WONG WING SUN v. FONG YIU TONG, FRANCIS AND OTHERS

DCCJ 5078/2014

[2019] HKDC 517

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5078 OF 2014

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JUDGMENT

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1.  This is a defamation claim with regard to a Performance Appraisal form and documents produced concerning the procedure. The plaintiff is an Operators and Training Officer (“OTO’) in the 4^th defendant, Civil Aid Service (“CAS”) and the 1^st, 2^nd and 3^rd defendants were his superior officers at the relevant time.

Background

2.  The background of the case is not in dispute.

3.  The plaintiff joined CAS as an OTO in September 2001 and has been in the same grade since.

4.  This case concerned the Performance Appraisal form for the period 1 April 2008 to 31 December 2008 (the “Appraisal form”). The appraisal was performed by the plaintiff’s direct supervisor, the 1^st defendant (as the “Appraising Officer” or “AO”) and counter-signed in turn by the 1^st defendant’s own direct supervisor, the 2^nd defendant (as the “Countersigning Officer” or “CO”). Thereafter, Part 5 of the Appraisal form was completed by D3 (a “Reviewing Officer” or “RO”).

5.  The plaintiff objected to the Appraisal form because the “Overall Performance” was “Good” (as opposed to “Very Good” in the previous years).

6.  The objection triggered a procedure which required the AO, that is the 1^st defendant, to explain a write-up in response to explain the grading and this was dated 3 May 2010 (the “Write-up”).

7.  The plaintiff continued to object so this triggered an interview between the plaintiff and the 2^nd defendant who then set out the facts and his comments and opinion in a “Confidential Memo” dated 29 October 2010 (the “Memo”) to the 3^rd defendant.

8.  Then the plaintiff wrote two letters of complaint (dated 31 January 2011 and 18 July 2011) to the Civil Service Bureau and the matter was referred to the 3^rd defendant as the officer responsible. The 3^rd defendant conducted an investigation (including interviewing the plaintiff and the 1^st defendant, and preparation of an investigation report by 2 CAS officers) and prepared an “Observation Notes” on 3 October 2010 (the “Observation Notes”) concerning his findings, assessment of the complaint and course of action to deal with the complaint.

9.  It is the plaintiff’s case that the Appraisal form, the Write-Up, the Memo and the Observation Notes all contained defamatory statements.

The plaintiff’s case

10.  The plaintiff alleges that the following are defamatory:

i)   The Appraisal form:

“Overall Performance…Good”

ii)   The Write-Up (the full passages were quoted in the Amended Statement of Claim (“ASOC”) so I need not repeat them here, but here are some of the passages underlined in the ASOC):

“…and was not enthusiastic to get the job better done…Mr. Wong often had lax attitude towards his job…he claimed that the duty involved too much work and the schedule too tight as he needed to take time-off and perform instructional duties in the following week…Mr. Wong’s lack of commitment to his duty…It was based on such slippage in his delivery of work, reliability and output quality that…also gave him a lower rating (a “C” compared with a “B” in the previous year) in the aspects of “Efficiency” and “Power of Analysis”…Mr. Fong was also found rather passive in both daily duties and training...Mr. Wong no longer demonstrate the commitment and determination for self-enhancement and career advancement during that period…While Mr. Wong fulfilled the basis requirement of his post, he did not sustain the same level of performance and showed little signs of improvement throughout the above-mentioned period, therefore…did not find it justified to give him the same rating for his overall performance as in 2007”.

iii)The Memo (as stated above, this was a confidential communication from the 2^nd defendant to the 3^rd defendant reporting on subsequent actions after the plaintiff’s objection, e.g. the Write-Up and the interview etc. and the 2^nd defendant’s decision afterwards):

“I told him (i.e. the plaintiff) that I should endorse the additional information (i.e. the Write-Up) if he could not provide evidence to justify it as a false statement. He only denied the observations provided by his Supervising Officer and objected (to) the further comments.”

iv)  The Observation Notes:

“Whilst no concrete evidence / facts were provided in the Complainant’s (i.e. the plaintiff’s) letter to support the accusations, most of the passage was spent to express the Complainant’s (i.e. the plaintiff’s) personal emotions and grievances. It indicated that the Complainant (i.e. the plaintiff) was overwhelmed with a feeling of victimization and a mistrust of the management…”

The legal principle

11.  The legal principles of defamation are trite and I need not repeat them here.

12.  Firstly, I do not think there is any room to argue as to the meaning of the words in the statements taken in their natural and ordinary meaning: this is an appraisal process so one would expect use of frank languages which should mean as they are read. So if the appraisee has been underperforming, one important purpose of appraisal must be for the appraisers to tell him precisely that. Arguably, the purpose may be better served by “calling a spade a spade” without having to tiptoe around any fragile egos.

13.  There is therefore, no question that a bad appraisal report would “lower the estimation in the eyes of right-thinking members of members of society and adversely affect his reputation” (assuming the statements were publicised to such members of society) or give “an imputation of inefficiency or incompetence in a person’s profession or calling”.

14.  Secondly, I have informed the parties right from the beginning of the hearing that it was not the function of this court to review the merits of the appraisal process. The appraisal process has gone through to its apparent conclusion and if the plaintiff still objected to the findings, there might be other more suitable forums for this.

15.  However, as the defendants have raised a defence of justification (amongst others), the court would still need to looking into the facts surrounding the appraisal procedure.

Defence of Justification

16.  It is trite that in such a defence, the burden is on the defendant to show that the imputation is substantially true, and the proof of “substantial truth” is an objective one.

17.  Much time has been spent in court concerning the details of various events occurring during 2008: the 40^th Anniversary Percussion Performance Event (when the plaintiff was the staff coordinator), the plaintiff’s preparation of guest list and “thank-you” letters, the application for leave by the plaintiff, the Outstanding Cadet Selection 2008 event, daily duties and training meetings etc.

18.  I need not go into details here. I found that the 1^st defendant’s evidence regarding the inadequacy of the plaintiff’s performance in such events credible and supported on the whole by evidence in various emails correspondence and duty allocation tables.

19.  For example, from the evidence before me, I find that the plaintiff had failed in finalising the guest list in time and had shifted those duties assigned to him to someone else (who, according to the 1^st defendant, was less qualified to do so and resulting in the 1^st defendant having to complete the work himself). It was also clear that the plaintiff decided to take time-off leave after the anniversary event even when the rather urgent duty for preparation of “thank-you” cards was assigned to him. He also did not follow the proper procedure to apply for leave. The way he just left the time-off record book on the desk of the 1^st defendant (without giving any prior verbal or written notice to the 1^st defendant nor having received any prior approval from the 1^st defendant) was discourteous to say the least.

20.  Further, the plaintiff’s complaint that he had been assigned to work harder and longer hours than his colleagues were not substantiated by contemporaneous records and the evidence from the 1^st defendant.

21.  The plaintiff would have all the time in the world to adduce evidence from witnesses and documents to support his case which was, in effect, an objection to the findings of the appraisal procedure. However, the plaintiff had produce nothing more substantial than his own oral evidence and bare denial.

22.  Of course, from the Memo and the Observation Notes, the 2^nd and 3^rd defendants had already made similar observations during their investigations. I agree with them.

23.  As such, I find that the statements made in the Appraisal form, the Write-Up, the Memo and the Observation Notes were justified. In fact, given the attitude and performance of the plaintiff, I would think that giving a “Good” in the Appraisal form was already generous.

Defence of Qualified Privilege

24.  More importantly, given the purpose for the appraisal procedure in any company or institution, this must be the general applicable defence.

25.   As Lord Atkinson stated in Adam v Ward [1917] AC 309, a qualified privilege defence can be raised when the person “who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it was made, and the person to whom it is so made has a corresponding interest or duty to receive it. The reciprocity is essential.”

26.  In the context of an appraisal procedure, it is clear that any statements of facts, comments or opinion regarding the appraisee’s work performance must be covered by this defence unless malice could be shown. It is the duty of the appraiser to communicate those statements to the appraisee (and relevant persons involved in the procedure) and the duty of the appraisee to receive them. (see Wong Yim Man Anthea v Wong Ho Ming Felix, HCA 352/2011 and Leung Kwai Ling v Carmel Chow, HCA 1784, 1785, 2198/2011; 194, 195, 251/2012).

27.  Given my findings on the evidence as stated above and the already established defence of justification, I find no evidence of malice on the part of the defendants.

Breach of employment contract and tortious duties

28.  In addition to the defamatory action, the plaintiff also raised these additional causes of action.

29.  In summary, the plaintiff was basing such claims on the same facts and pleaded that there were implied terms in the contract and duty of care owed that the appraisal procedure should be performed fairly, honestly etc.

30.  As above, I find that the findings of the appraisal fair and honest. There is also no evidence to show that the procedure was defective in any way, the objections and complaints of the plaintiff were properly and thoroughly investigated and reported.

31.  In fact, it was somewhat an irony that such investigations and reports were themselves subject to the plaintiff’s defamatory claim when they came into existence precisely because of the plaintiff’s objections and complaints which were required to be dealt with by proper procedures.

32.  In fact, the circumstances of the case appear to infer that the plaintiff has been underperforming but was bitter about an honest and fair (and, I would add, already generous) appraisal report, and he took all procedural processes open to him to create trouble (as I can only speculate, for the purpose of attempting to intimidate or to exact revenge upon the defendants) whilst all along producing no substantive evidence to dispute the findings of the appraisal procedure.

33.  I would think that the plaintiff, after doing all those, then decided to bring the same “bare denial” case to the court might be considered an abuse of process.

Order

34.  I would accordingly dismiss the plaintiff’s claim against the 1^st, 2^nd, 3^rd and 4^th defendants.

35.  As for costs, I have given some consideration on whether some forms of costs penalties would be suitable under the circumstances. However, I would simply give an order nisi for the costs of this action be paid by the plaintiff to the 1^st, 2^nd, 3^rd and 4^th defendants to be taxed if not agreed, with certificate for counsel.