BRIAN MONTGOMERY v. CHUNG CHEUK HUNG, HERO

HCA 1373/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1373 OF 2015

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D E C I S I O N

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1.  This is a libel claim and the defendant is applying for security for costs.

BACKGROUND

2.  Both the plaintiff and the defendant are musicians: the plaintiff is a professional international opera singer and the defendant is an amateur singer.

3.  The case stems from a series of angry email communications between the plaintiff and defendant in around March 2015 which the defendant subsequently released to various people in the music circle.  There is no need to go into details but, suffice to say, the plaintiff alleged that certain passages in the emails contained defamatory statements but the defendant claimed that he had to “relate” the plaintiff’s “view…to musical friends and acquaintances…as a reminder (or warning)” so that “they won’t suffer the same experience as the defendant…”

4.  It is not in dispute that in January 2016, the plaintiff has prematurely terminated the tenancy of his Hong Kong apartment and has been renting a place in New York.  He gave a friend’s Hong Kong address as the postal address for the court proceedings.

5.  Against this background, the defendant is seeking an order for security for costs in the sum of HK$1,128,800 on the basis that the plaintiff is ordinarily resident out of jurisdiction (O.23 r. 1 RHC)

THE LEGAL PRINCIPLE

6.  There is no dispute between the parties on the legal principles.  Both counsels have quoted extensively from authorities and there is no need to repeat all of them here.

7.  The meaning of “ordinary residence” is summed up by Lord Scarman in R v. Barnet LBC Exp. Shah [1983] 2 AC 3409, p344:

“There are two and no more than two, respects in which the mind of the “propositus” is important in determining ordinary residence. The residence must be voluntarily adopted…And there must be a degree of settled purpose. The purpose may be one; or there may be several…This is not to say that the “propositus” intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family, or merely love of the place springs into mind as common reasons for a choice of regular abode….All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled…For if there be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established provided only it is adopted voluntarily for settlement purposes.”

THE MATTERS IN DISPUTE

8.  The plaintiff’s case is that, being an international artist, over the years, he has travelled frequently and extensively overseas despite having Hong Kong as his ordinary place of residence.  He owns a business “Classical Vocal Arts” here with a live tax file as well as a Permanent Hong Kong Identity Card.

9.  The plaintiff claimed that he needed to be “temporarily” absent from Hong Kong for two reasons. “The first and immediate reason was that my aging mother living alone in New York ran into health problems and needed my company in terms of daily care”.  This was the reason why he terminated his tenancy in Hong Kong in January 2016.  The second reason was his return to the New York Metropolitan Opera in recent years and also the need to be present in New York for “auditions and discussions of new arrangements for professional singing”.

10.  The plaintiff also said that his rented room in New York was “humble accommodation” which would allow him to have flexible arrangement to return to Hong Kong regularly for his work.

11.  The plaintiff claimed that his aim was to return to Hong Kong as soon as circumstances permit.

DECISION

12.  The fact that the plaintiff is an international artist who travels extensively does not help determine the question of his ordinary residence: his workstyle means that he may have equally chosen New York, Hong Kong, or anywhere else in the world as his ordinary residence.  One must therefore look at the evidence: e.g. amount of time spent in that place, nature of his presence there, connection with the place, any degree of continuity or permanence etc.

13.  The plaintiff has no landed property in Hong Kong but is renting accommodation in New York.  He is using his friend’s address in the current action.

14.  The plaintiff said the “modest accommodation” in New York would allow him to return to Hong Kong “regularly”.  However, in his affirmation dated 11 January 2017, he only gave evidence of 2 occasions of returning to Hong Kong: once in June 2016 and once in January 2017.  Thus, since terminating his tenancy in Hong Kong in January 2016 and up until January 2017, there is only evidence that he has returned to Hong Kong twice, or no more “regular” than once every 6 months.

15.  The purpose of his return was “pursing his business” which appeared to be teaching.  His stay in June 2016 was not long: only three weeks.  He did not give evidence as to his length of stay in January 2017.

16.  It also appears that at present, the plaintiff does not have any continued employment or other commitments in performance, business or otherwise which requires a longer period of stay in Hong Kong.

17.  The plaintiff did have continued employment in Hong Kong before: in the Statement of Claim, he stated that he had been the Head of Vocal Studies in the Hong Kong Academy for Performing Arts (“APA”) for some years but has departed.

18.  In his affirmation, the plaintiff talked about his “return to the New York Metropolitan Opera” in recent years, and also about the need to be present in New York for auditions which did actually secure singing roles for him in Germany and USA in 2017 and 2018.

19.  Thus, from an objective point of view, although the plaintiff might have stronger ties with Hong Kong when he was employed by the APA, since his departure from that employment, he has pursued a return to performance on the international stage (with a certain degree of success as his evidence clearly showed). His current ties with Hong Kong is for teaching which may only requires short periods of stay a few times a year.

20.  The plaintiff also said that he would need to take care of his aging mother living alone in New York.  However, Mr. Thomas Lai, Counsel for the plaintiff, submitted that the mother did not have a very serious or terminal disease so this was not a case of someone leaving Hong Kong to visit a relative in an emergency situation.

21.  The plaintiff also claimed that most of his friends and voice pupils are in Hong Kong, but that is not enough to show that he has voluntary adopted Hong Kong for settlement purposes.

22.  In all, the plaintiff only gave a bare assertion that at some point in the future, “as soon as the circumstances permit”, his intention was to return to Hong Kong.  However, I see little evidence or reasons why he would: at this current time, the plaintiff has no resident address and no landed property in Hong Kong, his relative (mother) whom he is caring for is in New York, his international performing career clearly gravitates towards New York, and his “teaching business” only requires him to be in Hong Kong for short periods (despite being an “important source’ of income).

23.  Mr. Lai also suggested that the plaintiff could be ordinarily resident both in New York and Hong Kong.  The evidence of this case as stated above clearly does not support that.

24.  As such, I am satisfied that the plaintiff is ordinarily resident out of jurisdiction.

25.  The court shall now look at all the circumstances and see what is just.

26.  Both counsels argued about the merit of the claim and defence.  It is not the purpose of this court to conduct a mini‑trial but, suffice to say, I am of the view that the issue of qualified privilege appears very much alive and this is clearly not a case where the defence is so weak that it is unjust to order a security for costs.

27.  The plaintiff has also made a plea of impecuniosity: the defendant has applied for a sum of HK$1,128,800 as security for costs.  The plaintiff claimed that he was a humble artist of modest income and did not have this amount of money and would have difficulties raising this sum.

28.  The court appreciates the risk of stifling the claim but must also consider what is just and fair between the parties.  Libel action can be very expensive and risky, and parties should carefully weigh the risk against the potential benefit.

29.  I would consider the sum of HK$1,128,800 excessive for defendant’s costs in the action up to the parties’ exchange of witness statements.  Having considered the nature of the case and the defendant’s skeleton bill of costs, I think that a reasonable sum would be HK$350,000 to cover defendant’s costs up to the date of the trial.  This sum does not, of course, include the costs of and occasioned by this application.

ORDER

30.  I give the following order:

a)   The plaintiff do within 28 days from the date of this order give security for the defendant’s costs up to the date of trial in the sum of HK$350,000, and until such security be given all further proceedings be stayed;

b)   There be liberty to apply for further security for the defendant’s costs.

c)   There be an order nisi for the costs of and occasioned by this application be to the defendant with certificate to Counsel.

d)   If no application to vary the costs order is made within 28 days, the defendant is to submit and serve a summary statement of costs within 7 days thereafter, and the plaintiff is to submit and serve a summary list of objections within 7 days thereafter for the summary assessment of costs.