TANG CHAU MING v. TANG SZE YUEN

DCCJ 892/2023

[2026] HKDC 1107

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 892 OF 2023

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JUDGMENT

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A.  BACKGROUND AND THE FACTUAL DISPUTES

A1.  Broad outline

1.  The plaintiff claims that, on 1 October 2022, the defendant published words which were defamatory against him (“the impugned words”). Further, and/or alternatively, he relies on the cause of action of malicious falsehood. He seeks damages for the libel, and an injunction restraining the defendant from further publishing the impugned words.

2.  The defendant does not agree that the impugned words were defamatory[1]; he pleads justification as his first defence[2]. Further, and/or in the alternative, he claims that the impugned words were published in circumstances which attracted qualified privilege[3].

3.  In reply to the defence, the plaintiff claims that the defendant published the impugned words with malice[4]. Hence, the defendant cannot seek refuge from qualified privilege.

A2.  The Yuen Pak Tso (元柏祖)

4.  The defendant is elder brother of the plaintiff.

5.  The plaintiff and the defendant are descendants of one Tang Yuen Pak. There is no dispute that, since the time when Tang Yuen Pak’s grandsons, Tang Tak Yam and Tang Kun (or Koon) Po, were alive, land was set aside and managed for the benefit of Tang Yuen Pak’s descendants. The descendants called such arrangement the Yuen Pak Tso (元柏祖) (“the Tso”), and considered it as a proper tso under Chinese customary law. But the manager(s) of the Tso were not registered with the Home Affairs Department pursuant to s 17 of the New Territories Ordinance (Cap 97).

6.  Tang Tak Yam and Tang Kun Po were each Tang Yuen Pak’s grandson through their respective fathers: Tang Tai Hung for the former; and Tang Tai Wing for the latter. As time went on, the Tso was seen to have 2 distinct groups of members: those descended from Tang Tai Hung, and those from Tang Tai Wing. At times, members who descended from Tang Tai Hung referred themselves collectively as members of “Tai Hung Tso” (大雄祖).

7.  The Tso has been managing various pieces of land within Demarcation District No 111 in Yuen Long. They can be identified by their respective lot numbers: Lot Nos 608, 610, 618, 625 and 2451. In this judgment, I shall refer to these pieces of land by their lot numbers, eg Lot 608. Tang Tak Yam and Tang Kun Po succeeded as the owners of these pieces of land on 21 February 1955.

8.  The plaintiff and the defendant are, amongst others, the grandsons of Tang Tak Yam.

9.  The plaintiff was elected as the manager (or master[5]) of the Tso in around 1996[6]. Since then, the plaintiff managed the Tso’s land in consultation with Tang Kwai Sang. Tang Kwai Sang is the younger brother of the parties’ father, and hence, the parties’ uncle; he was consulted because of his seniority amongst the descendants still living in the indigenous village in Yuen Long.

A3.  The Tso’s land

10.  In 2000, Tang Tak Yum passed away. The defendant and Tang Yuen On, the parties’ youngest uncle, were appointed as the executors according to Tang Tak Yam’s will. The 4 surviving sons of Tang Tak Yum was each bequeathed 20% of the estate; the plaintiff and the defendant each got 10%, apparently because their father (Tang Yat Ming) predeceased Tang Tak Yum.

11.  Despite the provisions in the will, the Tso’s land registered in Tang Tak Yam’s name remained to be so registered. In 2012, Tang Yuk Ming, the administrator of Tang Kun Po’s estate, succeeded Tang Kun Po to be the other registered owner of the Tso’s land.

12.  In late 2012, Tang Yuk Ming sold his half interest in the Tso’s land to Profit Luck Star Limited (“Profit Luck”). As a result, the plaintiff, the defendant, and Tang Kwai Sang commenced proceedings in HCA 19/2013 against Tang Yuk Ming and Profit Luck (“the HC Action”). The claim was based on the Tso being the true owner of the Tso’s land, and thus Tang Yuk Ming was not authorized to sell the same to Profit Luck without the consent of the members of the Tso. The plaintiff was named in the HC Action on the basis that he was the manager and a member of the Tso; the defendant was named on the basis that he was one of the executors of Tang Tak Yam’s estate, since Tang Tak Yam remained to be the other registered owner of the Tso’s land.

13.  I shall have more to say about the HC Action when I consider the defence of qualified privilege.

14.  The defendant moved back to live in the indigenous village in early 2022. Since then, he took a keener interest in the Tso’s land on the strength of being an executor of Tang Tak Yam’s estate. Leaving the details to the latter parts of this Judgment, the defendant became dissatisfied with the management of the Tso. He formed the view that the plaintiff, through his sole proprietorship business in the trade name of Heng Hing Development Co (“Heng Hing”), mismanaged the Tso’s assets.

15.  On 1 October 2022, around 40 people, all clansmen and relatives, gathered at Tang Tai Hung’s grave for ancestral worship[7]. At this gathering, the defendant distributed a document entitled “會議概要” (Meeting Summary) with 3 pages of content and 10-odd pages of enclosures (“the Document”). There is no dispute that the defendant gave a copy of the Document to 8 members of the Tso present at the ancestral worship.

16.  A copy of the Document (without the enclosures) is annexed to this Judgement.

17.  The Document was divided into 3 parts: Part A set out the alleged issue regarding the renting out of the Tso’s land; Part B set out the matters regarding the HC Action; and Part C set out what the defendant proposed to do with the Tso’s land.

18.  The impugned words appeared on the first page of the Document:

18.1.  The first part of the impugned words formed the heading for Part A of the Document:

“關於元柏祖土地出租問題 – 有人私自出租給自己公司（恒興發展）”

My translation: About the issue of renting out land for the Tso – someone privately rented out to his/her own company (Heng Hing)

18.2.  The second part of the impugned words formed part of the 3^rd numbered paragraph under Part A:

“六月十一日鄧遠安和我一起找鄧鎔耀面談，他確認他從恒興發展租608土地，此事大部份成員不知道，但至今我尚不能取得相關租約”

My translation: On 11 June Tang Yuen On and I went to have a face-to-face meeting with Tang Yung Yiu, he confirmed he rented Lot 608 from Heng Hing, most of the members did not know about this, but I have yet to obtain the relevant tenancy agreement.

19.  It is necessary for me to outline the gist of the Document so that the impugned words can be understood in their proper context:

19.1.  Part A of the Document raised issue with the lease of Lot 608 and Lot 610. It was claimed that the rent charged by the Tso was substantially below the market value. It was further set out that the defendant had previously disagreed with leasing other pieces of Tso’s land to Heng Hing. This part ended with the projected increase in the money to be shared annually by members of the Tso, if the Tso’s land was rented out at market value.

19.2.  Part B set out the defendant’s understanding that, even if the 3 plaintiffs in the HC Action prevailed, the ownership of the Tso’s land would only revert from Profit Luck to Tang Yuk Ming. The defendant queried the justification for members of the Tai Hung Tso to fund the HC Action when ultimately all members of the Tso would benefit from winning the HC Action. The defendant ended by asserting that he would withdraw from the HC Action.

19.3.  Under Part C, the defendant claimed that, since Profit Luck owned half of the Tso’s land, the remaining half interest should benefit members of Tai Hung Tso, rather than members of the Tso generally. He would look into the leases entered into for such land to see whether they were in the best interest for the members of Tai Hung Tso. He would also liaise with Profit Luck.

19.4.  The enclosures to the Document included a business registration search showing that the plaintiff owned Heng Hing, and some other documents in relation to the HC Action.

19.5.  The Document ended with the defendant’s signature, which was dated 1 October 2022.

A4.  The agreed issues

20.  The parties agreed that this court has to resolve the following issues:

20.1.  Issue 1: what is the meaning of the impugned words?

20.2.  Issue 2: are the impugned words defamatory, either on their natural or ordinary meaning, or by way of innuendo?

20.3.  Issue 3: can the defendant rely on the defence of justification?

20.4.  Issue 4: can the defendant rely on the defence of qualified privilege?

20.5.  Issue 5: what ought to be the quantum of damages should liability be established?

21.  The plaintiff gave evidence at trial, and called Tang Kwai Sang and Tang Yung Yiu as witnesses; the defendant called Tang Yuen On as a witness, on top of giving evidence himself.

B.  FINDINGS ON AGREED ISSUES

B1.  Whether the impugned words defamatory

22.  The starting point is to consider the natural and ordinary meaning of the impugned words. No evidence is admissible in such exercise; it is for the court to decide which meaning contended by the parties is the “one meaning” that the offending words bear.

23.  There is no dispute on the applicable legal principles on the issue of meaning. Mr Ng Man Kin, solicitor for the plaintiff, refers me to Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328 at §42:

“42. There is no serious dispute about the following principles to be applied in ascertaining the meaning of the words in a libel action:

(i) Words in an article are normally construed according to their natural and ordinary meaning, i.e. the meaning in which reasonable people of ordinary intelligence, with the ordinary personal’s general knowledge and experience of world affairs, would be likely to understand them;

(ii) The natural and ordinary meanings include implied, inferred and indirect meanings;

(iii) Although the same words in an article may bear different meanings to different readers (because of their temperament, knowledge or experience etc.), for the purpose of defamation litigation, the words have only one single meaning, and the court has to determine what that single meaning is;

(iv) For the purpose of ascertaining the single meaning, the court puts itself in the position of a fictitious ordinary reader;

(v) The fictitious ‘ordinary reader’ is described as one with the following characteristic:

‘He is a sort of half-way house between the unusually suspicious and the unusually naïve. He is essentially fair-minded and reasonable and does not jump to hostile conclusions on flimsy evidence; but he may be guilty of a certain amount of loose thinking and does not read a sensational article with cautious and critical care... and his capacity for implication or drawing inferences is greater than the lawyer’s... The layman reads in an implication much more freely, and... is especially prone to do so when it is derogatory...’

(vi) The hypothetical reader is taken to be the representative of those who would read the publication in question;

(vii) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which ‘can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation’;

(viii) The context and circumstances of the words in an article must be taken into consideration, and the article must be taken as a whole;

(ix) Where the alleged libel is contained in a letter, the whole of the correspondence would form part of the context, for it may be assumed that the other party to the correspondence is aware of its contents;

(x) Where there is disagreement as to what should count as context, it has been suggested that the test is what, having regard to all the circumstances, a reasonable person would be regarded as having read or seen.” (footnotes omitted)

24.  See similarly Independent Commentators Associations Limited v Joint Publication (HK) Co Ltd & Anr [2021] HKCFI 743 (Deputy Judge Khaw, SC; 29 March 2021) at §§21-22:

“21. Regarding the nature of the inquiry:-

(1) The single meaning rule applies. This means the words complained of are deemed to bear only one natural and ordinary meaning, which is the meaning that the words would convey to the reasonable reader;

(2) In determining meaning, words in a publication are normally construed according to their natural and ordinary meaning. This does not involve a technical process of construction or analysis. The relevant inquiry is what meaning the words would convey to the mind of an ordinary, reasonable, fair-minded reader;

(3) Regarding the question of how the meaning conveyed by the words to the mind of an ordinary, reasonable, fair-minded reader is determined, Jeynes v News Magazines Ltd [2008] EWCA Civ 130 provides the following guidance at §14:-

(a) The governing principle is reasonableness.

(b) The hypothetical reasonable reader is not naïve, but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking, but he must be treated as a man who is not avid for scandal, and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.

(c) Over-elaborate analysis is best avoided.

(d) The intention of the publisher is irrelevant.

(4) Further, in some circumstances, the defamation does not lie in the actual words used, but in an inferential or implied meaning that the words are capable of bearing without the need to have recourse to extrinsic facts.

22. Regarding the scope of the relevant inquiry:-

(1) The article must be read as a whole. A reasonable reader is assumed to have read the whole article complained of.

(2) The context and circumstances of the publication must be taken into account.

(3) In reading a publication in its entire context, the court will also bear in mind the general tenor of the entire publication. The fact that the publication gives a generally uncomplimentary rendering of the plaintiff will obviously affect a reasonable reader’s understanding of the specific portions or statements in the publication.”

25.  Applying the above legal principles to the present case, I have little hesitation in finding that the impugned words meant that the plaintiff breached his duties as the manager of the Tso in making secret profits, by renting out the Tso’s land to Heng Hing. I agree that the impugned words suggested that the plaintiff was dishonest, insofar as he was alleged to have profited himself behind the members’ backs. This was clearly defamatory as the impugned words must have lowered the plaintiff’s reputation as a manager in the eyes of the members of the Tso. Given the Document was distributed amongst members of the Tso, who all knew the plaintiff was the manager responsible for managing the Tso’s land, it must have been readily understood that the impugned words referred to the plaintiff but no one else. And since the Document sought to identify problems with the management of the Tso, the word “privately” (私自) must implicitly point to the plaintiff breaching his duties as the manager of the Tso in allegedly renting out the Tso’s land to Heng Hing without obtaining any proper consent.

26.  I think it is futile for Mr Stony Chan, counsel for the defendant, to suggest that the Document was simply laying out facts for the members of the Tso to consider. First, as submitted by Mr Ng, a defamatory statement is presumed to be false, and the burden of proving its truth lies on the defendant: Gatley on Libel and Slander (13^th ed, 2022) at §12-003. Mr Chan’s submission only goes to the defence of justification, but not whether the impugned words are defamatory. Further, as Lord Devlin perceptively observed in Lewis v Daily Telegraph Ltd [1964] AC 234 at 277:

“… the layman’s capacity for implication is much greater than the lawyer’s. The lawyer’s rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory.”

27.  In my judgment, the rest of the Document reinforced the inferential and implied meaning that the plaintiff had acted in breach of his duties as the Tso’s manager. The various matters referred to in the Document were clearly cited to support an inference that the Tso was mismanaged by the plaintiff. A member of the Tso could not have understood the impugned words to mean that the plaintiff acted properly in renting out the Tso’s land to Heng Hing.

28.  Mr Ng further submitted that the natural and ordinary meaning of the impugned words also included that the plaintiff was malicious. With respect, this is not understood, and I do not find the impugned words capable of bearing such meaning. First, it has not been explained to me clearly the way in which the plaintiff was alleged to be malicious, distinct from the meaning that he acted dishonestly and in breach of his duties as a manager. In addition, if malice in this context means that the impugned words sought to impute the plaintiff with an ulterior motive, such alleged motive has not been identified by the plaintiff.

29.  In light of my finding on the natural and ordinary meaning of the impugned words, it is not necessary for me to consider whether the impugned words were defamatory by way of innuendo. In any event, I do not think the plaintiff has properly set out a case of showing that the impugned words were defamatory by way of innuendo. As Mr Ng himself has cited, Lord Walker of Gestingthorpe NPJ explained the requirement of establishing an innuendo in §§122-123 of Chang Wa Shan v Esther Chan Pui Kwan (2018) 21 HKCFAR 370:

“122.  “Innuendo” is a term of art referring to the need to plead and prove particular facts which have the effect of making defamatory written or spoken words which are not defamatory in their natural and ordinary meaning …

123.  The function of pleading an innuendo is not simply to give a general indication of why the plaintiff regards the written or spoken words as defamatory. It is much more specific. It is to plead facts, and moreover facts which were known, at the time of the publication, to the audience to whom the publication was addressed … any innuendo (that is, any allegation that the words were used in a defamatory sense other than their ordinary meaning) cannot rely on a mere interpretation of the words of the libel itself by must be supported by extrinsic facts or matters … to create the extended meaning …”

30.  In my judgment, the plaintiff has failed to properly plead a case based on innuendo. The plaintiff’s case on innuendo is introduced in §17 of the Statement of Claim[8]:

“17. Further, and or alternatively, by way of innuendo [the impugned words] bore and were understood to bear the meanings as pleaded in paragraph 14 hereof.

Particulars of innuendo

(a) The plaintiff leased the Land to [Heng Hing] without informing or seeking consent from members of the Tso;

(b) The plaintiff is abusing his power and position as master/manager of the Tso and take advantage from the Tso’s property for the benefit of himself/his company;

(c) is breaching his duty as master/manager of the Tso; and

(d) is malicious.”

31.  With respect, none of the particulars is extrinsic fact known by the audience of the Document; rather, they are just interpretations the plaintiff seeks to place on the impugned words themselves. Indeed, it seems to me that the plaintiff contradicts himself when he suggests that the allegation that he rented out Tso’s land secretly is an innuendo, but at the same time he denies it to be true.

32.  In my view, the plaintiff’s case on innuendo adds nothing to his claim.

33.  I must now turn to consider whether the defendant can escape liability by relying on the pleaded defences.

B2.  Whether the defence of justification succeeds

34.  Whilst the defendant claims that Tang Yung Yiu, ie the person with whom the defendant had a face-to-face meeting according to the impugned words, admitted to him that he rented Lot 608 from Heng Hing, Tang Yung Yiu gave evidence for the plaintiff to the contrary.

35.  In my judgment, the truth of the matter can be approached in the following manner.

36.  On 1 January 2008, a written tenancy agreement was entered into between Tang Kwai Sang as the landlord, and Tang Yung Yiu as the tenant, leasing Lot 608 and Lot 610 to Tang Yung Yiu for 3 years at $14,000.00 per month[9]. The plaintiff claims that Tang Kwai Sang entered into the written tenancy agreement on the Tso’s behalf. Tang Kwai Sang gave evidence to the same effect. After considering their evidence, I accept that Tang Kwai Sang indeed acted as the landlord on the Tso’s behalf.

37.  Tang Yung Yiu was directed to pay the monthly rent to the plaintiff’s account maintained with Bank of China (“the BOC account”). The plaintiff claims that he maintained the BOC account for the benefit of the Tso.

38.  Tang Yung Yiu stated that, after the term of the written tenancy agreement expired, he continued to be in possession of Lot 608 and Lot 610 by paying $14,000.00 per month into the plaintiff’s bank account.

39.  Various accounts covering as early as 1 May 2014 have been disclosed in the present case. Whilst they have not been properly arranged and presented in the trial bundles, I find it tolerably clear that 2 sets of accounts were prepared: one for the Tso, and the other for Tai Hung Tso. Some of them have been counter-signed by either members of the Tso, or those of Tai Hung Tso, apparently during meetings for either set of members. In these accounts, the rent at $14,000.00 per month was recorded with respect to Lot 608 and Lot 610. Thus, the accounts were consistent with Tang Yung Yiu continuing his tenancy with the Tso beyond 2010.

40.  On the other hand, apart from Tang Yung Yiu’s alleged admission, the defendant has no other evidence to challenge what can now be seen on paper. Also, the defendant has not alleged that the written tenancy agreement and/or the accounts were forged, in the sense that they were only created after the event.

41.  In my judgment, Tang Yung Yiu’s evidence is credible. I accept that he has never rented Lot 608 from Heng Hing. I further accept the plaintiff’s evidence that he maintained his BOC account for the benefit of the Tso.

42.  As such, the impugned words were factually wrong when they referred to Tang Yung Yiu renting Lot 608 and Lot 610 from Heng Hing. It was similarly wrong for the impugned words to allege that the plaintiff privately caused Lot 608 and Lot 610 to be leased to Heng Hing.

43.  In my judgment, the defence of justification fails.

B3.  Whether the defence of qualified privilege succeeds

44.  In the course of the trial, I asked parties to address me on the relevance of the Court of Appeal’s decision in Leung Chi Ching Candy v Yeung Hon Shing [2021] 5 HKLRD 684[10], if at all. This case involved the publication of 6 articles by the defendant, who was then serving as the chairman of the incorporated owners of the residential estate both parties lived in. The 6 articles commented on various aspects of the estate-wide renovation proposed and managed by a previous management committee of the estate, then chaired by the plaintiff. The plaintiff claimed that the 6 articles were defamatory. Qualified privilege was put forward by the defendant as one of his defences. The trial judge found that the defence of qualified privilege was defeated by malice.

45.  Whilst the Court of Appeal recognized that the trial judge referred to the correct legal principles, it disagreed with the trial judge that malice was made out.

46.  The Court of Appeal had this to say at §31 about the proper approach to consider malice in the context of qualified privilege:-

“To decide whether a communication was published maliciously, for the purpose of rebutting the defence of qualified privilege, there are two questions to be addressed. First, was the occasion privileged, and if so, for what purpose? Second, was that the defendant’s purpose when he published the communication in question? The first is a question of law. The second is a question of fact.”

47.  Further, at §33, it elaborated on the consideration the court should have on the second question it posed:-

“As to the second question, in assessing the defendant’s purpose when he published the communication, the motive with which he did so is of crucial importance. A person may have more than one motive or purpose for making a communication. The critical question is whether the dominant purpose was one other than the purpose for which the occasion was privileged. Qualified privilege would be illusory “if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate conduct and welcomed the opportunity of exposing it”. Accordingly, in a case where a person has published what he believes to be true, “it is only where his 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 ‘express malice’ can properly be found”.”

48.  The Court of Appeal further relied on the Court of Final Appeal’s judgment in Jonathan Lu v Paul Chan Mo Po (2018) 21 HKCFAR 94 that, where the purpose for which the privilege is accorded is consistent only with the communication of a matter which is believed to be true, as is usually but not invariably the case, the defendant’s knowledge that the matter was false at the time when he communicated it, or his recklessness as to whether it was true or false, will generally be conclusive evidence that he did not make the communication for a proper purpose. It should however be borne in mind that knowledge of falsity, or indifference as to truth or falsity, is not itself the test of malice: it is merely evidence from which an improper motive can often, but not always, be inferred. Indifference to the truth of the communication is “not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true”. Even those who act carelessly, impulsively or irrationally are afforded immunity from suit “if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest. It was recognized that people were swayed by their prejudice, perhaps formed through their temperaments, their training, and/or their intelligence; they leaped to conclusions on inadequate evidence and fail to recognize the cogency of material which might cast doubt on the validity of the conclusions they reached. But despite the imperfection of the mental process by which the belief is arrived at it may still be “honest”, that is, a positive belief that the conclusions they reached were true.

49.  It was said that judges should be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they were satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. This burden of affirmative proof is not one that is lightly satisfied.

50.  The Court of Appeal held that the trial judge might have conflated the subjective test of malice in qualified privilege with the objectivity of the defence of honest comment. Therefore, it remitted the issue of malice in qualified privilege to a re-trial.

51.  Following the Court of Appeal’s judgment, I shall first consider whether the impugned words were communicated in an occasion attracting privilege.

52.  A privileged occasion is one where the person who makes the communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it: Adam v Ward [1917] AC 309 at 334; Jonathan Lu v Paul Chan Mo Po at §14.

53.  I agree with the defendant that the impugned words were communicated in an occasion attracting privilege. The impugned words concerned the management of the Tso. As a member of the Tso, the defendant must at least have an interest to convey his views to fellow members concerning the alleged mismanagement of the Tso’s assets.

54.  I do not agree that privilege should not attach because the Document was given to members of the Tso when other non-members were present at the same time. The Statement of Claim has not alleged that the defendant disseminated the impugned words other than through the Document; nor has it been alleged that the defendant repeated the impugned words orally or otherwise to any non-member during the ancestral worship. Further, even though the plaintiff has pleaded as the particulars supporting a finding of malice, that the Document could potentially reach other relatives who were not members of the Tso, I do not think this adds much to the analysis. The Document, in its written form, must have such a potential irrespective of the presence (or otherwise) of non-members at the ancestral worship, during which it was distributed. Moreover, there is no specific averment, and thus no evidence, that the defendant caused the Document to be read by non-members during the ancestral worship. I find the facts in Leung Chi Ching Candy comparable: it could be said that the 6 articles could have been read by occupants, domestic helpers, and/or other visitors who were not owners of the estate. But this was not sufficient to prevent privilege from attaching.

55.  The next step is to consider the defendant’s purpose of publishing the impugned words, to see whether the defence is defeated by malice.

56.  As I mentioned in an earlier part of this Judgment, the defendant became more interested in the management of the Tso’s land after he moved back to the live in the indigenous village in 2022. He explained the source of his interest as follows:

56.1.  On 28 May 2021, Profit Luck’s solicitors in the HC Action sent him a letter through his solicitors. The letter claimed that the Tso’s land was occupied by unknown persons without Profit Luck’s consent. He was asked to identify such unknown persons, and give details as to the whereabouts of the consideration (if any) paid by these unknown persons in occupying the land. He did not reply to this letter as he took a passive role in the HC Action.

56.2.  In November 2021, he was copied in email correspondence between the plaintiff and their solicitors in the HC Action, in which it was mentioned that Profit Luck had alleged that he had rented out Lot 608 and Lot 610 to the occupiers and received rent from them. The plaintiff denied such allegation on his behalf; but this piqued his interest in the management of the Tso’s land.

56.3.  He started to make enquiries with the local estate agents to understand the level of the market rent. He was told that the market rent was $3-4 per square foot.

57.  The defendant claimed to have paid a visit to Lot 608 in early March 2022. He left his phone number to the people working on the land, so that the tenant could give him a call. He said Tang Yung Yiu then called him up 10 minutes later. During the call, Tang Yung Yiu allegedly told him that he (ie Tang Yung Yiu) rented Lot 608 from Heng Hing, which belonged to the plaintiff. But when he sought confirmation with Tang Kwai Sang, Tang Kwai Sang told him that he (ie Tang Kwai Sang) leased Lot 608 to the Tang Yung Yiu.

58.  The defendant had further telephone conversations with Tang Yung Yiu on 8 March 2022 and 17 March 2022; he also met up with Tang Yung Yiu (with Tang Yuen On present) at Tang Yung Yiu’s office on 11 June 2022. The defendant made recordings of these conversations; the recordings and the transcripts were made available at trial.

59.  The defendant claims that in these recordings, Tang Yung Yiu admitted that he did rent Lot 608[11] as a sub-tenant from Heng Hing.

60.  I have listened to the recordings and consulted the transcripts. I have also considered the evidence of Tang Yung Yiu and the defendant in court.

61.  For the telephone conversation on 8 March 2022, the defendant said, in response to his statement that Tang Yung Yiu had previously told him that he rented land from Heng Hing, Tang Yung Yiu acknowledged in the affirmative. Further, when he asked whether Tang Yung Yiu signed any written tenancy agreement, Tang Yung Yiu answered in the negative.

62.  Tang Yung Yiu’s alleged acknowledgement came at the beginning of the telephone conversation. The recording did not clearly capture that he said “yes” in response to the defendant’s statement. In any event, Tang Yung Yiu explained that he meant to express that he was following the defendant’s conversation.

63.  After the initial exchange, the telephone conversation concentrated on the response the defendant had to make towards Profit Luck’s request for information in the HC Action, as mentioned earlier in this Judgment. Tang Yung Yiu suggested that the defendant should simply respond that he did not rent out any land. The defendant expressed doubt as to whether this would be a proper response; and in the course of doing so, the defendant asked whether it was his uncle (ie Tang Kwai Sang) who had let Lot 608 to Tang Yung Yiu. Tang Yung Yiu said he did rent Lot 608[12].

64.  In my view, Tang Yung Yiu did not say definitively that he rented Lot 608 from Heng Hing in this telephone conversation. I also had the opportunity to observe Tang Yung Yiu’s demeanour when he was cross examined by Mr Chan. I noticed that he was not on top of the factual matters he was asked to comment on; he had the tendency to use words of acknowledgement as a gap filler when he tried to follow the question being put across. On a balance of probabilities, I tend to accept Tang Yung Yiu’s explanation that he did not mean to admit that he rented Lot 608 from Heng Hing in the telephone conversation.

65.  For the telephone conversation on 17 March 2022, the defendant again says Tang Yung Yiu acknowledged in the affirmative when it was mentioned that he rented Lot 608 from Heng Hing.

66.  This telephone conversation commenced with discussion about the HC Action. The defendant then moved on to complain about the rent of Lot 608 being substantially below the market rent. It appears to me that Tang Yung Yiu was trying to explain that, when he became the tenant of Lot 608, there was no road connection, so that the rent was lower. Tang Yung Yiu further said he was asked to keep paying the same rent as time went on, so he did. The discussion then moved on to Lot 621. The defendant expressed his disagreement about letting Lot 621 to a sub landlord instead of renting it out direct to tenants[13]. In my judgment, Tang Yung Yiu’s answers to the defendant’s complaints were simply acknowledging that he was following the conversation. At no point in the telephone conversation the defendant directly pointed out to Tang Yung Yiu that it was Heng Hing, rather than the Tso, that let Lot 608 and Lot 610 to him.

67.  For the meeting on 11 June 2022, Tang Yung Yiu first inquired about the progress of the HC Action. The defendant claimed that no meeting had been convened ever since the commencement of the HC Action. He further claimed that he only managed to obtain the accounts after some difficulty. In the course of describing the difficulty, he mentioned that Tang Yung Yiu told him the landlord was Heng Hing whilst making the complaint that the rent of $14,000.00 per month was below the market value. Later on in the meeting, the defendant further mentioned that Heng Hing leased land to Tang Yung Yiu.

68.  I do not accept that Tang Yung Yiu admitted that he rented Lot 608 and Lot 610 from Heng Hing in any way during this meeting. One must bear in mind that the Tso owned various pieces of land in Demarcation District No 11; further, there were also other pieces of land owned by Tang Tak Yam that did not form part of the Tso’s assets. It was indeed true, and I have been shown some written tenancy agreements, that Heng Hing was the head tenant for some pieces of land. Furthermore, one must recall that Profit Luck’s request in the HC Action was made against all of the Tso’s land, not Lot 608 and/or Lot 610 specifically. When one considers the transcript as a whole, it is in my judgment rather obvious that the defendant was rambling much of the time; he did not really distinguish clearly between different pieces of land that Tang Yung Yiu might have leased. As such, I do not think it is fair to say that Tang Yung Yiu admitted that he rented Lot 608 and Lot 610 from Heng Hing by specifically pinpointing to a particular sentence or so in the transcript. I do not accept that the defendant has shown that Tang Yung Yiu did make such an admission.

69.  But does it mean that the defendant had no genuine belief, or he was indifferent to the truth, as to whether the plaintiff caused the Tso to let Lot 608 and Lot 610 to Heng Hing secretly? And as such, does it mean that the defence is defeated by malice?

70.  In my judgment, the plaintiff has failed to prove that the defendant subjectively knew Lot 608 and Lot 610 were not let by the Tso to Heng Hing first before further letting to the end tenant; or that he was indifferent to the truth.

71.  The transcript of the 3 conversations between the defendant and Tang Yung Yiu and the defendant’s demeanour in court have clearly shown that the defendant was not a particularly sophisticated person. The way how he presented facts was not rigorous. I find him to have the tendency of jumping around different topics, and mixing aspects of different things together as if they were one and the same. Even though his first conversation in early March 2022 was not recorded, I find it more probable than not that there must have been miscommunication between Tang Yung Yiu and the defendant that caused the defendant to form the impression that Tang Yung Yiu rented Lot 608 and Lot 610 from Heng Hing rather than from the Tso direct. This misunderstanding continued to permeate in the subsequent telephone conversations, and ultimately found its way to the Document.

72.  I find that the defendant chose to believe there was something sinister about the plaintiff’s management of Lot 608 and Lot 610 for the Tso because of his poor relationship with the plaintiff, as I shall further explain below. I accept this is just a facet of human nature; one tends to construe everything against a person whom he has formed a dim view. I do not accept this as equal to the defendant being indifferent about the truth. In my judgment, there is a subtle difference between choosing one of the 2 versions of the matter based on your personal preference, and adopting a particular view irrespective of the strength of the evidence available. As I find that the defendant misunderstood the situation with Lot 608 and Lot 610, I do not believe he blindly assumed that the plaintiff made secret profits from Lot 608 and Lot 610.

73.  The plaintiff points to the documents disclosed in the HC Action to say that the defendant knew Lot 608 and Lot 610 was rented out by the Tso to Tang Yung Yiu direct. I am afraid I cannot agree. Setting aside the defendant’s involvement in the HC Action, the last written tenancy agreement concerning Lot 608 and Lot 610 admittedly reached the end of its term by the end of 2010. Since then, there has been no documentation showing the involvement (or otherwise) of Heng Hing with these 2 pieces of land. Hence, I do not think that the defendant could have definitely known Heng Hing had no involvement with Lot 608 and Lot 610 even if he paid close attention to the documents disclosed in the HC Action.

74.  Next, the plaintiff points to the first page of the Document, in which the defendant alleged that the Tso had not convened any meeting for 10 years; I also note that this allegation appeared in the conversations between the defendant and Tang Yung Yiu. The plaintiff says this is plainly wrong when one looks at the minutes of the Tso’s meetings.

75.  The plaintiff has disclosed minutes for meetings of the Tso respectively held on 25 May 2014 and 30 July 2016. At both meetings, it was resolved that the accounts for the Tso (first for 2012-2014, and next for 2014-2016) be adopted. The defendant signed on the 2016 minutes; whereas Tang Yuen On signed on both the 2014 and 2016 minutes to signature their attendance. I reject the defendant’s claim and Tang Yuen On’s evidence that the Tso did not convene a meeting for 10 years prior to the publication of the Document in 2022.

76.  On the other hand, there were indeed no minutes from 2017 to 2022 documenting any meeting convened for the Tso. The next minutes were for the meeting convened on 7 January 2023, during which the Tso’s accounts from 2016 to 2022 were adopted. As such, it tends to support the inference that the Tso accounts were not tendered for members’ approval since the 2016 meeting. Whilst there was no rule mandating meeting to be held annually, I find the 2023 minutes go to ameliorate the wrongful sting of the defendant’s allegation about the lack of meetings to some extent.

77.  In my judgment, the falsity in the defendant’s allegation in the Document that no meeting was convened for the Tso for 10 years is insufficient to overturn my analysis above regarding the defendant’s subjective belief on the impugned words. Cross examination against the defendant did not reveal any evidence which might support an inference that the defendant intentionally exaggerated the period to bolster his claim that the plaintiff mismanaged the Tso’s assets. Quite to the contrary, I think the defendant would have thought the same even if it was specifically pointed out to him that the Tso at most did not convene a meeting since 2016.

78.  In the Reply, the plaintiff has pleaded the following matters to support his claim that the defence of qualified privilege should be defeated by malice:

78.1.  The defendant, being the elder brother, was jealous of the plaintiff being elected as the manager of the Tso. The defendant was unsuccessful in trying to replace the plaintiff. At the ancestral worship on 1 October 2022, the defendant expressed challenged the plaintiff by saying he would take over the decision and management about the Tso’s land.

78.2.  The defendant had huge hatred and animosity against the plaintiff.

78.3.  At a Tso meeting in February 2018, the defendant assaulted the plaintiff over some disputes.

78.4.  The plaintiff and the defendant co-owned Lot 1058. The defendant intended to sub-divide it and sell his part for profit as he was in need of money, but the plaintiff did not give his consent for any sub-division. The defendant was furious as a result.

79.  I agree with Mr Chan that the plaintiff has failed to prove that the defendant’s dominant intention to publish the impugned was actuated by malice:

79.1.  I agree that there is no evidence corroborating the allegation that the defendant attempted to replace the plaintiff as the manager of the Tso at any time prior to the publication of the impugned words. On the other hand, based on the defendant’s belief that the plaintiff mismanaged the Tso’s assets, I find it reasonable that he would propose to members of the Tso to take away the plaintiff’s powers. Such a suggestion, in my view, did not negate the defendant’s intention to bring the attention of fellow members of the Tso about matters concerning their interest.

79.2.  I further agree that the allegation of hatred and animosity is too general to carry any significant probative value. I note that the plaintiff has not sought to elaborate on this even in his witness statement.

79.3.  The defendant did not deny that there was a scuffle with the plaintiff in 2018, and he proposed sub-division of Lot 1058. But more importantly, I do not accept that the plaintiff has shown that the defendant’s dominant purpose of publishing the impugned words was to complete his personal vendetta against the plaintiff. It might well be the case that the defendant was more than happy to see the plaintiff’s downfall; but in my judgment, this reinforced the inference that he intended to inform fellow members about what he perceived to be the mismanagement of the Tso.

80.  In my judgment, the defence of qualified privilege succeeds; the plaintiff fails to show that it should be defeated by malice.

C.  MALICIOUS FALSEHOOD

81.  This cause of action can be disposed of shortly. I agree with Mr Chan that the plaintiff’s plea cannot get off the ground. In Fan Chak Wah Edmond v Lam Wai Keung HCA 1318/2008 (Burrell J; 26 June 2009), the court stated the relevant principles as follows:

“38. The ingredients of the tort are simple to state. The plaintiffs must prove that the words used were false, that they were published to third parties, that they were published maliciously and that special damage has resulted from the publication. The falsity of a statement is to be determined by what the words would convey of the ordinary reader.

39. What constitutes malice is more difficult. A false statement is not a malicious one if it was made in the careless belief that it was true. To determine malice there must be a finding of the maker’s motive in publishing the words. Malice or improper motive cannot be inferred from the mere absence of bona fides.

40. Finally the plaintiffs must allege and prove special damage:

“Unless the plaintiff had in fact suffered loss, which can be and is specified, he has no cause of action. The fact that the defendant has acted maliciously cannot supply the want of special damage, nor can a superfluity of malice eke out a case wanting in special damage.” (Joyce v. Sengupter [1993] 1 WLR at p.347.)

41. The damage must be a pecuniary loss. Merely seeking compensation as a result of a malicious falsehood which caused no actual loss will not suffice.”

82.  The plaintiff has not alleged any special damage in the Statement of Claim. He does not claim to have sustained any pecuniary loss. Hence, his claim under malicious falsehood must fail.

D.  QUANTUM AND RELIEF

83.  I shall briefly state my view on quantum and relief in case I am found wrong on liability.

84.  The plaintiff claims (i) general damages; (ii) aggravated damages; (iii) exemplary damages; and (iv) an injunction restraining the defendant from further publishing the impugned words.

85.  Mr Ng submits that this court should award at least $100,000.00 as general damages, to compensate the tarnish the impugned words improperly put on the plaintiff’s reputation in the eyes of his relatives and clansmen. His reputation is of paramount importance to instill confidence from other members of the Tso for his continued service as a manager.

86.  I agree with Mr Ng that the award should reflect the gravity of the impugned words and the extent of dissemination. I find $100,000.00 to be a reasonable award and I would have so awarded if liability were established.

87.  Mr Ng submits that aggravated damages are called for because the defendant has not apologized for publishing the impugned words. For exemplary damages, he submits that this is a suitable award in the present case, as the defendant’s publication of the impugned words constituted outrageous conduct. He submits that a total of $100,000.00 should be awarded as aggravated damages and exemplary damages.

88.  If the plaintiff prevailed on liability, I would agree with Mr Ng that the present case called for aggravated damages and exemplary damages to be awarded, because the defendant has not apologized for publishing the impugned words, and he must at least have no genuine belief in the truth of those words should all the defences fail. I would award $50,000.00 in total.

89.  Finally, Mr Ng submits that the defendant should be restrained from any further and future publication of the impugned words or words bearing similar defamatory meaning. Since the defendant has not retracted the impugned words nor apologized for their publication to date, if liability were established, I would have granted an injunction to restrain the defendant, either by himself or through others, from further publishing the impugned words and/or other words which bear similar defamatory meaning against the plaintiff.

E.  CONCLUSION

90.  I dismiss the plaintiff’s claim.

91.  Whilst it is trite that costs should generally follow the event, it is my judgment that the defendant should not be entitled to all of his costs. The issues as to whether the impugned words were defamatory; whether the defendant should succeed in the defence of justification; and whether he should succeed in the defence of qualified privilege are quite distinct and separate. The trial could have been much more focused had it not been the defendant’s stance that the impugned words were not defamatory or untrue. I am of the view that the defendant ought not recover costs for the issues he lost.

92.  In my judgment, it is proper to order the plaintiff to pay 1/3 of the defendant’s costs (with certificate for counsel), considering the time spent on each issue. Such costs shall be taxed if not agreed.

93.  The above costs order is nisi. Unless any party lodges an application to vary it within 14 days of this Judgment, the costs order shall become absolute.

APPENDIX