TSE WAI CHUN PAUL v. ALBERT CHENG AND OTHERS

1996, No. HCA 9983

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL JURISDICTION

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D E C I S I O N

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1. I would not allow the application for amendment. The crux of the matter lies in the pleading of the natural and ordinary meaning of the words in para 9(c)(d)(f) & (h). Para 9(c) reads: "the threat and/or intimidation and/or influence were improper, unjustified and/or made with a sinister motive"; (d) "the Plaintiff gave advice to Au in regard to Au's claim for compensation from Au's previous employer without regard to Au's interests"; (f) "the Plaintiff had acted unprofessionally and/or unethically by reason of the said conduct towards Au Wing Cheung"; (h) "on the one hand the Plaintiff being the honorary legal adviser to the Committee, was acting for the interest of the travel industry which included Au's previous employer. On the other hand, by giving advice to Au on whether he should claim compensation from his previous employer, he purported to act for the interest of Au. In the circumstances, the Plaintiff put himself into a conflict of interest situation".

2. I am conscious that in setting out the natural and ordinary meaning of the words, the Plaintiff should exercise care since a meaning which is pleaded excessively widely may cause subsequent embarrassment. Further, it may assist the Defendants to introduce into a plea of justification acts of misconduct other than those referred to in the words complained of.

3. In the present case, from my reading of para 9 in particular in the context of having set out the allegedly defamatory words, the "conflict of interest" and/or the allegedly "sinister motive" and/or the "failure to disregard Au's interest" and/or the "acting unprofessionally and/or unethically" all pertain to the position of the Plaintiff allegedly as honorary legal adviser to the Joint Committee and previously as lawyer for Au and Wong.

4. Accordingly, I do not read para 9(c)(d)(f) & (h) in such a way as to permit the Defendants to now plead justification on the grounds that the Plaintiff was in a position of conflict of interest as a result of his being interested in the shares of the former employer.

5. If, however, I am wrong and the words of para 9 can be read so generally as referred to, the Defendants have, in my view, failed to exercise due diligence in not searching the ownership of the previous employer of Au at an earlier point in time in preparation for this trial. I refer to Gatley at para 27.33.

6. In my view, it should have occurred to legal advisers on a defence of justification to see if circumstances of conflicts in other capacities would arise, that is assuming that they could read the allegations in para 9(c)(d)(f) & (h) so widely.