KAN CHUNG NIN, TONY v. LI KWONG MING ALIAS LI CHING FUNG

1985, No. A3199

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. Both the Plaintiff and the Defendant in this case reside at Sui Wo Court, Shatin, a complex consisting of 9 blocks of flats developed by the Hong Kong Government as part of their Home Ownership Scheme, and managed by the Housing Authority.

2. There are in all about 3,500 flats in the development and about 16,000 to 18,000 residents.

3. Like many such large complexes in Hong Kong, there is a Residents Association formed to promote the welfare of those who live there.

4. Mr. Kan, the Plaintiff in this proceedings, took up residence at Sui Wo Court about 6 years ago, and about 6 months later Mr. Lee, the Defendant, also acquired one of the flats and moved in.

5. Early in 1981 a group of residents, including the Defendant, got together to form a Residents Association, and the necessary procedures were initiated to incorporate the Association and to register it with the Companies' Registry. At that time, the Defendant was Secretary of the Association.

6. Things appeared to have moved comparatively slowly because by the following year, 1982, when the Plaintiff first met the Defendant, having been introduced by a friend with a view to joining the Association, the legal formalities has still not been completed, and indeed were not completed until the 19th August 1983, when the Sui Wo Court Residents Association became a legal entity, much of the work apparently having been done by the Solicitors' firm of Messrs. Tony Kan and Ho of whom the Plaintiff was the senior partner.

7. Following this, the Plaintiff was elected as ad hoc Committee Chairman until an Executive Committee was formed in October or November of 1983. The Plaintiff declined the nomination for Chairman and was made Honorary Life President. The Defendant was the first Chairman of the Executive Committee and it is some evidence of the good relationship which then existed between the Plaintiff and the Defendant that the Plaintiff was one of those who nominated him, and it is common ground that that good relationship continued for some six months or thereabouts.

8. What happened next is not entirely clear. The Plaintiff maintains that there was a power struggle within the Executive Committee in which he initially supported the Defendant and he then tried to persuade other members to support him, although he says that later he withdrew that support after hearing reports of the Defendant's conduct of the affairs of the Association.

9. The Defendant denies that there was a power struggle but admits that there were differences of opinion within the Executive Committee, and there is no dispute that at some stage there was a meeting of the Association at which a vote of no confidence was passed against the Defendant, after heated arguments which went on late into the night and, according to the Plaintiff, there was a call for a Special General Meeting to remove the Defendant from office. No evidence was given as to the details of the conduct of the Defendant complained of, but it is clear that at this stage there was considerable ill feeling within the Executive Committee in general and between the Plaintiff and the Defendant in      particular.

10. On 31st January 1985 the Defendant resigned from the Executive Committee of the Residents' Association together with 5 other members.

11. This then is the background to the events which give rise to these proceedings.

12. The defamation of which the Plaintiff complains is contained in a letter dated 5th March 1985 addressed "To All Members and Neighbourers" and signed by the Defendant. This letter was distributed to all members of the Residents Association and apparently posted up on 3 notice-boards in Sui Wo Court. I am told at that time the members of the Residents Association to whom this letter was distributed numbered about 300.

13. In the letter which is set out in full in the Statement of Claim, the Plaintiff is referred to by name and as a solicitor, and it is pleaded in the Statement of Claim that a number of inferences can be drawn from the wording of the letter, none of which the Defendant has attempted to deny at the hearing of this assessment.

14. However, the allegations in the letter can be divided into two groups. The first consists of allegations made directly against the Plaintiff himself, and the second about a group of members of which it is clearly implied the Plaintiff was one.

15. The more serious of the allegations in the first group include those to the effect that the Plaintiff, as a result of his behaviour had been removed from a position he held with the Hong Kong Home Ownership Scheme Housing Estate Affairs Association, that he had broken promises, that he had discussed matters of the Association and in particular of the Executive Committee with newspapers, as a result of which the reputation of the Association had been adversely affected.

16. The second group includes rather more general allegations that members of the Association, and in particular the Executive Committee, had exploited the Association for their own political ends and to promote their own interests, had accused the Defendant and those siding with him of wasting resources of the Association, and had caused "Defamatory big-character posters" to be published concerning the Defendant.

17. As I have said, it was not denied by the Defendant in evidence or by his Counsel that the inferences as alleged by the Plaintiff could not be drawn from the contents of the letter in question, but clearly the allegations made against the Plaintiff by name are of a far greater severity than those made against a group of which he was by implication a member.

18. Another matter which is significant in considering the severity of the defamation is the timing of the publication of the letter.

19. The letter is dated 5th March 1985, and it was distributed to all members of the Residents' Association apparently the same day. This was precisely two days before the elections were due to take place for the District Board. The Plaintiff, as the Defendant well knew, was standing as a candidate in the election for Shatin District Board. Indeed, he had his campaign office within the Sui Wo Court Complex.

20. As things turned out, the Plaintiff was elected, although on the day before the election he says that many people came to see him asking for an explanation of the letter, and he believes that the number of votes cast in his favour was severely reduced as a result. Although he concedes he has no direct evidence of this.

21. The first matter I have to consider is the injury suffered by the Plaintiff which includes the damage to his reputation and injury to his feelings.

22. Mr. Chan has submitted on behalf of the Plaintiff that the severity of this case lies in the fact that it was an attack, or a series of attacks, on the Plaintiff's integrity as a person occupying a position of trust and that this is more damaging than attacking his competence as a solicitor. I think that is right, but I would go further and say that the fact that the Plaintiff was identified in the letter as a solicitor, clearly showed an intention to damage that part of his reputation, i.e. his professional reputation, as well as that as a man in a position of trust and a member of the Residents' Association. However, I cannot ignore the fact that this letter was only circulated to some 300 members of the Residents' Association, the Defendant having denied any knowledge of the letters which were posted on the notice-boards, evidence which I accept. It was therefore published in a fairly limited geographical area and to a restricted group of people, and therefore cannot be considered in as serious a light as defamatory matter published in a newspaper or other publication of wider circulation.

23. The Plaintiff, however, is, as I have said, a solicitor, a prominent member of Hong Kong Society generally, and a man of considerable standing in the community in which he lives. The letter was published solely amongst those people who are his neighbours and whom he sees regularly, and who until then had looked up to him no doubt with a great deal of respect. There can accordingly be no doubt that his reputation was severely tarnished in the minds of at least some of them, and that he was caused considerable embarrassment. Additionally the timing of this letter, being clearly intended to affect the result of the District Board Election, must have caused the Plaintiff considerable distress, and worry about its effect on the outcome of those elections.

24. In the event, it appears to have made little difference to his standing in the community at large outside the closer confines of Sui Wo Court, as he was in fact elected, and since then has served as a member of numerous committees as Chairman of the Development and Housing Committee of Shatin District Board, as legal adviser to the Hong Kong Home Ownership Scheme Housing Estate Affairs Association, as Director and Legal Adviser to Shatin Sports Association, and Legal Adviser to other Committees and Associations. It is therefore apparent that the effect, if any, outside the community in which the Plaintiff lived was comparatively short-lived, but it is bound to have had. a longer term effect upon his reputation among the members of the Residents' Association to whom it was circulated.

25. The other matter I have to consider is the conduct and attitude of the Defendant in this case.

26. The letter was published on the 5th March 1985, a letter before action was sent to the Defendant on the 15th March 1985, and in the absence of any apology or other positive response, a writ was issued on the 17th May 1985. A defence was filed on the 14th June 1985, and finally the Defendant consented to judgment being entered against him in December 1985 with damages to be assessed.

27. Throughout the entire history of this case, the Defendant has had no time offered an apology for, or a retraction of, any of the allegations made against the Plaintiff. As Mr. Chan has pointed out, not even at the hearing of the assessment was an apology offered by the Defendant when he gave evidence himself or by his Counsel on his behalf. The only inference I can therefore draw is that he is unrepentant.

28. There is further evidence of the malice of the Defendant, not only in the allegations contained in the letter, but in the timing of its publication, which was clearly intended to do the maximum possible harm to the Plaintiff in his bid to be elected to the Shatin District Board.

29. Taking all the circumstances of this case into account, what then is a proper award of damages?

30. There is little to be gained by comparing previous actions for defamation in Hong Kong as each must rely peculiarly on its own facts. However, both sides have referred me to the case of Melvin Wong v. Jockey Daily News Ltd. & anor., High Court Action No. 2469 of 1984, not in regard to the facts, which are totally different, but as a guide to the level of damages which have recently been awarded in Hong Kong. In that case, Deputy Judge Barnett awarded $75,000 for a libel published in a magazine circulating in Hong Kong and in Singapore.

31. Clearly if one were to look at this matter solely in terms of the geographical area, then this case is less serious, but I must also take into account the social standing of the Plaintiff, his standing in the admittedly small community within which the letter was published, and the effect that it clearly had on him personally and on his reputation.

32. Taking into account all these matters, I am of the view that a proper award of damages in this case is $65,000, and there will accordingly be judgment for the Plaintiff in this sum.

33. There will be an order for costsin favour of the Plaintiff to be taxed if not agreed, and there will also be a certificate for Counsel.