On an application for final judgment in default of defence pursuant to Order 19 rule 7 RDC, the court cannot receive any evidence but must give judgment according to the pleadings alone. The basis upon which final judgment can be obtained in default of defence is that of implied admission, i.e. the court will assume that the Statement of Claim has been impliedly admitted. See Hong Kong Civil Procedure 2026, Volume 1, rubric 19/2/1 and 19/7/11.
37. On such basis, Ms Cho confirmed that the Plaintiff filed her 1st Affirmation on 16 December 2025 on the issue of service of the present summons only but not on the merit of this application.
Discussion
38. By proper service of the Writ of Summons, the Statement of Claim is deemed to have been impliedly admitted by the Defendants. This is a straightforward case in terms of the constitution of the causes of action of libel and malicious falsehood.
39. The publication of defamatory matter with reference to the plaintiff will give rise to a cause of action in defamation. The plaintiff must in his statement of claim be able to set out with reasonable certainty the alleged defamatory words, their alleged meaning and, if necessary, factors relied upon as identifying the plaintiff as the subject of the allegations. The plaintiff needs not allege that the imputation published is false or that it has been published maliciously. Since it is not to be assumed that anyone is of bad character, defamation of an individual is taken to be false until it is proved to be true. Malice only becomes relevant if the defendant seeks to rely on a defence which may be defeated on proof of malice, such as qualified privilege. It may also be relevant to any claim for aggravated or exemplary damages. See Clerk & Lindsell on Torts (24th edition), paragraph 21-09.
40. The Defendants made multiple allegations against the Plaintiff in the Words, including assertions that she was running an illegal taxi service, that she had defrauded others and absconded with their money, that she was engaging in sexual conduct for financial gain, and that she had failed to repay substantial debts. I agree with the natural and ordinary meanings of the Words as pleaded, save and except that the 2nd Defendant’s words “啲人打正旗號呃人錢，要生要死，攬住個仔話要跳樓” appear to mean that the Plaintiff was blatantly deceiving money and threatening to kill herself and her son by jumping off the building together if she did not receive the money. In any event, the natural and ordinary meanings of the Words were undoubtedly defamatory and impugning the Plaintiff’s character, honesty, and fitness to conduct her business. Further, the Words have the effect of discrediting the Plaintiff, or tend to lower her in the estimation of reasonable persons of ordinary intelligence.
41. I also accept that the Words were directed at and clearly identified the Plaintiff, as the Defendants’ Audio Messages responded directly to the Plaintiff’s messages in the Zello Group (大街大巷). The Plaintiff’s full name, nickname, and phone number were known to the Recipients and could be directly identified from the messages sent within the Zello Group (大街大巷).
42. The Audio Messages containing the Words are permanently posted on the Zello Group (大街大巷), and it is pleaded that the Words had been republished by the Recipients to the Further Recipients by forwarding, and the Defendants authorised, consented to and/or foresaw such republications. The Defendants never attempted to restrict republications by deleting the Audio Messages containing the Words, or telling the Recipients in any other way that the Words should not be republished in any way.
43. As a result of the Defendants’ defamatory publication, the Plaintiff’s reputation in the taxi driver community and in Hong Kong was seriously damaged. The Plaintiff suffered distress and embarrassment, as well as financial loss as time was wasted to correct the falsity of the Words in the Zello Group (大街大巷) and among fellow taxi drivers, customers and the general public.
44. This Court is satisfied that the Plaintiff has pleaded a case of libel.
45. Moving on to the tort of malicious falsehood, the essentials of the action were defined as false words which were maliciously published and which were calculated to cause (and do cause) the claimant pecuniary loss. See Clerk & Lindsell on Torts, paragraph 22-10.
46. The Plaintiff has pleaded that the Words were false. I notice that in one of the particulars of falsity, the Plaintiff pleaded that “the Plaintiff was not a fit and proper person to be the leader of her transportation van/ truck fleet”, but I accept that there was a clerical error and the plea should have meant to read that “the Plaintiff was a fit and proper person to be the leader of her transportation van/ truck fleet.” The Plaintiff has also pleaded that the Words were published in permanent form and were calculated to cause pecuniary damage to the Plaintiff in respect of her business as a taxi driver, a member of the Zello Group (大街大巷) and leader of her transportation van/ truck fleet, and were calculated to disparage the Plaintiff in such business at the time of the publication.
47. Further, I accept that malice (i.e. the Defendant’s Desire to discredit, harm and hurt the Plaintiff by all means possible) in the publication of the Words could be inferred from the Defendants’ animosity towards the Plaintiff arisen from the previous incident that the Plaintiff caused the friend(s) of the Defendants to exit or be removed from the group for violating group rules by operating unlicensed taxis and driving Ubers. However, I do not understand the pleaded case at paragraph 13(d) of the Statement of Claim that the Defendants published the Words with the sole or dominant motive of “making sure the Plaintiff would never be successfully elected to the owners’ committee for the Estate”. Nowhere else is “the owners’ committee for the Estate” pleaded.
48. Taking the pleading as a whole, the Plaintiff has pleaded a case of malicious falsehood.
49. The next question is the appropriate relief(s) to be granted.
50. First, the Plaintiff seeks permanent injunctions. For permanent injunctions in libel cases, the test is whether there is reason to apprehend further publication by the defendant. See Gatley on Libel and Slander (12th edition), paragraph 9.41.
51. This Court accepts the Plaintiff’s submission that there are reasons to apprehend further publication of the Words by the Defendants:-
(1) Ample opportunities had been given to the Defendants to apologise or to remove the Audio Messages containing the Words from the Zello Group (大街大巷), but they had refused to do so.
(2) Despite the reminder by the Plaintiff on 4 June 2025 in the Zello Group (大街大巷), the 1st Defendant blatantly refused to back down and continued to personally attack the Plaintiff despite receiving the Letter.
(3) The Plaintiff had been removed from Zello Group (大街大巷) by the 1st Defendant after the publication of the Words.
(4) Unless restrained by the Court, the Defendants are likely to continue publishing and/or republishing the Words in the Zello Group (大街大巷).
52. Having considered all the circumstances, I accept that a permanent injunction (1) restraining the Defendants from publishing, procuring and participating in the publication of the Words or similar words defamatory of or containing false allegations concerning the Plaintiff, and (2) compelling the Defendants to permanently remove and cause to be removed the Words and all similar words defamatory of or containing false allegations concerning the Plaintiff, is necessary.
53. That said, the Plaintiff did not plead that the Words had been republished outside the Zello app. It was pleaded in paragraph 15(f) of the Statement of Claim that the Words had been forwarded by the Recipients to the Further Recipients, presumably within the Zello app. This is confirmed in the Plaintiff’s skeleton submissions. Indeed, paragraph 7 of the Statement of Claim pleads that the Plaintiff is unable to provide full particulars of the republication by the Recipients to the Further Recipients. In the circumstances, there is no basis or justification for the Plaintiff to seek a mandatory injunction compelling the Defendants to permanently remove the Words from not just the Zello app but also “from all platforms, websites, computer programmes, devices, and Smartphone Apps within their control”.
54. Secondly, the Plaintiff seeks damages. The Plaintiff has suffered loss and damage to her reputation and business, as well as distress and embarrassment, because of the defamatory and false Words which were published maliciously. I award damages in defamation and malicious falsehood, to be assessed by a Master.
55. Ms Cho did not make submissions on the legal principles governing the award of aggravated damages, exemplary damages or special damage under sections 21 and 24 of the Defamation Ordinance.
56. This Court decides to leave the question whether the Plaintiff is entitled to aggravated damages, exemplary damages and/or special damage to the stage of assessment of damages. Support for this approach is derived from the judgment of Lisa Wong J in Koo Ming Kown v The Baptist Convention of Hong Kong operating as Pui Ching Primary School HCA 731/2017, unreported, 30 October 2017. Simply put, in that case, the plaintiff sued the defendant in libel and malicious falsehood. The defendant was late in filing its notice of intention to defend, and subsequently defaulted in filing any Defence. The plaintiff applied for default judgment, but just one day before the hearing the defendant filed its Defence and a cross application for retrospective leave to file that Defence which was 121 days out of time. The defence raised an arguable defence to malicious falsehood, but no arguable defence to libel. As a result, the plaintiff applied for, and was eventually granted, default judgment in respect of libel only and let the defence for malicious falsehood stand. In particular, the plaintiff left the adjudication of his assertions of falsity and malice insofar as they were made in support of his claim for aggravated and/or exemplary damages for libel to the stage of assessment of damages (paragraph 44 thereof). Her Ladyship ordered (at paragraph 82 thereof) judgment in favour of the plaintiff against the defendant for libel with damages including, if appropriate, aggravated and/or exemplary damages, to be assessed.
57. Thirdly, the Plaintiff also seeks pre-judgment interest. However, Ms Cho did not make specific submissions both as to the appropriate rate and the period over which pre-judgment interest should accrue. This Court leaves the question whether the Plaintiff is entitled to pre-judgment interest to the stage of assessment of damages, as the Master, when assessing damages, can take into account all the circumstances including the time period between the time when the Plaintiff first suffered from the defamation and malicious falsehood and the hearing for assessment of damages, and decide whether it is appropriate to award any pre-judgment interest over the assessed damages. See Chim Pui Chung v Apple Daily Limited & Others HCA 1286/2014, unreported, 3 February 2017, at paragraph 169; Chan Harry Hung-Hay v Yip Sui Ping [2020] HKCFI 366, at paragraph 72; Yuen Mui Fong v Lo Kut Chie Alan [2020] HKCFI 652, at paragraphs 28 to 30.
Apology Order
58. Before leaving the matter, I say something about the Apology Order.
59. First and foremost, the Plaintiff acknowledged that to the best of her knowledge, an apology order is unprecedented in Hong Kong.
60. That said, in Chow Wing Kai v Liang Jing [2021] 2 HKLRD 1189 (paragraphs 142 to 154), HHJ Kent Yee took the view that the jurisdiction to compel an unwilling defendant to apologise is part of the general equitable jurisdiction of the Court, but the more relevant question was whether the court should exercise the discretion. He recognised that the Court’s discretion can be exercised in ‘exceptional circumstances’.
61. The Plaintiff submitted that there were exceptional circumstances in the present case. The Defendants’ refusal to apologise despite receiving the Letter, coupled with further insults and removal of the Plaintiff from the Zello Group (大街大巷), constituted outrageous conduct that prolonged her distress, embarrassment, and lost business opportunities in the Lantau taxi driver community. An apology, suitably worded and published, would equitably restore the Plaintiff’s standing as an honest driver and fleet leader and do justice to the Plaintiff.
62. The Plaintiff further submitted it is time for the courts in Hong Kong to progressively look more favourably on the idea of granting apology orders, on top of traditional damages, as one kind of relief for defamation cases. Judges around the world, submitted the Plaintiff, had written extensively on the general advantages of ordering apology on top of, or instead of, ordering monetary compensation.
63. The Plaintiff relied on Dikoko v Mokhatla 2006 (6) SA 235 (CC) (at paragraphs 68 to 70), in which Mokgoro J of the South African Court stated:-
“… The primary purpose of a compensatory measure, after all, is to restore the dignity of a plaintiff who has suffered the damage and not to punish a defendant… The focus on monetary compensation diverts attention from two considerations that should be basic to defamation law. The first is that the reparation sought is essentially for injury to one’s honour, dignity and reputation, and not to one’s pocket. The second is that courts should attempt, wherever feasible, to re-establish a dignified and respectful relationship between the parties. Because an apology serves to recognize the human dignity of the plaintiff, thus acknowledging, in the true sense of ubuntu, his or her inner humanity, the resultant harmony would serve the good of both the plaintiff and the defendant. Whether the amende honorable is part of our law or not, our law in this area should be developed in the light of the values of ubuntu emphasising restorative rather than retributive justice. … It is an area where courts should be pro-active encouraging apology and mutual understanding wherever possible. This case suggests itself as one where perhaps more could have been done to facilitate an apology. The parties worked closely together in the same environment. An apology or retraction by Mr Dikoko could have gone a long way. At no stage did he offer an apology or a retraction of his false and damaging accusations. The evidence that he led before the High Court, testifying to the high regard he had for Mr Mokhatla, was of an abstract nature and fell far short of a direct apology for the specific and baseless charges he had made. This is a case where it might have been appropriate to order an apology if this had been a majority judgment. ...”
64. The Plaintiff also relied on Proprietor of Ashdown House School v (1) JKL (2) MNP [2019] UKUT 259 (AAC) (at paragraph 256), where Judge Mark West of the UK Upper Tribunal, in the context of discrimination, stated the following by way of guidance:-
“… an apology may have a wider purpose than merely preventing further discrimination against the child in question. To the extent that an apology is an assurance as to future conduct, an order that there be an apology gives teeth to a declaration of unlawful discrimination…
… there can be value in an apology: apologies are very important to many people and may provide solace for the emotional or psychological harm caused by unlawful conduct. An apology might reduce the mental distress, hurt and indignity associated with a permanent exclusion. It might also assist with recovery, forgiveness and reconciliation. An order that there be an apology can be regarded as part of the vindication of the claimant…
… an order to make an apology may well be appropriate when there is already an acceptance that there has been discrimination or unlawful conduct or where there is an acceptance and an acknowledgment of the tribunal’s findings on responsibility…” [emphasis added by the Plaintiff]
65. In Chow Wing Kai (supra), having come to the view that it was within the general equitable jurisdiction of the Hong Kong courts to grant an apology order in libel action, HHJ Kent Yee considered authorities from Malaysia and New Zealand and summed up the position in these jurisdictions that an apology order was justified in exceptional circumstances only.
66. His Honour found the Court of Final Appeal’s decision of Ma Bik Yung v Ko Chuen (2006) 9 HKCFAR 888 to be of assistance. There, the Court of Final Appeal dealt with an appeal which concerned the scope of section 72(4)(b) of the Disability Discrimination Ordinance (Cap 487) which provides that the District Court may order that the respondent shall perform any reasonable act or course of conduct to redress any loss or damage suffered by the claimant. The Chief Justice Li (with whom Bokhary PJ, Chan PJ, Nazareth NPJ and Sir Anthony Mason NPJ agreed) concluded, at paragraph 52 thereof, that an order for an apology could be made against an unwilling defendant under that section, but observed that “with an unwilling defendant, it may well be that an apology, which will be an insincere one, would usually not be a reasonable act for him to perform”, and went on to point out that “there might be rare cases where the court could be satisfied that an apology, albeit insincere, would be a reasonable act for the defendant to perform.” Chief Justice Li further observed (at paragraph 53 thereof), that the court, even in the rare cases where the circumstances are exceptional, has to proceed with great circumspection when considering to make an apology order against an unwilling defendant.
67. In this application, the 1st and 2nd Defendants were absent from the hearing. This Court could not ascertain whether they were willing to apologise to the Plaintiff. Nevertheless, their recalcitrant attitude pleaded by the Plaintiff suggested that it was unlikely that the Defendants would apologise.
68. In any event, how the courts here should exercise its jurisdiction to make an apology order in defamation cases is undoubtedly a developing area of law. In my view, just as no summary judgment or strike-out order should be made if the claim or the defence, as the case maybe, involves issues in a developing area of law, likewise no final judgment should be entered in a default judgment application if the claim involves similar issues, particularly when the defendant is absent.
69. Upon my observations above, the Plaintiff withdrew her application for the Apology Order.
Disposition
70. I allow the Plaintiff’s application and make the following order:-
(1) Judgment be entered against the 1st and 2nd Defendants.
(2) The 1st and 2nd Defendants (whether by themselves or via any agents) be restrained from howsoever publishing, procuring and/or participating in the publication of the Words or similar words defamatory of or containing false allegations concerning the Plaintiff.
(3) The 1st and the 2nd Defendants do permanently remove and cause to be removed the Words and all similar words defamatory of and/or containing false allegations concerning the Plaintiff from the Zello app within their control.
(4) Damages for defamation and malicious falsehood, including, if appropriate, aggravated damages, exemplary damages, special damage and/or pre-judgment interest, to be assessed.
(5) Interest pursuant to section 50 of the District Court Ordinance (Cap 336).
71. Costs follow the event. I make an order nisi that the 1st and 2nd Defendants do pay the Plaintiff’s costs of this action and of this application, with Certificate for Counsel, summarily assessed at HK$56,500.
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( Aidan Tam ) |
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Deputy District Judge |
Ms Linda Cho, instructed by Paul W Tse, for the plaintiff
The 1st and 2nd defendants were not represented and did not appear
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