NG YUI TONG v. CHAN CHI KEUNG

CAMP 354/2022

[2023] HKCA 163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 354 OF 2022

(ON AN INTENDED APPEAL FROM DCCJ NO. 5924 OF 2019)

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D E C I S I O N

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Hon Cheung JA (delivering the Decision of the Court) :

I.  Introduction

1.  This is the plaintiff’s renewed application for leave to appeal against the judgment (‘Judgment’) of Deputy District Judge Jason Wong given on 1 June 2022. The Judge refused leave on 5 September 2022.

2.  Having considered the documents filed by the parties, we consider that it is appropriate to determine the application on the basis of written submissions only pursuant to Order 59, rule 2A(5)(a) of the Rules of the High Court (Cap. 4A) (‘RHC’).

3.  The Judgment below was in Chinese. However, the documents filed by the plaintiff in support of the present application are all in English. So is the defendant’s response. Accordingly, we will give our decision in English.

II.  Background

4.  This is a defamation case. The plaintiff and the defendant were members of the Representative Committee (‘Representative Committee’) of Taikoo Shing Stage III (‘TKS III’). The plaintiff was also a member of the Management Liaison Council (‘MLC’) representing TKS III. The relevant provision in the deed of mutual covenant provides that each Representative Committee may elect not more than three persons to serve on the MLC of the Taikoo Shing.[1]

5.  The plaintiff’s claim concerned a letter dated 19 June 2012 by the defendant (‘Letter’).[2] The relevant part of the Letter reads as follows :

「日期：2012年6月19日

致：太古城第三期業主代表

1. 我們將於6月22日舉行業主代表會議，以下是本人的一些看法，希望與大家分享：

…

2. 是否適宜繼續委任富山閣業主代表吳銳堂先生擔任第三期太古城聯絡議會 (MLC) 議員

1) 本人認為擔任MLC議員的人士必須能夠 (i) 認同及接受第三期業主代表會的共識立場；(ii) 與另外兩位MLC議員有商有量，不可獨斷獨行

2) 本人認為吳銳堂先生不適宜繼續擔任MLC議員一職，理由如下：

(1) 吳先生唯一、終極的目標是爭取「話事」權，這心態主宰他一切言行作為，但不符合第三期整體利益

(2) 由於現實中吳先生無法如願，令他視管理公司為敵人，並採取挑釁纏繞手段，無奈實效微少，只能為管理公司帶來無謂的困擾

(3) 吳先生取態偏激極端，情況不如他的心願，或對方與他意見不合，他便會徹底反面、割席斷交，難與他人合作，亦處處無謂樹敵

(4) 吳先生獨斷獨行，未能與另外兩位MLC議員有商有量、和衷合作 (劃線部分強調重點)

鳳山閣業主代表陳志強謹上」

6.  For ease of reference, we have numbered the paragraphs of the Letters.

Translation

‘Date: 19 June 2012

To: Owners’ Representatives of Taikoo Shing Stage III

1. Our Meeting of Owners’ Representatives will be held on 22 June. I have the following views, which I would like to share with you:-

…

2. Whether it is suitable to continue to appoint Mr Ng Yui Tong, Owners’ Representative of Fu Shan Mansion, to take up the post of Taikoo Shing MLC Member for Stage III

1) In my view, an MLC Member must (i) agree and accept the consensus and stance of the Meeting of Owners’ Representatives of Stage III; (ii) be open to discussion with the other two MLC Members and not to decide and act on his own;

…

2) In my view, Mr Ng Yui Tong is not suitable to continue to take up the post of MLC Member for the following reasons:-

(1) Mr Ng’s sole and ultimate objective was to have a final say in things. Such a mindset dictated all his words and acts but is against the overall interests of Stage III;

(2) As, in reality, things did not go as Mr Ng had wished, he viewed the management company as an enemy and resorted to provocation and stalking. Regrettably, doing so produced few results and only served to bring about unnecessary confusion for the management company;

(3) Mr Ng’s attitude was radical and extreme. When things did not go as he had wished, or when there was dissent, he would completely fall out and sever ties with others. It was difficult for him to co‑operate with others and he unnecessarily made enemies everywhere;

(4) Deciding and acting on his own, Mr Ng was not open to discussion and failed to work amicably with the other two MLC Members.  (emphasis added)

Yours faithfully

Chan Chi Keung

Owners’ Representative of Foong Shan Mansion’

7.  The Letter preceded a meeting of the Representative Committee on 22 June 2012 (‘Meeting’). The agenda of the Meeting (‘Agenda’) was circulated to members of the Representative Committee on 15 June 2012.[3]  One of the items on the Agenda was whether the plaintiff is suitable to continue to be a member of the MLC representing TKS III.

8.  It is not disputed that the defendant sent the Letter to 16 members of the Representative Committee and copied it to two members of staff (‘two managers’) in the management company of Taikoo Shing (‘Management Company’).

III.  The parties’ case

9.  The plaintiff commenced this claim in the High Court on 4 June 2018, i.e. almost six years after the publication of the Letter. The action was subsequently transferred to the District Court in 2019.

10.  The plaintiff’s case is that the statements in the Letter as underlined in [5] above (‘Statements’) are defamatory. The plaintiff sought damages and injunctive relief against the defendant.

11.  In [7] of the Amended Defence,[4] the defendant pleaded that he made the Statements contained in paragraph 2(2) of the Letter on the following grounds:

1)  The plaintiff previously stated that the owners of TKS III should adopt a system of self‑governance and have the final say in the management of the affairs of TSK III. The plaintiff was actively engaged in terminating the involvement of the Management Company in TKS III. The defendant considered that the plaintiff’s stance was not in the interest of TKS III and would not be cost‑effective.

2)  In various meetings involving the affairs of TKS III, the plaintiff severely criticised the staff members of the Management Company. The plaintiff also sent voluminous amount of emails to the Management Company. If the plaintiff did not receive a response to his satisfaction within a short period of time, he would openly scold them and cause unnecessary trouble and confusion to the Management Company.  

3)  The plaintiff was confident of the soundness of his legal knowledge. Whenever someone had a disagreement with him over the understanding of the Building Management Ordinance or the deed of mutual covenant, the plaintiff would scold and embarrass him/her. The defendant once had a disagreement with the plaintiff over a claim in the Lands Tribunal involving the salary of a security officer of the Management Company. After the defendant withdrew his support for the plaintiff, the plaintiff openly criticised the defendant in a harsh manner in an owners’ meeting held in May 2012.

4)  In some meetings where owners other than those of TSK III were present, the plaintiff would express his personal views without consulting or seeking the consent of the other two members of the MLC representing TKS III in advance. This led to a misconception that the views expressed by the plaintiff represented the views of the MLC members representing TKS III.

12.  The defendant relied on qualified privilege as part of his defence. In [9] of the Amended Defence,[5] the defendant pleaded that he wanted to share his views on the items of the Agenda, including the topic of whether the plaintiff should continue to be a member of the MLC, with the attendees of the Meeting. The defendant also pleaded that he had a social and moral duty to communicate his views to the attendees and that they had a corresponding interest in receiving them.

13.  In relation to the grounds raised by the defendant in [11] above, the plaintiff’s only response in the Amended Reply was that they were mere conjecture by the defendant.[6]  As far as the defence of qualified privilege is concerned, the plaintiff alleged that the defendant was indifferent as to the truth of the Statements and that there was ‘malice’ on the part of the defendant.[7]

IV.  The Judgment

14.  At the commencement of the trial, the Judge sought clarification from the parties on the issues to be resolved. The defendant’s solicitors confirmed that the defendant would only rely on the defence of qualified privilege, notwithstanding that justification and fair comment were also mentioned in the Amended Defence.[8]  On the other hand, it was not disputed by the plaintiff that the defendant had a duty to communicate his views to members of the Representative Committee and that those members had a corresponding interest in receiving them.[9] 

15.  Accordingly, in [6] of the Judgment, the Judge identified the issue as whether the Statements were made by the defendant to deliberately vilify the plaintiff, or, in other words, whether the defendant honestly believed that there was a factual basis for the Statements he wrote in the Letter.[10]

16.  The Judge noted that the plaintiff did not specifically deny or cross-examine the defendant on any of the grounds pleaded by the defendant in [7] of the Amended Defence. The Judge found that the defendant was an honest and reliable witness and that the Statements were made by the defendant based on what he believed to be true (Judgment [13]). There was also no evidence to suggest that the Statements were made without any factual basis (Judgment [15]). The Judge concluded that the publication of the Statements was protected by qualified privilege and dismissed the plaintiff’s claim.

17.  As to costs, the Judge exercised his discretion to award only 50% of the costs to the defendant (Judgment [16]‑[17]). He took the view that the defendant, who was legally represented, could have taken steps to bring an early conclusion of this action which lasted four years. He also took into account of the fact that some of the defences pleaded in the Amended Defence were not pursued at trial.

V.  The intended grounds of appeal

18.  In his application for leave, the plaintiff sought an order that judgment be entered against the defendant or alternatively that the case be remitted for a retrial. The draft grounds of appeal filed on behalf of the plaintiff run to 18 paragraphs. They can be summarised under the following four grounds of appeal :

1)  The Judge failed to assess ‘malice’ as a ground to defeat the defence of qualified privilege. In connection with this ground, the plaintiff also complained that the Judge failed to give adequate reasons in the Judgment ([1]‑[6] and [9]‑[16]) (‘Ground 1’).

2)  The Judge erred in holding that the publication of the Statements to the members of the Representative Committee was protected by qualified privilege when its contents concerned ‘personal behavioural matter’ ([7]) (‘Ground 2’).

3)  The Judge erred in finding that the publication of the Statements was protected by qualified privilege when the Letter was copied to the two managers who had no interest in receiving it ([8]) (‘Ground 3’).

4)  The Judge did not give the plaintiff an opportunity to make submissions on costs ([17]) (‘Ground 4’).

VI.  Our view

19.  Section 63A(2) of the District Court Ordinance (Cap. 336) provides that leave to appeal will only be granted if the Court is satisfied that the appeal has a reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard.

1)  Ground 1

20.  The main plank of the plaintiff’s argument under Ground 1 is that the Judge did not address malice as a basis to defeat the defence of qualified privilege in the Judgment.

21.  In view of the way his case was pleaded and argued at trial, we consider that the plaintiff’s criticism is unwarranted.

22.  In the first place, we are not satisfied that the plaintiff has sufficiently pleaded his case on malice. Order 82, rule 3(3) of the Rules of the District Court (‘RDC’) (Cap. 336H) provides that :

‘ (3) Where in an action for libel or slander the plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in his statement of claim give particulars of the facts on which he relies in support of the allegation of malice, but if the defendant pleads that any of those words or matters are fair comment on a matter of public interest or were published on a privileged occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he must serve a reply giving particulars of the facts and matters from which the malice is to be inferred.’ (emphasis added)

23.  In this case, the defendant expressly pleaded qualified privilege in his defence. If the plaintiff intends to allege that the defendant was actuated by express malice, he must give particulars of the facts and matters from which the malice is to be inferred.

24.  The plaintiff referred to a number of paragraphs in the Amended Reply and submitted that malice was properly raised on the pleadings. We do not agree. [48] and [58] of the Amended Reply only contain a general allegation that the Statements were published maliciously by the defendant. As A Cheung J (as he then was) held in Omar, Zarina v Chow Yee Ping (HCA 3699/2002, 24 September 2004) at [32], an allegation that the defendant ‘maliciously published’ the offending words is not a sufficient pleading for express malice in the context of the requirement under Order 82, rule 3(3) of the Rules of the High Court (the equivalent of Order 82, rule 3(3) of the RDC). Insofar as [33] of the Amended Reply is concerned, there are no particulars to substantiate the plaintiff’s assertion that the grounds relied upon by the defendant in making the Statements were mere conjecture. Crucially, the plaintiff has given no particulars to refute the examples given by the defendant in [11] above regarding the plaintiff’s past conduct as a member of the Representative Committee or the MLC.

25.  We have not lost sight of the fact that the plaintiff acted in person in the lower court. However, the plaintiff was aware of the requirement under Order 82, rule 3(3) since the text of the sub-rule was quoted in [47] of his Amended Reply.[11]  Further, the transcript shows that the Judge explained the meaning of malice in the context of qualified privilege to the plaintiff before the commencement of the trial.[12] The Judge invited the plaintiff to consider whether he would like to amend his pleadings given the lack of particulars on malice and the lack of specific denial on the grounds relied upon by the defendant in making the Statements.[13]  The plaintiff confirmed to the Judge that he did not wish to amend his pleadings and chose to press ahead with the trial.[14]  This is clearly not a case where the plaintiff had no reasonable opportunity to properly plead a case on malice.

26.  In [4] of the plaintiff’s written statements, reference was also made to [74] and [75] of his opening submissions with a view to showing that malice was raised at trial. We are not satisfied that this was the case after considering the rest of the written submissions filed by the plaintiff for the trial. In fact, in [77] of his opening submissions and [45] of his closing submissions,[15] the plaintiff submitted that the defendant failed to establish the elements of qualified privilege and categorically stated that there was no need to consider malice.[16]  In light of the position adopted by the plaintiff at trial, we do not see how the plaintiff is in a position to complain that the Judge failed to adequately address malice in the Judgment.

27.  In any event, we are not convinced that the Judge failed to consider malice in the context of qualified privilege as alleged by the plaintiff.

28.  In order to decide whether a communication was published maliciously, for the purpose of rebutting a defence of qualified privilege, it is necessary to decide two questions. First, was the occasion privileged, and if so, for what purpose? Secondly, was that the defendant’s purpose when he published the communication in question? The critical question is whether the dominant purpose for which the defendant made the communication was one other than the purpose for which the occasion was privileged. 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 that express malice can properly be found: Leung Chi Ching Candy v Yeung Hon Sing [2021] 5 HKLRD 684 at [31] and [33], citing Jonathan Lu v Paul Chan Mo Po (2018) 21 HKCFAR 94 at [17]‑[18].

29.  In this case, the first question does not arise. The plaintiff confirmed to the Judge at the commencement of the trial and admitted under cross-examination that the defendant had a duty to communicate his views on the items on the Agenda to the members of the Representative Committee and that those members had a corresponding interest in receiving them.[17]

30.  In these circumstances, the Judge was entitled to focus on the second question, namely what was the purpose for which the defendant made the Statements? The alternative formulations of the issue by the Judge in [6] of the Judgment, namely (a) whether the Statements were made by the defendant to deliberately vilify the plaintiff and (b) whether the defendant honestly believed that there was a factual basis for the Statements he wrote in the Letter, suggest that the Judge has addressed the second question with reference to the context of this case.

31.  In [12] of the Judgment, the Judge set out the defendant’s case on the grounds upon which he made the Statements. In [13] of the Judgment, the Judge noted that these grounds were not specifically challenged by the plaintiff. He found that the defendant was an honest and reliable witness and that the Statements were made by the defendant based on what he believed to be true. The Judge then concluded in [15] of the Judgment that the defendant was protected by qualified privilege. Reading the Judgment as a whole, we are of the view that the Judge has directed his mind to the dominant purpose for which the defendant made the Statements and made a specific finding that the defendant made the Statements on the basis of the grounds set out in [11] above and honestly believed that they were true. Accordingly, there is no substance in the plaintiff’s complaint that the Judge failed to consider malice in the context of qualified privilege in the Judgment.

32.  It follows from the above that there is no merit in the plaintiff’s criticism that the Judge failed to give adequate reasons in upholding the defence of qualified privilege. We consider that the Judge has identified the vital matters in contention and explained the manner in which he resolved them in the Judgment.

33.  Ground 1 has no reasonable prospect of success.

2)  Ground 2

34.  Under Ground 2, the plaintiff argued that the publication of the Statements to the members of the Representative Committee was not covered by qualified privilege and that ‘comments of personal behavioural matters are not protected’.

35.  As mentioned in [27] above, it was not disputed by the plaintiff at trial that members of the Representative Committee had a duty to communicate their views on the items of the Agenda to each other. The plaintiff is therefore not entitled to re-open this issue on appeal. In any event, communications between owners regarding the management and administration of their building are capable of being covered by qualified privilege: Leung Chi Ching Candy, at [32].

36.  Further, the plaintiff did not elaborate on the relevance of ‘comments of personal behavioural matters’ in his written statements. Insofar as it is alleged that the defendant made the Statements for the dominant purpose of vilifying the plaintiff regarding his personal behaviour as opposed to the purpose of communicating his views on whether the plaintiff should continue to be a member of the MLC, the Judge has made a contrary finding in [12] and [13] of the Judgment as to the defendant’s motive. The Judge accepted the defendant’s grounds in making the Statements, including his views on the plaintiff’s past conduct in his role as a member of the Representative Committee and the MLC. The Judge also found that the defendant made the Statements based on what he believed to be true. There is no room for the appeal court to interfere with such a finding of fact where it has not been shown that the trial judge’s findings are plainly wrong. In this leave application, the plaintiff has not identified any matter which shows that the Judge’s finding of fact is plainly wrong.

37.  Hence, we are of the view that Ground 2 has no reasonable prospect of success.

3)  Ground 3

38.  Under Ground 3, the plaintiff argued that the two managers were employees of the Management Company and had no interest in receiving the Letter. The plaintiff contended that the Judge erred in failing to differentiate between the two classes of recipients, namely the 16 members of the Representative Committee on the one hand and the two managers on the other.

39.  This issue was neither pleaded nor argued by the plaintiff at trial. In any event, we do not see any substance in this argument. It is well-established that publication must be proportionate to the necessity of the occasion and does not go wider than is required for the effective making of the communication in the ordinary course of business: Gatley on Libel and Slander (13^th Ed), [15-067]. In [20] of the defendant’s witness statement,[18] the defendant explained that (a) the Management Company was tasked with assisting the Representative Committee in issuing notices for meeting, preparing minutes and filing of all documents relating to the meetings of the Representative Committee; and (b) he copied the Letter to the two managers and considered that they had a duty to receive it. This part of the defendant’s evidence was not challenged by the plaintiff at trial.[19]  On the facts of this case, we agree with the defendant that the two managers were involved in organising the Meeting and had an interest in receiving the Letter as well.

40.  The plaintiff’s reliance on Li Ching v Koo Too Shing [1946-1972] HKC 414 at 434H is misplaced. The passages referred to by the plaintiff concerned the issue of ‘public interest’ in the defence of fair comment. They have no application in the present context involving qualified privilege and malice.

41.  We are not satisfied that Ground 3 has a reasonable prospect of success.

4)  Ground 4

42.  Under Ground 4, the plaintiff complained that he did not have an opportunity to address the Judge on costs. This ground was included in the plaintiff’s draft notice of appeal but not pursued in the plaintiff’s written statements. We are not satisfied that the complaint was made out. It is clear from the transcript that the Judge did invite the plaintiff to make submissions on costs after he delivered the judgment on liability.[20]  In [16] and [17] of the Judgment, the Judge considered the procedural history of this case and exercised his discretion in not awarding the defendant all of his costs even though he successfully defended this action. There is nothing to suggest that the Judge was plainly wrong on the matter of costs. Therefore, Ground 4 is bound to fail.

VII.  Conclusion

43.  For the above reasons, none of the intended grounds of appeal has a reasonable prospect of success, and there is no other reason in the interests of justice why the appeal should be heard. The plaintiff’s application for leave to appeal is therefore dismissed.

44.  As the application is totally without merit, pursuant to Order 5, rule 2A(8) of the RHC, we make an order that no party may request our determination to be reconsidered at an oral hearing inter partes.

45.  We make an order nisi that the plaintiff should pay the defendant the costs of this application. The costs are to be summarily assessed. Having considered the defendant’s statement of costs filed on 19 October 2022, we assess the defendant’s costs (including counsel fee) at HK$85,000.