LEUNG CHI CHING CANDY v. YEUNG HON SING

DCCJ 5079/2015

[2020] HKDC 343

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5079 OF 2015

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DECISION

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Introduction

1.  By summons dated 13 December 2019, the defendant applies for leave to appeal against my Judgment dated 15 November 2019 (the “Judgment”), in which I found the defendant liable for defamation based on the publication of 6 articles.  I awarded damages in the sum of HK$400,000 in favour of the plaintiff.

2.  Unless otherwise indicated, I adopt in this Decision the same definitions used in the Judgment.

3.  It is well established that leave to appeal shall not be granted unless 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: s 63A(2) of the District Court Ordinance (Cap 336).  There is no dispute that a reasonable prospect of success involves the notion that the prospects of succeeding must be reasonable and therefore more than fanciful, without having to be probable: SMSE v KL [2009] 4 HKLRD 125 at §17.

Preliminary observations

4.  I should start off by making certain observations about the draft Notice of Appeal (the “NoA”).

5.  The substantive part of the NoA is 62 pages long containing 44 paragraphs (and numerous sub-paragraphs).  There is an attack on almost every conceivable finding of fact, although a few of them are dressed up as questions of law or alleged errors in terms of overall approach.

6.  To put the matter in proper context, the defendant’s closing submissions at trial consists of 63 pages.  It is quite plain that the defendant is effectively attempting to re-run most of the points taken at trial. 

7.  The Court of Appeal in Yap Sui Kong v Yip Fong Tim [2018] 4 HKLRD 791 warned against the preparation of ill-prepared prolix notices of appeal (at §18).  A notice of appeal should not be prepared as if it were to be read as a set of submissions (at §21). That, I am afraid, is precisely how the present NoA reads.  In addition, appellate challenges against findings of fact are subject to the well known constraints set out in Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336.  In this regard, the Court of Appeal remarked (at §22) that regurgitation of arguments already deployed in closing submissions and rejected by the primary judge by itself would not be a valid ground.  Nor would general assertions that the judge’s finding was against the weight of the evidence or that the judge failed to attach sufficient weight to a piece of evidence.

8.  In China Gold Finance Ltd v CIL Holdings Ltd (unreported, CACV 11/2015, 27.11.2015), the appellant sought to re-argue each and every point taken at trial (§9).  That notice of appeal was 48-page long with a 10-page schedule (§26).  The Court of Appeal observed that it was an abuse of appellate process (§10) and explained at §§14, 16 and 27 that:-

“14. In our judicial system, the appellate process is not designed to give a litigant (or his counsel) a platform for regurgitating his closing submissions on the evidence and factual aspects of the case again with the hope that the appellate judges may come to a different view to that of the primary judge. It is thus, as we said above, a misuse of the appellate process to place before this court submissions which, in substance, are (or should be) submissions advanced by way of closing submissions at the trial after the judge has heard all the evidence.

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16. Thus, in an appeal, it is not helpful if counsel…only repeat submissions already advanced and considered by the primary judge at the trial. The starting point should be the judgment of the primary judge and identification of palpable errors (which must be errors of such nature which warrants intervention from this court) in the judgment. The mere assertion that the finding of the judge is against the weight of the evidence or that the judge should have reached another conclusion because of points advanced in the closing submissions below are not errors coming within that category.

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27. We implore counsel (or whoever drafts a notice of appeal) to exercise discipline, proper care and professional judgment in the preparation of a notice of appeal. It should be a concise document setting out clearly and succinctly why the Court of Appeal should intervene with the judgment of the judge. In relation to findings of fact, the grounds of appeal must pinpoint the palpable errors of the primary judge. It is an abuse to canvass submissions at length in a notice of appeal. Such a practice proliferates unhelpful arguments and escalates the costs of the process. It also causes wastage in judicial resources which should be more fruitfully utilised for other purposes.” (underline original)

9.  A similar sentiment was expressed in Gotland Enterprises Ltd v Kwok Chi Yau (unreported, CACV 260/2014, 19.1.2016) at §70.  It is an abuse of process to bring an appeal with ill-considered and unsatisfactory grounds, particularly those that provide no more than a lengthy critique of the judgment rather than identify a justifiable basis for the Court of Appeal to intervene.

10.  With respect, the NoA exactly falls foul of the aforesaid principles.  It is difficult to distill what the proposed grounds of appeal are, and insofar as there are challenges against findings of fact, it is hard to discern what is said to be the basis upon which the Court of Appeal may intervene within the established constraints.

11.  Indeed, when I asked Mr To (appearing with Mr Li for the defendant) at the hearing which of the grounds of appeal are necessary or sufficient for the defendant to succeed at the appeal, he was unable to give a precise answer.  I mention this because, as I have held in the Judgment, the defendant published 6 articles each of which contains various defamatory stings against the plaintiff.  It is not sufficient for the defendant to raise an arguable ground of appeal (and there is none for reasons stated below in any case) over 1 or 2 stings (or their associated defences) when my findings regarding the other (say) 10 stings remain intact. In particular, I observe that the defendant did not raise any ground of appeal in the NoA concerning quantum.  Hence, the fact that there may be a plausible argument over 1 or 2 stings (or their associated defences) does not mean that the intended appeal (solely on liability) has a reasonable prospect of success, because there are (say) 10 other independent reasons that justify the same conclusion on liability.

12.  Upon my invitation, Mr To confirms at the hearing that the defendant relies on 7 points of principle (which may be categorised as errors of law or overall approach) for the purpose of the intended appeal, and the remaining grounds are challenges against findings of fact.  Those 7 grounds are as follows:-

(1)  In considering the issue of malice for the purposes of both qualified privilege and honest comment, I failed to consider the defendant’s subjective state of mind (NoA §1);

(2)  The Judgment omitted to deal with the evidence of one factual witness Mr Ma Chun Fat (“Mr Ma”) (NoA §5);

(3)  I approached the issue of “general bad reputation” of the plaintiff incorrectly, including the failure to consider Mr Ma’s evidence (NoA §§44.2, 44.4);

(4)  The defence of honest comment remains available if the comment is found not to be based on true facts but was protected by privilege, and that I erred in failing to consider the latter (NoA §33);

(5)  I erred in ruling that qualified privilege can only apply to communications of “imminence” when, as a matter of law, the only requirement is “relevance” (NoA §§35.4.1, 41);

(6)  I failed to properly consider the background and context of the publications when bid-rigging by contractors were said to be prevalent (NoA §§2-4);

(7)  I incorrectly construed the words “東窗事發”and “明目張膽” in §58 of the Judgment to mean that the phrases indicate the commission of a criminal offence (NoA §6).

13.  I am of the view that the challenges against my findings of fact fall far short of the required threshold^[1].  It is for the defendant to state how the factual findings come within the requisite constraints that justify intervention by the Court of Appeal (eg that I misunderstood the evidence, or there were no evidence to support my findings), and this was not done in the NoA.  Mr To sensibly did not seriously pursue these factual challenges either in his skeleton argument or at the hearing.

14.  Hence, in this Decision, I will only deal with the 7 alleged errors of principle.  In the defendant’s supplemental submissions for the hearing, a further pleading point was taken as an additional ground (although it has not been formulated in the NoA), and I will address that towards the end.

Ground 1

15.  The gist of this complaint is that even if I had found a fact to be false, it did not follow that the defendant subjectively knew it was false or that the defendant did not believe in its truth when he published related statements.

16.  I simply refer to §§113, 118 and 120 of the Judgment.  Plainly I had considered the personal circumstances of the defendant and his own admissions during cross-examination before finding that malice was established.  That is a sufficient answer to this ground.  I further add that the malice issue is only a fallback because, taking Category 1 as an example, I already held that the defamatory stings were imputations of facts (§116), and if I were wrong then the comments were not based on true facts (§117).  Unless these findings are overturned it is meaningless to just focus on the issue of malice.

Ground 2

17.  It is true that the Judgment did not recite, and I did not rely on, the evidence of Mr Ma.  The reason is because it is not relevant to the issues I had to determine.

18.  The defendant did not categorically state in the NoA how it is said that Mr Ma’s evidence is not only relevant, but if I had considered and accepted it, it should make a difference to the outcome of the case.  When pressed, Mr To explained that Mr Ma’s evidence is relevant in determining the subjective belief of the defendant (in which I understand the argument to be that since there is at least one other person apart from the defendant who held similar beliefs, it supports the defendant’s case that there was no malice, along the lines of NoA §§35.1.3 and 35.1.4).

19.  There is no dispute that I had to analyse the defendant’s state of mind, not anyone else’s.  To that extent, how Mr Ma felt and what he subjectively believed is irrelevant. Further, it was clear that the Estate was at the material time divided into (at least) 2 camps which were hostile to each other, with the defendant and Mr Ma (plus others) on one side and the plaintiff (plus others) on the other.  It is then hardly surprising that the defendant and Mr Ma shared similar thoughts and beliefs – but that in itself does not advance the defendant’s case at all.

Ground 3

20.  At trial the defendant contended that the plaintiff had a generally bad reputation in mitigation of damages.  Reliance was placed on several letters supposedly written by some owners who did not give evidence.  I addressed the issue at §§195-196 of the Judgment and I do not see any challenge to my approach or finding in §§44.2 and 44.4 of the NoA.

21.  As to the suggestion that I should take into account Mr Ma’s evidence in deciding whether the plaintiff had a generally had reputation (and I have omitted to do so), the same reasons stated in paragraph 19 above apply.

Ground 4

22.  This ground is without merit. 

23.  Firstly, the correct legal principles were set out in §72 of the Judgment.

24.  Secondly, I have held that the stings were not comments in the first place, and in any case the defence of honest comment was defeated by malice, so it is academic to debate whether a particular comment, even based on untrue facts, may still attract the defence if it is protected by privilege.

25.  Thirdly, I also have grave doubts whether “privilege” in this context includes exchanges that would otherwise have been covered by qualified privilege but the privilege was defeated by malice (which is the case here).  It seems to me contrary to principle that the exchanges should still be considered as “privileged” when in fact that privilege has been defeated.  However I do not need to express a concluded view on the matter for present purposes.

Ground 5

26.  The point can be disposed of briefly.  In §155 of the Judgment I held that when the 6^th Article was published the 118 Gate issue was no longer germane.  It was not a question of the defence being applicable only if the publication touched upon an “imminent” issue as a matter of law.  Rather the finding was one concerning malice – there was no need and no point for the matter to be raised since it was “settled”, so by using defamatory language to refer to the matter again is indicative of malice.  The same logic applies to the renovation issue.

Ground 6

27.  This ground is equally without merit.  The relevant background has been fully set out in §§13-37 of the Judgment, and for the publication of each of the 6 articles I have independently considered their respective contexts.  The matters stated in §§2-4 of the NoA do not, whether collectively or individually, indicate any error in my understanding of the natural meaning of the words used in the 6 publications.

Ground 7

28.  I have fully explained how I construed the 2 phrases in §58(3) of the Judgment.  I have even indicated that the literal meaning of the phrases may not have gone that far (although that is not how a reasonable reader would understand).  Nothing in the NoA indicates that I made an error in the process of understanding the phrases from the perspective of a reasonable reader.

The pleading point

29.  The defendant’s complaint, so far as I can understand, is that I should not have ruled on certain unpleaded matters (as listed out in the defendant’s supplemental submissions dated 22 January 2020) although they were canvassed in evidence.   The pleading point was not taken at trial (not even during closing submissions). Further, as the defendant’s ownsubmissions acknowledged, the matters were pleaded by the defendant himself in the Defence while the Reply made no substantive response.  It is therefore incorrect to say that the points were not pleaded (at least the plaintiff’s non-admission in the Reply would have put the matters in issue).

30.  Furthermore, it must now be standard practice that in an application for leave to appeal, the intended grounds of appeal should have been properly formulated (usually in the form of a draft notice of appeal) and placed before the court for consideration.  If the defendant intends to rely on the pleading point as an additional ground of appeal, he should at least have it formulated, so that if leave is given it would be clear as to the exact boundaries of the appeal ground. This was regrettably not done.  I would have dismissed the point on this ground alone.

Conclusion

31.  For the above reasons, none of the intended grounds of appeal have a reasonable prospect of success. There is no other reason in the interests of justice why the appeal should be heard.

32.  I therefore dismiss the defendant’s application for leave to appeal, with costs to the plaintiff to be paid forthwith on an indemnity basis with certificate for 1 counsel.

33.  I award indemnity costs against the defendant because, for reasons aforesaid, I am of the view that this application, in the manner it is brought, is an abuse of the appellate process: Lau Tin Cheung v Tianjin Development Holdings Ltd (unreported, HCMP 1018/2015, 27.5.2015).

34.  I direct that the plaintiff shall lodge and serve its statement of costs (restricted to this application only) within 7 days, and the defendant shall lodge and serve its statement of objections within 7 days thereafter.  I will then summarily assess costs on paper. 

35.  Last but not least, I am grateful to counsel’s assistance.