LIU KWOK FAI ALVAN AND ANOTHER v. WOLF RENE KARL AND ANOTHER

HCMP 1510/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1510 OF 2015

(ON AN INTENDED APPEAL FROM DCCJ NO. 3204 OF 2014)

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JUDGMENT
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Hon Kwan JA (giving the Judgment of the Court):

1.  This is the plaintiffs’ application for leave to appeal against the judgment of Deputy District Judge W Y Ho in an action for defamation given on 16 March 2015 after a three-day trial (“the Judgment”). The parties are neighbours in a development called The Chalet, which consists of four detached houses. The plaintiffs live in House D and the defendants live in House B.

2.  The judge found that the words complained of (“the Subject Paragraph”) in the defendants’ letter to the owners in the Chalet dated 9 January 2013 (“the Letter”) did not refer solely to the plaintiffs but made reference to the owners of Houses A, C and D, which would include the plaintiffs[1].  She found the Subject Paragraph to be defamatory[2].  The action was dismissed because the judge upheld the defence of qualified privilege and ruled against the plaintiffs on the issue of malice[3].

3.  The plaintiffs sought leave from the judge to appeal against the Judgment.  Their trial counsel, Mr Paul Leung, advanced 12 grounds of appeal.  The judge refused leave in a judgment handed down on 9 June 2015 (“the Leave Judgment”).  The plaintiffs renewed the application in this court by Mr Pow, SC, who appeared before us with Mr Leung.  Only one ground of appeal is now pursued in the draft notice of appeal, which is as follows:

“The learned judge failed to deal with, make findings on and/or otherwise adjudicate upon the case of malice pursued by the Plaintiffs at trial as particularised in the first part of Paragraph 5A(2) of the Amended Reply to Amended Defence, namely, whether or not in publishing their letter of 9 January 2013 (in particular, the words complained of), the Defendants were actuated by a dominant motive of giving vent to their personal spite and/or ill-will towards the Plaintiffs.”

4.  Mr Pow drew attention to the fact that there are many types of situation which can defeat the defence of qualified privilege, one being that “the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames” (Horrocks v Lowe [1975] AC 135 at 150F).  He submitted that despite this aspect of the plaintiffs’ case was pleaded in the Amended Reply, referred to in the plaintiffs’ written opening and closing submissions, and featured prominently in the cross-examination of the defendants, the judge did not deal with this at all in the Judgment and pertinent paragraphs in §§53 to 55 of the plaintiffs’ closing submissions were “ignored” as only §52 was quoted in the Leave Judgment.

5.  Mr Pow contended that had the judge properly considered this aspect of the plaintiffs’ case, there should be ample evidence to find in the plaintiffs’ favour there was a dominant motive of the defendants to give vent to personal spite and ill will towards the plaintiffs and malice would have been established.

6.  He relied on the following evidence: the finding that ever since the defendants moved into House B in 2005, the relationship between them and the plaintiffs had been “acrimonious”[4]; that “antagonistic and discourteous” letters were sent by the defendants to the plaintiffs in 2005 regarding the renovation works carried out by the defendants at House B, which culminated in a formal notice given by the owners of Houses A, C and D to the defendants in 2007 to stop using their chimney; that in 2007 the plaintiffs brought an action in the High Court against the defendants for an injunction requiring them to demolish a number of building works and this litigation carried on for four years until the plaintiffs discontinued their claim in 2012 but there is still an outstanding counterclaim; and that just as the defendants had started to rebuild a chimney in December 2012, they received the joint circulation letter from the owners of Houses A, C and D expressing objection to the works and asking them to stop all such works.  The Letter was sent to the owners in the Chalet three days after the joint circulation letter.

7.  Mr Pow emphasised these aspects of the evidence of the 1^st defendant: that he considered the plaintiffs as attacking his dream house, that his initial reaction on seeing the joint circulation letter was “Here we go again!”, and that he knew the plaintiffs were the proponents in issuing the said letter.  He relied also on an emotionally charged “speech” given by the 2^nd defendant towards the end of her testimony when Mr Leung started to put the plaintiffs’ case to her.  He submitted that on seeing the joint circulation letter, the defendants’ anger towards the plaintiffs got the better of them, they could not “internalise all that negative energy” towards the plaintiffs.  Hence, there was sufficient evidence to find that the Letter was issued to give vent to the defendants’ personal spite and ill will towards the plaintiffs.  Judgment should be entered for the plaintiffs with damages to be assessed; alternatively, there should be a re-trial on such issues as directed by the appeal court.

8.  We do not accept the judge had failed to consider the plaintiffs’ case of malice in that the defendants had issued the Letter to give vent to their personal spite and ill will towards the plaintiffs.  As stated in §78 of the Judgment, if there are mixed motives for publishing a defamatory statement, the plaintiffs must establish the improper motive as being the dominant motive.  These statements of Lord Diplock in Horrocks v Lowe at 150H to 151B are pertinent:

“Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. The motives with which human beings act are mixed. They find it difficult to hate the sin but love the sinner. Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person’s conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant party in his motives for publishing what he believes to be true that “express malice” can properly be found.”

9.  Here, the judge declined to draw the inference that the defendants had misused the occasion when they issued the Letter.  She found that the defendants “honestly believed” there was damage to their cars and that such damage was caused when the cars were parked in the Chalet[5].  She held on the evidence that the Letter was a response to the joint circulation letter, in which management issues were discussed.  She did not accept that the defendants “purposely sent the Letter to defame the plaintiffs”.  Further, the Subject Paragraph did not refer to the plaintiffs alone, but referred to the owners of Houses A, C and D.  For reasons discussed earlier in the Judgment[6], the defendants were entitled to raise a valid concern about the damage to their cars sustained whilst parked in the Chalet. She found that the dominant motive of the Letter was to respond to the request for information relating to the defendants’ construction works[7].

10.  The judge could not possibly have overlooked the history of the parties’ acrimonious relationship, which featured significantly in the three-day trial, and was mentioned at the outset of the Judgment at §§8 and 9.  See also §24 of the Leave Judgment.  She was clearly aware of that history.  She had considered the evidence given by the defendants in context.  It is entirely within the judge’s province not to attach weight to the emotionally charged speech which came at the end of the 2^nd defendant’s testimony.  It is quite clear from the judge’s comments at the time that she had allowed the 2^nd defendant to carry on without interruption as she understood the 2^nd defendant “just wanted some time in court to speak”[8].

11.  In accordance with well established principles, there is no room for the appeal court to interfere with these findings of fact where it has not been shown that the trial judge’s findings are plainly wrong.  The appeal court should defer to the trial judge’s conclusion even if in some doubt as to its correctness.

12.  As rightly submitted by Mr Chan, SC for the defendants, since the judge had made a positive finding of the defendants’ dominant motive in publishing the Letter, she could not possibly find they sent the Letter for yet another dominant motive, namely, to give vent to their personal spite or ill will towards the plaintiffs, not to mention that the contention of the plaintiffs are plainly inconsistent with the judge’s findings of fact.

13.  We do not find it necessary to deal with the intended respondent’s notice raised in Mr Chan’s submission.  We are satisfied that the intended appeal does not have any reasonable prospect of success.  We refuse leave to appeal with costs to the defendants, which we assess on a gross sum basis.  The defendants put forward a supplemental statement of costs with a total figure of $653,558.  We have regard to the nature of the application before us, and that the matter was set down for a half-hour hearing.  We tax down the costs allowed as reasonable to $350,000, of which $265,000 are the fees allowed for counsel.

14.  We draw the attention of practitioners to Practice Direction 14.3 §13, which provides that a broad-brush approach will be taken by the court in the summary assessment of costs and that costs for gathering information and drafting of a statement of costs will generally not be granted.