WONG CHING YEE v. WAI SHUK YIN

DCCJ 3187/2015

[2019] HKDC 1104

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3187 OF 2015

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J U D G M E N T

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1.  This is the trial of the Plaintiff’s claim against the Defendant for libel. There is no dispute the alleged defamatory statements were all published or caused to be published by the Defendant. Two of them were published on the internet and one in the form of a paper notice posted up outside a closed shop. The question is whether the statements are defamatory of the Plaintiff and, if so, whether the Defendant can establish a defence of justification and/or fair comment.

Brief Background

2.  At all the material times, the Plaintiff, also known as Ingrid Wong, was a tutorial teacher of a private tutorial school called Modern Education (HK) Limited (“Modern Education”). It is a company listed in the Stock Exchange. She is a Master degree holder. Though she did not hold a diploma/certificate in education, she was a licensed teacher and was then the only tutor in Modern Education teaching the subject of Information and Communication Technology (“ICT”) of the Hong Kong Diploma of Secondary Education (“DSE”). She considered herself well-known[1] and highly regarded by Modern Education which promoted her widely in the mass media in a manner as if in show business.

3.  It was her unchallenged evidence that Modern Education marketing team marketed the Plaintiff as “資訊科技天后 (Queen of ICT)”. Apparently she regarded herself as such[2]. Colourful A-4 size pamphlets with her portrait(s), name, description, etc were distributed. Stand-up banners (易拉架), wall posters with real-size or even bigger portraits of the Plaintiff and other tutors were displayed at teaching centres and promotion booths. Her advertisement portraits could be seen on body of buses running in the city occasionally. She could also be seen in magazines, books, either as writer or interviewees. She was promoted with an image of being young, attractive, lively and sporty totally different from traditional teachers, yet she was able to help students achieve excellent examination results. She was invited as consultant to Hong Kong Joint School Electronics and Computer Society (“HKJSECS”), a student organization. She attributed the invitation to the fact she being a well-known tutor. Other consultants of the Society were university lecturers and the LegCo member representing the IT trade. On the other hand, the label of “Tutorial Queen” was used by her to promote for others, e.g. boxing hall. Mutual benefits could be gained.

4.  At the material time, she was a director and a minority shareholder of a company called Pro Curve Limited (“the Company”) which operated a beauty parlour at its registered office at shop no.3, LG/F, Asia Standard Tower, 59-65 Queen’s Road Central (“Shop”). The Defendant was the other shareholder and director. She was introduced to the Defendant by the boxing hall owners who were the former shareholders of the Company.

5.  The Plaintiff started to be a part-time employee of the Company in or about September 2013 handling mainly online marketing, particularly organizing online group purchases, maintenance of the Company’s Facebook page, writing products reviews, inviting bloggers posting positive reviews and comments of Company’s products, etc. She was initially paid $20,000 a month. It was increased to $30,000. On or about 18 March 2014, she became a minority shareholder with 25% shareholding[3] and one of the two directors of the Company.

6.  The Defendant, also known as Shirley Wai, was the other director and majority shareholder of the Company with 75% shareholding.

7.  Soon after the Plaintiff had become shareholder of the Company, differences arose between the parties over their respective remuneration/sharing of profit as well as the mode of operation and management of the Company. Their relationship turned sour, culminating to a complete show down on 3 March 2015 after the Defendant had resumed work from a 4-week maternity leave. During the leave period, the Company’s administrative work was taken over by the Plaintiff[4]. On 3 March 2015, they had a heated argument which broke into a quarrel. At the end of that quarrel, the Defendant suspended the Plaintiff from the position as Company’s director. Her salary was also suspended immediately.

8.  The Defendant accused the Plaintiff of refusing to co-sign Company’s cheques which required directors’ joint signatures. The refusal resulted in, inter alia, her maternity leave pay remaining (31 January to 28 February 2015) unpaid.

9.  The Plaintiff petitioned for the winding up of the Company under HCCW 157 of 2015 on 12 May 2015[5] on ground there was a complete breakdown of mutual trust and confidence. Since the Company’s bank accounts were frozen pending winding up, the Company ceased business on 8 June 2015[6].

10.  Prior to cessation of Company’s business, the Defendant lodged a complaint with the Labour Department on or about 19 May 2015 against the Company for, inter alia, arrear of maternity leave pay[7]. The Plaintiff refused to attend the conciliation meeting. Later, the Defendant (together with other employees) lodged a claim with the Labour Tribunal against the Company for various payments including her maternity leave pay of HK$172,138.53[8]. Her claim with the Tribunal was eventually withdrawn, allegedly on advice from staffs of the Tribunal.

11.  The Company was eventually winded up, apparently uncontested, on 7 October 2015[9].

The Plaintiff’s Case

12.  It was the Plaintiff’s pleaded case that the Defendant published statements defamatory of her on 3 occasions after the Petition. She believed they were made out of the Defendant’s grudges against her for presenting a Petition to wind up the Company:

i)   Between 23 to at least 28 May 2015[10], the Defendant    published and/or caused to be published certain   messages (3 posts in total) which were defamatory on    the Defendant’s Facebook account, a social media in    the internet, with display status set to “public”[11]so that the messages can be read by internet users without    signing-up or logging-in of any kind (“Facebook    Messages”);

ii)   On or about 8 June 2015, the Defendant published and/or caused to be published a notice in Chinese    which was defamatory by affixing the same    prominently at the Shop’s entrance (“Shop Notice”)    together with the first page of petition showing the    case title. However, the name of the Defendant and    her description being the 2^nd respondent were redacted;    and

iii)   on or about 8 June 2015, the Defendant published and/or caused to be published an electronic version of    the same defamatory Shop Notice, at the    Company’s web-site (“e-Notice”). At the same time,    there was below the e-Notice a hyperlink[12] which, if    clicked on, would take the reader to a redacted version    of the Petition showing the name of the Plaintiff as    Petitioner[13].

13.  It is the Plaintiff’s case that alternatively, each of the above bore and was understood to bear defamatory meaning by way of innuendo.

   Facebook Messages

14.  The Plaintiff was first told of the Facebook Messages by one Miss YIU Ka Yi Venus (“Yiu”), a customer of the Company, on or about 23 May 2015. A screenshot of the Facebook Messages captured by Yiu 1 minute after it was posted was sent to her. It was the Plaintiff’s case that between 23 and 28 May 2015, she was contacted by various friends, including former shareholders of the Company, customers and employees of the Company enquiring what had happened.

15.  The Facebook Messages consisted of 3 posts. Post (A) (see below) appeared first on the Defendant’s Facebook on 23 May 2015 at 21:56. Post (B) appeared at 22:46 and (C) at 23:11 both on the same date. (B) and (C) were posted by the Defendant when she responded to other people’s comments to (A)[14].

(A) 23 May at 21:56

“真係十萬個嬲！！！

我公司個小股東係某大補習社名師，教學多年，佢一星期係我公司返唔夠兩日工，我上年都出左$800,000多些人工俾佢，佢嫌錢少，that’s fine！！最嬲係我生bb時佢不斷騷擾我，係咁要我處理公司事務，我只休息左28日就返工，身體差左都算，佢而家仲要唔贊成出產假俾我！”

(B) 23 May at 22:46

“重點係佢係我公司一年揾左咁多錢，佢都唔贊成出70日產假錢俾我”

(C) 23 May at 23:11

“我都係依家先知d補習miss係咁樣架，自已做埋犯法野當食生菜，都唔知點教育下代”

Agreed English translation[15]:

(A) 23 May at 21:56

“Really 100,000 times angry!!!

The minority shareholder of my company is a famous private tutor with a certain tutorial school, has been teaching for many years, [she] works in my company for less than two days per week, I gave more than $800,000 as salary to her last year, she considers it insufficient, that’s fine!! Most angry is that when I gave birth to my baby [she] continuously harassed[16] me, kept asking me to deal with matters of the company, I only rested for 28 days and then back to work, my health deteriorated but whatever, now [she] does not agree to give me maternity leave!”

(B) 23 May at 22:46

“The main point is that [she] earned so much from my company in a year, she did not agree to give 70 days’ maternity leave pay to me”

(C) 23 May at 23:11

“Only until now I know that miss private tutor can be like this, conducting illegal activities as readily as eating lettuce, no idea how to educate future generation”

16.  In the Statement of Claim, the Plaintiff contended in their natural and ordinary meaning, the Facebook Messages meant and were understood to mean that the Plaintiff:

i)   had continuously harassed the Defendant during her    pregnancy;

ii)   had wrongfully refused to give maternity leave to the    Defendant;

iii)   was an ungrateful and/or greedy person;

iv)   had conducted illegal activities; and

v)   was unworthy of being an educator.

17.  Further or alternatively, the Facebook Messages, as contended by the Plaintiff, bore and were understood to bear the aforesaid defamatory meaning by way of innuendo, because at the material times,

i)   the Plaintiff was the only minority shareholder and the    Defendant the only majority shareholder of the Company;

ii)   they had no other business venture or jointly owned    company other than the Company;

iii)   these facts are widely known among friends and    business/professional acquaintances of the Plaintiff,   including but not limited to (a) Company’s customers    and employees; (b) persons in the trade of beauty products/services; (c) management of Modern    Education; and (d) students of the Plaintiff.

18.  The Facebook Messages, the Plaintiff said, were published to vilify the Plaintiff personally, disparage her in the beauty products/services trade, and discredit her integrity and propriety as a private tutor.

   Shop Notice

19.  It was published on or about 8 June 2015 after the presentation of the Petition. It is the Plaintiff’s case the Shop Notice and the redacted 1^st page of the Petition was displayed prominently at the entrance of the Shop which was a busy location with frequent flow of office workers and/or shoppers. All persons going in and out of the building from the lift lobby would walk pass the entrance of the Shop and would be able to see and read the Notice and the 1^st page of the Petition. The Shop Notice contained the following words which, the Plaintiff contended, was defamatory of the Plaintiff:

“因本公司小股東黄小姐凍結公司銀行戶口，令公司無正常運作，亦無力支付員工薪金，於2015年6月8日起正式停止營運。對於小股東不顧客戶利益，強行令公司停止營運，本公司對此深表遺憾。”

Agreed English translation[17]

“As the minority shareholder of our company Miss Wong has frozen the company’s bank account, causing the company unable to operate properly, and unable to pay for employees’ salaries, from 8^th June 2015 the company has officially ceased to operate. In relation to the minority shareholder disregarding the interest of customers, forcing the company to cease operation, our company expresses deep regret.”

20.  The Plaintiff contended the Shop Notice was understood to mean the following which is defamatory of the Plaintiff:

i)   the Plaintiff had wrongfully forced the Company to    cease its business operation;

ii)   the Plaintiff had wrongfully caused the Company   unable to pay salaries to its employees; and

iii)   the Plaintiff had no respect for interest of Company’s    customers.

21.  By way of innuendo, the Plaintiff pleaded the Shop Notice bore and were understood to bear the meaning in the preceding paragraph identifiable to the Plaintiff,

i)   when read together with the redacted 1^st page of the    Petition displayed next to it showing the Plaintiff’s    full name;

ii)   the Plaintiff being its only minority shareholder of the    Company with surname Wong; and

iii)   such facts being well-known to the Company’s    customers and employees.

22.  The Shop Notice, the Plaintiff said, were published to disparage her in the beauty products/services trade and to portrait her as an unethical businesswoman.

   e-Notice

23.  The Plaintiff alleged that the e-Notice was published on the Company’s website on or about 8 June 2015. The e-Notice and the hyperlink under it were accessible to millions of internet users including but not limiting to those in Hong Kong. The contents of the e-Notice are the same as the Shop Notice and bear the same defamatory meanings. The Plaintiff contended, further or alternatively, the e-Notice and the redacted Petition bear the same defamatory meaning as the Shop Notice by reason of innuendo,

i)   the Plaintiff was the only minority shareholder and the    Defendant the only majority shareholder;

ii)   these facts were well-known to the Company’s    employees and customers;

iii)   the hyperlinked Petition was with the full name of the    Plaintiff surnamed Wong and any reader would    conclude the Plaintiff should be the “Miss Wong”    referred to in the e-Notice.

24.  The Plaintiff said the e-Notice was published to disparage the Plaintiff in the beauty products/services trade and to portrait her as an unethical businesswoman.

25.  It is the Plaintiff’s case that her personal, business (beauty products/services trade) and professional (as private tutor) reputations have been seriously damaged and she had suffered distress and embarrassment. She seeks aggravated damages against the Defendant on the following grounds:

i)   on or about 28 May 2015, she had through her    solicitors Rowdget W Young & Co (“RY”) issued a   letter to the Defendant demanding her to, inter alia,    cease publishing and apologise for the defamatory statements contained in the Facebook messages. The    Defendant did not apologise;

ii)   instead of an apology as demanded, the Defendant went on to publish the Shop Notice and e-Notice 10    days later, both defamatory of the Plaintiff further;

iii)   another letter of 16 June 2015 was issued by RY to the    Defendant demanding her to cease publishing the    defamatory statements of the Notice and e-Notice and   for an apology. The Defendant did not comply with    the demand; and

iv)   the Notice and the e-Notice were continued to be    published, contended by the Plaintiff, as at the date of    the statement of claim (dated 10 July 2015). At trial,   Mr Wong did not disagree with the Defendant’s    submission that the e-Notice had been removed when    the Company’s server service came to an end later that    year.

26.  Apart from aggravated damages for the libel, the Plaintiff sough injunctions to restrain the Defendant and her related parties from publishing the statements contained in the Facebook messages and Shop Notice/e-Notice.

27.  The Shop Notice and the e-Notice were collectively referred to as “Notice” in the following paragraph unless otherwise stated.

The Defendant’s Case

28.  The Defendant’s primary position, so far as can be discerned from the Defence, is that neither the natural and ordinary meaning nor the innuendo meaning of the Facebook messages and Notice bears the defamatory meaning contended by the Plaintiff. Their natural and ordinary meaning are not defamatory at all. If they are defamatory, she relied on the alternative defence of justification and fair comment.

   Facebook Messages

29.  The Defendant pleaded that their meanings in true and substance are as follows which are not defamatory of the Plaintiff[18]:

“i) the Defendant was really angry. The minority shareholder of the Company was remunerated richly for working less than 2 days per week. It is fine that the minority shareholder was not satisfied with the adequacy of the remuneration.

ii) what made the Defendant angrier was the fact that while the Defendant was about to give birth and even after giving birth on 31 January 2015, the minority shareholder of the Company continuously disturbed her by requesting her to handle company affairs;

iii) the Defendant has only taken 28 days leave of absence. Besides her health condition deteriorated, the minority shareholder does not agree to pay her the maternity leave;

iv) the important point is despite her being (sic the minority shareholder) richly remunerated by the Company, she did not agree to pay the Defendant a 70-day maternity leave.

v) the Defendant thinks that the minority shareholder had    conducted activities prohibited by law. The Defendant wonders   how the minority shareholder teaches the next generation.”

30.  Alternatively, the Defendant relied on the defence of justification on the ground what she had set out in the Facebook Messages are true in fact and substance. These included (i) the refusal of the Plaintiff to unfreeze the bank account by consent so as to withdraw money for his maternity pay; (ii) infringing the intellectual property rights of the 5 products, namely, “Phyto Laboratory Copper Peptide Essence”, “Copper Peptide Aqua Cream”, “Copper Peptide Aqua Gel”, “Vitamin B3 Essence” and “Vitamin B3 Mist” (“5 Products”) which belonged to the Company by forming her own company to sell them; and (iii) breaching her fiduciary duties as a director of the Company[19].

31.  According to the Further and Better Particulars of the Defendant, these 5 Products were developed by the Company between December 2013 to the 3^rd quarter of 2014[20].

32.  The Defendant also relied on the defence of fair comment upon a matter of public interest, namely, a tutor who conducted activities prohibited by law to educate the next generation: see [10] and [11] of the Defence.

33.  It is not in dispute that the Plaintiff incorporated her owned company called Phyto Laboratory HK Limited (“Phyto Lab”) on 6 February 2015 conducting business of her beauty/skin care products including the 5 Products. The Plaintiff was thus, said the Defendant, in breach of her fiduciary duties to the Company.

   Shop Notice & e-Notice

34.  It is not denied that the Shop Notice was displayed as contended but it was denied at a prominent place of the entrance to the Shop and could draw attention of passers-by.

35.  As for the meaning of the Shop Notice and e-Notice, the Defendant said they had the following meaning in substance and fact[21]:

“(a) Since the Company’s minority shareholder Ms Wong caused the Company’s bank account to be frozen, the Company cannot operate and is unable to pay salary to its employee and as such suspended operation since 8^th June 2015.

(b) The Company is sorry for its minority shareholder causing the Company to suspend its operation.”

36.  The Defendant also relies on the defence of justification[22], fair comment upon a matter of public interest because the customers should be made known why the Company suspended its operation so suddenly[23]. Further, except employees and some of the customers, those who care to read the Shop Notice and e-Notice do not even know who the Plaintiff was since the Plaintiff was not known to all customers[24].

37.  As regards the e-Notice, the Defendant said that the hyperlink was no longer accessible since 23 September 2015 because the Company did not pay the website maintenance fee. The Defendant also did not admit whether the said hyperlink could, at all material times, be accessible to any users of the internet and whether accordingly it could be inferred that a substantial number of users had, as a matter of fact, access to it[25]. The Shop Notice was removed when possession of the Shop was handed back to the landlord.

   Generally

38.  The Defendant relies on sections 26 (justification) and 27 (fair comment) of the Defamation Ordinance, Cap 21[26].

The Plaintiff’s Reply

39.  Basically the Plaintiff disagreed with what the Defendant had said. Further, it was contended the Defendant published the Facebook Messages maliciously, knowing they were false or recklessly not caring they were true or false out of spite or ill-will towards the Plaintiff.

40.  As regards Phyto Lab, it is the Plaintiff said that the parties had agreed she was free to develop the beauty products as her side business notwithstanding she was a director of the Company. There is therefore no breach of duty as alleged. Any interest arising from those products belongs to her absolutely.

The Issues

41.  Counsel of the parties have helpfully referred this Court to the relevant parts of the authoritative text of Gatley on Libel and Slander, 12^th Ed, 2013 (“Gatley”) and quite a number of local and overseas authorities. From the above, it is apparent that the issues between the parties are:

i)   what are the respective meanings of the 2 sets of    offending words in the Facebook Messages and Notice;

ii)   whether the single meaning found by the Court is   defamatory of the Plaintiff and/or understood to be    defamatory by way of innuendo in their natural and ordinary meaning;

iii)   if the meaning of any set of the offending words is defamatory of the Plaintiff, whether the defence of    justification and/or fair comments is/are available, in part or in full;

iv)   in so far as the defence of justification is concerned,    whether the offending words as construed by this Court were true in fact and substance. Depending on    the single meaning of the alleged offending words found by the Court, this may involve finding of facts   on whether the Plaintiff:

(a)   had continuously harassed or disturbed the   Defendant after the latter had given birth to her    baby;

(b)   had disagreed to pay maternity leave pay to the    Defendant;

(c)   had been paid not less than HK$800,000;

(d)   had breached her director’s duties in direct   competition with the Company; and

(e)   possessed the intellectual properties of the 5 Products or that they belonged to the Company;

v)   in so far as the defence of fair comments were    concerned, whether the usual 5 ingredients are    satisfied, namely, 

(a)    the comment is a matter of public interest;

(b)   it is comment, and not imputation of facts;

(c)   the comment is based on facts which are    true or protected by privilege;

(d)   the comment explicitly or implicitly indicate,    at least in general terms, the facts on which it is    based;

(e)   the comment is fair, and honestly held by the    Defendant, see [12.2] of Gatley and Albert Cheng & Another v Tse Wai Chun Paul[27]; and

vi)   whether the comment was “actuated by malice” which    defeats the defence of honest comments because it    means the opinion is not genuinely held. The burden is    on the Plaintiff; and

vii)   if the Defendant fails in her defence, the amount of    damages to be awarded, and in particular, whether aggravated damages should be awarded.

42.  In fact, counsel of parties had, prior to trial, signed an agreed list of issues which comprised, basically, similar issues set out in the preceding paragraph. The agreed list of issues in dispute are set out in the opening submission of Mr Wong[28]. The list was duly signed by the parties’ trial counsel and filed with Court on 3 March 2017.

Pleading Point

43.  At the closing submission, Mr Wong of counsel for the Plaintiff, relying on a line of authorities including the Court of Final (“CFA”) decision of Mak Shiu Tong v Yue Kwok Ying & Anor[29], took a pleading point that the Defendant is not entitled to rely on the plea of justification and fair comment. What Mr Wong would like to contend is, in a nutshell, this[30]: since the Defendant was asserting the words complained of not defamatory of the Plaintiff, there was simply no need to justify non-defamatory meaning. No issue of fair comment would arise as this was irrelevant when the words were, as the Defendant asserted, not defamatory.

44.  The purpose of pleadings is to ensure that issues between the parties are defined sufficiently ahead of trial. Although there are rooms for improvement on drafting of the Defence, in the Court’s judgment, it is sufficiently clear, at least to the parties. The Defendant is running the defence of justification and fair comment as alternatives: see [9], [10], [11], [19], [20] of the Defence. It was stated[31] as part of the agreed issues that if the words are found to be defamatory, the next issue is whether the Defendant has any defence of justification and/or fair comment in full or in part. It shows that the Plaintiff was prepared to deal with them as alternatives. Further, in the Reply filed by the Plaintiff, the Plaintiff took no issue on this pleading issue. Neither is there expressed pleadings to the effect that the alternative defences are inconsistent or incompatible with the Defendant’s primary position of the relevant words non-defamatory.

45.  This Court does not accept Mr Wong’s submission on this.

The Witnesses and Evidence

46.  Three witnesses, namely, the Plaintiff, the Defendant and Yiu[32] attended Court to give evidence. They all adopted their respective witness statements provided prior to trial:

The Plaintiff:

i)   witness statement dated 10 August 2016;

ii)   supplemental statement dated 12 January 2017;

Yiu:

iii)   witness statement dated 26 September 2016;

The Defendant:

iv)   witness statement dated 26 September 2016; and

v)   supplemental statement dated 22 December 2016.

47.  Documents such as hard copy of the Facebook Messages, Shop Notice and e-Notice were exhibited. In particular, the WhatsApp messages exchanged between the parties as well and the recording of the heated quarrel on 3 March 2015 were put in as evidence. Both were in the form of transcripts and CD. They are contemporaneous evidence of what had actually happened at the material times. They are useful in testing whether a witness was telling the truth, and in assessing the intention behind a certain move.

The Meanings of the Alleged Offending Words

48.  Mr Wong has helpfully referred this Court to the CFA decision of Next Magazine Publishing Ltd & Others v Oriental Daily Publisher Ltd[33] on how the defamatory meaning is to be ascertained, namely, the Court is to arrive at a “single” “right” meaning as “the natural and ordinary meaning” of the words complained of as understood by reasonable men.

49.  The following principles are applicable in looking for the “right”, “single” and “natural and ordinary meaning” of any words complained of:

i)   the “natural and ordinary meaning” to be ascribed to    the words of an allegedly defamatory publication

(a)   is the meaning which the words would convey    to the mind of the ordinary, reasonable, fair-   minded reader;

(b)   means ones in which reasonable people of    ordinary intelligence, with ordinary person’s    general knowledge and experience of worldly    affairs, would likely understand them;

(c)   may be either the literal meaning or the implied,    inferred, or indirect meaning; or any meaning    that do not require the support of extrinsic facts    passing beyond the general knowledge; and

(d)   includes meanings capable of being detected in    the language used. They therefore include    any implication or inference which a reasonable    reader, guided not by any special but only    general knowledge and unfettered by any strict    legal rules of construction, would draw from    words;

iii)   it is necessary to take into consideration, not only the    actual words used, but also the context in which the    words were used and the persons to whom the    communications were made;

iv)   although a combination of words may in fact convey    different meanings to minds of different readers, the   Court is required to determine the single meaning    which the publication conveyed to the notional    reasonable reader; and to base any award of damages    on the assumption that this was the one sense in which    all readers would have understood it.

   (See: Next Magazine (supra) and Lo Sam Shing v Li    Fong[34])

50.  This Court also considers the following often-cited paragraphs in Gatley correctly set out the test to assess whether or not the “natural and ordinary meaning” is defamatory:

i)   “… An imputation may be defamatory if it would    tend to lower the claimant in the estimation of right-   thinking members of society generally or would be    likely to affect a person adversely in the estimation of reasonable people generally provided that it    meets the necessary ‘threshold of seriousness’”:    [2.16] of Gatley; and

ii) “It is defamatory to impute that a person is unfit for    his profession or calling owing to want of ability …    or that he has been guilty of any dishonest or    disreputable conduct or any other misconduct….    This applies to any profession or calling, however    humble, so long as it is not illegal”: [2.38] of Gatley

51.  With the above principles in mind, this Court will proceed to ascertain the natural and ordinary meaning of the Facebook Messages and Notice in the following paragraphs.

The Facebook Messages

52.  Mr Wong has in his opening identified 5 parts of the Facebook Messages which carry defamatory imputations. They are set out below. For ease of discussion, the meaning asserted by the Defendant are also set out in the last column:

	Words allegedly containing defamatory imputations	Plaintiff’s asserted defamatory imputation	Defendant’s asserted meaning
i)	[Plaintiff] works in my company for less than two days per week, I gave more than $800,000 as salary to her last year, she considers it insufficient, that’s fine!! (“1st Part”)	Plaintiff was an ungrateful and/or greedy person	What is meant is that it is fine for the minority shareholder not satisfied with the adequacy of the remuneration[35].
ii)	Most angry is that when I gave birth to my baby [she] continuously harassed me (“2nd Part”)	Plaintiff had continuously harassed the Defendant during her pregnancy	What made the Defendant angrier was the fact that while the Defendant was about to give birth and even after giving birth of the baby, the minority shareholder continuously disturbed her by requesting her to handle company affair[36]
iii)	Now [she] does not agree to give me maternity leave (“3rd Part”)	Plaintiff wrongfully refused to give maternity leave to the Defendant and the Plaintiff had conducted illegal activities	The Plaintiff does not agree to pay her for the maternity leave[37]
iv)	The main point is that [she] earned so much from my company in a year, she did not agree to give 70 days’ pregnancy leave pay to me (“4th Part”)	Plaintiff was an ungrateful and/or greedy person	The important point is despite the minority shareholder be richly remunerated by the company, she did not agree to pay the Defendant a 70-day maternity leave[38]
v)	Only until now I know that miss private tutor can be like this, conducting illegal activities as readily as eating lettuce, no idea how to educate the future generation (“5th Part”)	Plaintiff had conducted illegal activities Plaintiff was unworthy of being an educator	The Defendant thinks that the minority had conducted activities prohibited by law. The Defendant wonders how the minority shareholder teaches the next generation[39]

(i)   Pay or Leave (3^rd Part of Post (A) of the Facebook Messages)

53.  There is dispute as to the nature of the Plaintiff’s refusal the Defendant was referring to in the 3^rd Part of the Facebook Messages. The Plaintiff alleged the Defendant was then referring to maternity leave but the Defendant said she was referring to maternity leave pay. It boils down to the construction of the natural and ordinary meaning of the Chinese words “唔贊成出產假俾我 (agreed English translation: does not agree to give me maternity leave)” in the context. This Court considers it is only a translation of the face meaning of these Chinese words. It may not necessarily be their natural and ordinary meaning in the context.

54.  During cross-examination, the Defendant explained what she actually meant by these words was that the Plaintiff was not agreeable to give her maternity leave pay instead of leave. After hearing her evidence, I accept her explanation. I also find that it is also the contextual natural and ordinary meaning of this part.

55.  Firstly, as a matter of ordinary daily use of the Punti language, in the context of granting or refusing to grant leave or holiday, the verb “放” (pronounced in Punti as: fong³, meaning “to grant” or “to give”) will normally be used. It is used commonly used in the form of, say, “放假” (meaning: taking holiday); “放病假” (meaning: taking sick leave) or “放產假” (meaning: taking maternity leave).

56.  If one would like to express paying or giving out money, the Chinese verb “出” (pronounced in Punti as: “chut¹”, meaning “to pay” or “to give out”) would normally be used, for example, “出糧” (meaning: to pay wages) or “出錢” (meaning: to contribute or give out money). Now the word “chut¹” instead of “fong³” was used. This Court considers the readers would be able to associate the statement to mean refusal to grant pay, rather than leave, despite the word “錢” (meaning money or pay) was not there.

57.  Secondly, the early part of the Facebook Messages referred to payment of wages of $800,000 to the Plaintiff. The context for the readers, even without the 4^th part, is money, not leave.

58.  Thirdly, during cross-examination the Defendant explained she had left out the word “錢” (meaning money or pay), and that was why she re-inserted the said Chinese word in the 4^th part (or post (B) of the Facebook Messages). The phrase “出產假俾我” appears an odd usage in Punti.

59.  Reading the message in the context, I consider the natural and ordinary meaning of “唔贊成出產假俾我” means “does not agree to give me maternity leave pay” instead of the face meaning of the agreed translation.

60.  It is noted that one Elim Wong by his post at 22:23 the same date did say “maternity leave is your special rights, [and] you have to continue fighting for it[40]” suggesting the meaning of failure to grant leave instead of pay was conveyed and picked up.

61.  In the Court’s view, it is unclear what Elim Wong was exactly intending to mean – whether he was talking generally about maternity benefits to which a female employee was entitled or specifically about failure to grant maternity leave. In the Court’s judgment, he was probably referring to the former because the latter did not sit well with the Defendant’s post in which she said she had already taken 28-day leave.

62.  The Defendant’s another post at 22:46 (i.e. 23 minutes later) made it clear she was talking about the 70-day maternity leave pay. There is no doubt that in the subsequent exchanges, e.g. Eppie Yuen at 23:03, Alice Chu at 23:05, pay instead of leave was discussed. Accordingly, in the context of the Facebook Messages as a whole, its natural and ordinary meaning refers to maternity leave pay rather thanleave.

   (ii)   1^st Part (Post (A) of the Facebook Messages)

63.  This Court considers this part was written apparently to contrast the latter part of the post concerning disagreement to pay. The Plaintiff contended it imputed the Plaintiff being a greedy and ungrateful person. In my view, after claiming the Plaintiff being a minority shareholder having been paid more than $800,000, the Defendant added the English phrase of “that’s fine!!”. It appears to this Court that the Defendant appeared to have expressly, though reluctantly (judging from the use of two “!!”), accepted the Plaintiff was entitled to be dissatisfied with her remuneration being on the low side despite it being regarded as already on the very high side. The phrase “That’s fine!!” gives the readers a sense that the person the writer was writing (i.e. the Plaintiff) may not be totally groundless, or that the writer is prepared to accept that person’s stance, otherwise the writer would not have said it was fine. I do not think an ordinary, reasonable and fair-minded reader would form the view that the Plaintiff was greedy. I also do not consider it carries any meaning the Plaintiff an ungrateful person, i.e. not a person showing gratitude. The 1^st Part has the following meaning:

“the Plaintiff has been paid more than $800,000 as salary last year yet [she] was still dissatisfied. It is alright and acceptable to the Defendant (though reluctantly and unhappily by use of “100,000 times angry !!”) as the Plaintiff was perfectly entitled to be dissatisfied with her amount of remuneration.”

64.  I do not consider this part carries any defamatory imputation. There is also no mis-statement of facts (see [120] – [121] below).

(iii)   2^nd Part (Post (A) of the Facebook Messages)

65.  The agreed translation for the word “騷擾” (pronounced in Punti as “so¹ yiu²”) is “harassed”. Despite that being the agreed translation, the Defendant in her pleadings and submission, adopted the meaning of “disturbed”[41]. Again, this Court does not consider it bound by the face meaning of the agreed translation because one of the issues this Court needs to resolve is the ordinary and natural meaning of the statement which was originally written in Chinese.

66.  “Harass” and “disturb” bear the following meanings according to theShorter Oxford English Dictionary, 6^th Edition, OUP:

i)   harass:

“trouble by repeated attacks” or “subject to constant molesting or persecution”

ii)   disturb:

“agitate and destroy (quiet, peace, etc); break up the tranquillity or calmness of; distract the attention of, intrude upon”; or “worry, cause anxiety to”

67.  The text was written in Chinese. Their Chinese meaning should first be ascertained. The dictionary meaning of “騷擾” (“so¹ yiu²”) is “使不安寧 (meaning: made to feel unsettled, annoyed or without peace)”, see: p.991 現代漢語詞典,商務印書館(P.991Xiandai Hanyu Cidian, Commercial Press). This accords with the daily ordinary meaning of these Chinese words. This meaning sits well more with that of “disturb” than “harass”. This Court considers the proper translation for “騷擾” should be “disturb” instead of “harass” which apparently is a more serious form of disturbance.

68.  The Defendant said in this part that the Plaintiff had continuously disturbed her. The period when the disturbance took place was said to be “係我生bb時” which according to the agreed English translation is “when I gave birth to my baby”.

69.  In my view, “when I gave birth to my baby” is only a word by word translation. When the disturbance is said to be “continuously” but at the same time when one “gave birth to one’s baby”, it apparently means the disturbance is not confined to the date of confinement only. In the context, it means the disturbance occurred around the time when she gave birth her baby, and thereafter.

70.  Further, the way in which the Defendant was disturbed and/or harassed was “kept asking me to deal with affairs of the company”, not any other form.

71.  In my judgment, to the fair-minded reasonable readers, this part has the meaning that the Defendant had been repeatedly asked to handle company’s matters which was not that urgent and could be deferred until after her maternity leave. The part also carries the connotation to readers that even if “handling of Company’s affairs” was a necessity, the manner in which the Plaintiff asked was over and above what is reasonable in the circumstance and amounts to disturbance or even harassment.

72.  In the Court’s judgment, this 2^nd Part is defamatory because it leads people to think the Plaintiff an unreasonable person who acted so badly as to disturb the Defendant even after she had given birth to her baby. Right-thinking member of our society would consider post-natal, a mother is weak, fragile both physically and emotionally, and was vulnerable. The mother deserves a good and complete rest and should not be disturbed. The Defendant has a good defence if evidence shows what she said is substantially true.

   (iv)   3^rd Part (Post (A) of the Facebook Messages)

73.  As said above, this part means the Plaintiff was not agreeable to give maternity leave pay to the Defendant. It has the imputation that the Plaintiff might not have acted properly, and was against the law. From what has appeared after post (A), the Defendant’s Facebook friends obviously knew that failure to pay maternity leave pay something against the law. Implicating someone has breached the law is obviously defamatory unless the Defendant can prove the statement true as a matter of fact. The 3^rd Part is defamatory.

   (v)   4^th Part (Post (B) of the Facebook Messages)

74.  This Court does not consider an ordinary, reasonable, fair-minded reader will gather the Plaintiff greedy or ungrateful as contended. As discussed above, what the Defendant would like to highlight was, despite the richly remuneration received by the Plaintiff, the Plaintiff did not agree to reciprocate by paying her 70-day maternity leave pay. Greed and/or ungratefulness are the only defamatory imputations asserted by the Plaintiff. That being the views of the Court, it will be unnecessary for this Court to consider whether other possible imputation(s) not asserted by the Plaintiff’s defamatory.

   (vi)   5^th Part (Post (C) of the Facebook Messages)

75.  The agreed translation of “做埋d犯法野” is “conducting illegal activities”. In the Court’s judgment, “做埋d犯法野” means doing something against the law, and in the local context, something which is serious or even breaching the criminal law. In any event when the phrase is used, it covers serious breaches, though not necessarily to the extent of breach of the criminal law. The discussion appeared immediately above this post on the Facebook centred on disagreement on the part of the Plaintiff not to pay 70-day maternity leave pay, which was a labour law requirement. As can be seen in [118] below, failure to pay maternity leave pay may be a criminal offence under the Employment Ordinance, Cap 57.  

76.  “Eating lettuce” is a local slang referring to someone doing something in the most readily and as-he-wish manner without paying any heed to what he/she has done, just like eating of lettuce which is a simple and an easy job. Saying a person guilty of breaching the law readily is obviously defamatory. It is also defamatory to impute a person to be unfit for his profession, see: [50] above.

77.  This Court considers the ordinary and natural meaning of this 5^th Part, in the context of the Facebook Messages, is this: “Only until now I know that Miss tutor can be like this, doing thing(s) against the law readily and in an as-she-wish manner, and [I] have no idea how [she] could educate [our] future generation”.

78.  This part implicates directly the Plaintiff professionally as a tutorial teacher having done something against the law. What the Plaintiff had done which was said to be against the law was stated in the earlier part of the Facebook Messages, namely, her disagreement to pay her maternity leave payof 70 days. This part also directly suggested the Plaintiff to be unfit to be a teacher as she had broken the laws “like eating lettuce”.

79.  There are 2 defamatory stings here. The first one is that the Plaintiff has breached the law; and the second one being she as a tutorial teacher was unfit or unworthy to be an educator to educate the next generation because she would breach the law readily and easily in an as-she-wish manner.

80.  The Defendant said when she referred to “illegal activities” she was also referring to infringement of Company’s intellectual right regarding the beauty products and breach of director’s fiduciary duties to the Company. This Court will come to it when the defence of justification/fair comment is discussed. The short answer to this submission is that she cannot rely on them when raising these defences.

The Shop Notice and e-Notice

81.  The same exercise is repeated here for the 2 Notices which are identical:

	Words complained of	Plaintiff’s asserted defamatory imputation[42]	Defendant’s asserted meaning
	As the minority shareholder of our company Miss Wong has frozen the company’s bank account, causing the company unable to pay for employees’ salaries, from 8th June 2015 the company has officially ceased to operate. In relation to the minority shareholder disregarding the interest of customers, forcing the company to cease operation, our company expresses deep regret.	Plaintiff has wrongfully forced the Company to cease its business (“meaning A”) Plaintiff had wrongfully caused the Company unable to pay salaries to its employees (“meaning B”) Plaintiff had no respect for the interest of the Company’s customers (“meaning C”)	Company’s minority shareholder Ms Wong caused the Company’s bank account to be frozen, the Company cannot operate and is unable to pay salary to its employees and as such suspended operation since 8 June 2015. The Company is sorry for its minority shareholder causing the suspension[43] Defendant merely stating the fact, nothing in those words could have imputed whether the Plaintiff was wrongful or not in arriving at such a result[44]

82.  It is not in dispute the Plaintiff did not directly ask the bank to stop the account. It is only a consequence brought about by the petition. It is also not in dispute it was the Defendant who decided, in the particular circumstances, the Company should cease business after considering the pros and cons of contesting the petition. The parties were then engaged in a serious fight. It was noted the Plaintiff did not accept the Defendant’s offer to sell her shareholding in the Company. She also did not respond to the Defendant’s appeal to unfreeze the account. On the other hand, the Plaintiff intimidated that the Defendant should continue operating the Company as closing its down did not serve the best interest of the Company. The Plaintiff even reserved all rights to sue the Defendant for breach of director’s duties[45]. The Defendant was hard pressed. That was the backdrop against which the Notice was issued.

83.  A bank would stop payment of money out of a company’s account immediately after a winding up petition was presented against that company, probably because of the relation back provisions of the current insolvency law[46]. This normally has a devastating impact on a company’s operation. From the Defendant’s evidence (which this Court accepts), the Company was adversely affected. Since the Defendant was a layman, her understanding was that it was the Plaintiff who had frozen the Company’s account. As a result, the Company could not continue to pay wages and operate normally. This 1^st part of the Notice ends before the Chinese full stop “。”. The fact that the 1^st part not being 100% true cannot of itself make that statement defamatory, though this Court considers it is still correct to say the Plaintiff had frozen the bank account, albeit indirectly.

84.  Meanings A and B (see [81] above) stress the “wrongful” imputation being defamatory of the Plaintiff. My view is that this first part of the Notice does not have the connotation of what the Plaintiff has done being wrongful. The Chinese word “令” (pronounced in Punti as “ling⁶”) is used. It has a meaning of “使” (meaning: to cause or to bring about)”, see: p.735 現代漢語詞典,商務印書館(P.991Xiandai Hanyu Cidian, Commercial Press). It means an effect is caused or brought about by an act, directly or indirectly (my emphasis). Further, the word itself does not carry any connotation or good or bad. In the context it simply states the cause as perceived by the Defendant, namely, the freezing of account by the Plaintiff (again, can be directly or indirectly), and the effects it had brought about, namely, the failure of the Company to operate normally and pay employees’ wages leading to its eventual cessation of business. Reading the Notice as a whole, an ordinary, reasonable and fair-minded reader would only think that it was the Plaintiff who had caused the cessation of business and failure to pay wages. As said above, she did indirectly cause the freezing of the bank account. Such freezing of account brought about an effect, i.e. cessation of business. There is no connotation that the Plaintiff was wrongful in so doing, for “wrongful” normally means, according to theShorter Oxford English Dictionary, 6^th Edition, OUP,

“full of wrong … characterized by wrong, unfairness or injustice.

“of a person: behaving evilly or immorally, doing or disposing to do wrong”

“contrary to law; unlawful, illegal…”

“mistaken, erroneous…”

85.  Fair-minded readers will consider that a minority shareholder is entitled to wind up a company as he/she is also boss, albeit a minor one, of the company.

86.  As regards the remaining part of the Notice which concerns customers, my view is that meaning C (see [81] above) asserted by the Plaintiff is rather obvious. An ordinary, reasonable and fair-minded reader may consider fights between shareholders alright as it was their own internal matters so far as they could contain it between themselves. However, if a party allow their personal conflicts to spill over to third parties (in the present case, customers) so that they are affected, a fair-minded reader would have a different perception. The meaning of “… minority shareholder disregarding the interest of customers” in the context of the Notice, will lead such reader to come to a view that it was the Plaintiff (since only her name was shown on the redacted first page of the petition) who allowed their shareholders’ conflict to affect customers’ interest. She being the minority shareholder does not care about customers’ interest. Although this Court does not think a reader would consider the Plaintiff unethical as contended on the Plaintiff’s behalf[47], which I think an exaggeration of its effect, customers obviously would not want to deal the such kind of businessman as their interest would be disregarded in situation of internal conflicts. It would lower the Plaintiff generally in the estimation of the right-thinking members of our society.  

87.  Accordingly, this Court is of the view that the Notice bears the defamatory imputation of meaning C. The next question is whether the Defendant can set up a valid defence.  

Some Finding of Facts

(i) Whether the Defendant was Continuously    Disturbed/Harassed

88.  It is basically a question of fact and degree.

89.  It is not in dispute the parties had a prior agreement for the Plaintiff to take over the management of the Company while the Defendant took her maternity leave[48]. This Court accepts the Plaintiff’s evidence that for this purpose, she moved from Taipo to a rented premises in Causeway Bay. I have gone through the WhatsApp messages. They talked on matters such as staffs’ salaries, why the Defendant had taken away all Company’s cheques books, Company set-up kit (including the Company’s seal), token for internet banking, some Company’s documents/records (collectively “essential Company’s stuffs”) and on outstanding rents, etc. There is virtually no personal chats between them even though after the Defendant had given birth to her first baby[49]. Not even a single word of greeting or congratulation passed from the Plaintiff to the Defendant at the start of the Defendant’s maternity leave. That reflects how bad their relationship was at that time. It could be inferred the Plaintiff, who customarily was expected to greed, did not really care being rude or impolite to the Defendant.

90.  The Defendant’s complaint was that the Plaintiff kept asking her to handle Company’s affairs. The particulars of justification pleaded in the Defence relevant to disturbance are[50]:

(i)    about 2 weeks prior to her date of confinement on 31    January 2015 the Plaintiff asked for a transfer of 9%    shareholding of the Company and a salary raise;

(ii)    she was approached personally on 25 January 2015 for    discussion on the above;

(iii)    raising various matters on Company by WhatsApp after 31 January 2015; and

(iv)    raising derogatory comments about the Defendant’s    character and raising untrue statement her in the    WhatsApp exchanges.

91.  In order to assess whether there was any disturbance or even harassment as alleged, this Court has the following considerations:

i)   First, it has to be borne in mind it was the Defendant    who had the day to day control and management of    the Company. The Plaintiff was not hands-on with the Company’s affairs. Inevitably she required to consult    the Defendant during the latter’s maternity leave on    matters she did not know and when there was really a   need to do so. They are not disturbance (騷擾) per se    unless these matters were raised or pursued in a    manner over and above what was reasonably    necessary in the circumstances, or in an unreasonable    manner which destroyed the quiet and peace of the Defendant or had caused anxiety on the part of the    Defendant. It follows that discussion on staff’s salary,    such as Fiona’s replacement cheque after she had lost    the first pay cheque[51]; whether a supplier has been    paid[52], etc, without more, cannot be said as   disturbance;

ii)   Second, the Defendant remained quite involved    despite the fact she was on leave. Very often she took    the initiative to ask the Plaintiff about the Company.    Again, if the Defendant initiated a discussion it cannot    be said a disturbance. Accordingly, it is not    disturbance when the Defendant asked the Plaintiff to   look for quotations of auditors[53];

iii)   Third, discussion concerned personal matters, e.g. increase of salary or shareholding, even if it was    raised in such a manner as to cause disturbance, will    not be considered because what the Defendant said    about disturbance related to Company’s affairs, not    personal affairs;

iv)   Fourth, when there was a need to raise a matter    concerning the Company, it is crucial to examine    whether it was raised in a manner over and above    what a reasonable person in the circumstances would    do, or it was raised with a view to disturb or even    harass. If it is raised or pursued in an unreasonable    manner which destroyed the quiet and peace of the Defendant or had caused anxiety on the part of the    Defendant, the Defendant could justify her statement    because it was simply true.

92.  It is not disputed in the past, the Defendant was willing to, and did sign some blank cheques for the Plaintiff to fill up the rest when she was on leave. However, the Defendant did not do the same this time even she was absent for a long time. Coupled with the fact that essential Company’s stuffs had been removed, the Plaintiff formed a firm view the Defendant mistrusted her. This made her frustrated and angry. From the WhatsApp exchanges and the argument leading eventually to a quarrel and breakup on 3 March 2015, it is evidently clear the Plaintiff expressed herself bluntly, very often in very sharp languages and had even scolded the Defendant and her husband. The Plaintiff did not seek to deny that[54].

93.  It is noted by this Court the following:

i)   6 February 2015: when the question of their employee    Suzanne was discussed, the Plaintiff expressed    dissatisfaction on the way the Defendant’s husband    responded to her queries. The Plaintiff complained he    took an indifferent attitude, and did not make it clear    when he would be taking the cheques to her,    causing her a lot of troubles. The Plaintiff’s tone    was unpleasant, see: exchanges between 13:13 to    13:15,[55], 13:40 to 14:12[56]. It is noted the Plaintiff went   so far as to say in the heat of the conversation to the    effect that it was the Defendant who chose to have a    baby. No one but she asked for it. Since it was her    choice, it would not be right for the Plaintiff to bear    the unpleasant consequences flowing from the messy    arrangement of the Defendant and/or her husband[57]. Further the Plaintiff’s stressed that she could be    tougher than the Defendant if the latter chose to be tough on her[58]. After some exchange, the Defendant    expressed sorry for what had happened[59]. Suzanne’s salary seemed unresolved even as at 18    February 2015. They eventually agreed to deal with it    after the Defendant had resumed work. The Defendant

   said she had already talked to Suzanne[60].

ii)   10 February 2015: After the Plaintiff had raised    questions about the under-contribution towards    Elaine’s of MPF (which this Court considered a    necessity), the Plaintiff expressed she wanted to study    operation of a beauty machine and provided training to staffs the next day. She asked the Defendant the    whereabouts of a bottle of spray as only the gel that    came together was there[61] (this Court considers this    was totally unnecessary). The Defendant said she had    not seen it before. About 30 minutes later the Plaintiff    indicated she had found the bottle of spray.

iii)   18 February 2015: The Defendant had requested the    Plaintiff to send files for audit quotations. It generated a series of WhatsApp messages from the Plaintiff in   sharp languages to the effect that the matter of    quotation was totally not urgent, and it would be most    inappropriate of the Defendant to raise up this matter    when she was then hectic with the Company’s affairs    with which she was not familiarized[62]. Any unhappy    feeling or loss of peace on the part of the Defendant    arising from discussion of this issue cannot be said to    be disturbance or harassment. The Defendant asked    for it.

iv)   27 February 2015: Apparently the Plaintiff received a    letter from the landlord’s solicitors demanding for    unpaid rent for 2 months. She sent over the same to    the Defendant who replied it was the Company’s    usual practice to have rent in arrears for 2 months. She said December’s rent had been settled in early February 2015. She would cause January’s rent be settled on 2 March 2015 when she resumed work. This   generated a series of heated exchanges. The Plaintiff    was dissatisfied with the way the Defendant handled    Company’s matters as it might attract serious legal consequence. Despite the Defendant’s express indication that she would be handling the matter when    she returned[63], the Plaintiff was very dissatisfied and    obviously furious. As evidenced by the WhatsApp    exchanges, the Plaintiff used rather hostile, aggressive   and sharp-language against the Defendant. She    admitted she was then scolding the Defendant almost    on a daily basis probably in the last few days of the   Defendant’s leave [64]. The Defendant insisted on    settling the rental after she resumed work[65] and was agreeable that the Plaintiff could come back to sign    the requisite cheque any time she wished[66]. This in    turn triggered off another issue, namely, whether the    Plaintiff should come back to sign cheques or they    should be delivered to the Plaintiff’s place for    signature. The Plaintiff considered in light of the    Defendant’s way of handling company’s matters, it should only be right for the Defendant’s husband    taking the cheques to Taipo for her signature instead    of her signing them at Central. It was because there was no reason why she needed to come back again in    March to do things which ought to have been done when she was in Central. The emphasis had shifted –    the parties appeared to insist on their own way of    managing the Company. The real issue surfaced. It    was the lack of mutual trust, and their incompatible   character[67].   

94.  As evidenced from the WhatsApp exchanges from 27 February 2015 onward, the Plaintiff had become very emotional. She adopted an un-cooperative attitude, and in my view, an irrational and confrontational one. For example, when she asked the Defendant’s husband to deliver cheques to Taipo for her signature, she added “this would be the rule of game from now on, okay![68]”. She even said she would retaliate and repay the Defendant 10 times what the Defendant had done to her[69]. Even when the Defendant requested to withhold discussion, and to discuss further after her maternity leave[70], the Plaintiff pressed on, and in a derogating manner[71]. It is not until the Plaintiff had repeated that she was on maternity leave and would deal the matter after she returned[72] that the chat on non-payment of rent has apparently stopped, and had apparently shifted to another topic raised by the Defendant.

95.  Although there is a valid reason for the Plaintiff to raise the issue of late payment of rent when she received the demand letter from the landlord’s solicitors, in the Court’s judgment, there had already been sufficient exchanges on 27 February 2015. The matter had already received the Defendant’s attention and been thoroughly discussed. She was determined to go about rent payment her way. There is really not much the Plaintiff could do in the circumstances. In the Court’s judgment, at least the exchanges on 28 February 2015 on payment of rental unnecessary. It was pursued by the Plaintiff under the disguise of the rental issue or mis-management but was with a view to venting her emotion and anger against the Defendant. It was pursued in a hostile and derogatory manner, over and above what is reasonable necessary to pursue company’s affairs. In the circumstances, I have no doubt that the derogatory remarks and hostility displayed amount to disturbance and even harassment. The overall conduct of the Plaintiff in February 2015 was too much taking into account the Defendant then was then only less than 4 weeks after her confinement.

96.  It is this Court’s view that the unreasonable manner in which the Plaintiff asked the Defendant to handle the Company’s matter causes disturbance to the Defendant. Hostility was shown. The Defendant had no peace of mind. It is therefore substantially true when the Defendant said she was continuously disturbed. She was even harassed to a certain extent.

(ii)   Whether the Plaintiff Had Disagreed to Pay the    Defendant’s Maternity Pay

97.  There is no dispute the blank cheque intended for the Defendant’s 2015 January salary was available to the Plaintiff for signature on 2 February 2015[73] and that for February, on 3 March 2015[74]. It is not the Plaintiff’s case that she was not aware of them. She did know there were cheques for that purpose. She did not sign them despite requests. The question is why.

98.  This obviously was the subject matter of heavy cross-examination when the Plaintiff was in the witness box. Despite her repeated explanation that it was the Defendant who failed to ask for the cheque until end of February 2015 and who failed to calculate her own salary[75] (which she admitted she had not expressed so until the Defendant raised the cheque signing issue on 28 February 2015[76]), the Plaintiff admitted her refusal was because she was then unhappy with the Defendant having taken away the essential Company’s stuffs. She explained she now wanted to verify exactly how much the Defendant should be entitled to before she signed cheques[77]. Despite her allegation that she did not mind how much the Defendant would receive as maternity leave pay[78], she admitted she now minded. She would like to be satisfied first before signing the cheques. She agreed this was different from her previous practice. The Plaintiff agreed the Defendant did sign a blank cheque of 1 February 2015 for the former’s remuneration. She filled it up, signed it and presented it for payment[79]. She did not want the Defendant be paid in full then[80].

99.  When asked why it was necessary to calculate the salary to be paid on 2 February 2015 which, as a matter of Company’s practice, covered only basic salary plus reimbursements, the Defendant explained to the effect that she was given only one cheque, and the Defendant’s husband did not bring her another cheque for commission. If she signed the only cheque she would be left with no cheque for commission as the Defendant had taken away all the cheque books[81].

100.  As regards salary for February 2015 (solely maternity leave pay), it is the Defendant’s case that on 3 March 2015, the Plaintiff had been requested on at least 3 occasions to sign the cheques (which this Court accepts[82]). Yet she refused to do so. The Plaintiff’s explanation was this. In the morning of 3 March 2015, she had tried to login the Company’s account with a view to having a rough idea of how much the Defendant should be paid for January and February 2015. It was because, she said, she was expecting to sign the Defendant’s cheques that afternoon. However, she found her access right to the Company’s account denied. She immediately rushed back. She reiterated she would sign if she could login to verify the sum payable to the Defendant.

101.  In the cross-examination, the Plaintiff confirmed that cheque of 1^st March should only cover the Defendant’s basic salary for February 2015; and she had access to Company’s account between 1 February to 1 March 2015. She said she knew according to labour law, maternity leave pay should be based on income average over the past 12 months. That was why, she alleged, she wanted to verify them before signing. She reiterated it was the Defendant’s own choice of whether to take 4 or 10 weeks’ maternity leave. She did neither care nor mind.

102.  The Plaintiff said after discussing with solicitors, she was agreeable to sign cheques for basic salary which required no verification from the system. Since that for the Defendant’s required verification she did not sign that cheque.

103.  In the WhatsApp exchanges between the parties on 28 February 2015, the Plaintiff mentioned a sum of HK$200,000 kept by the Defendant[83]. At trial, she explained the Company paid on her behalf renovation expenses in the sum of $200,000. Though booked in Company’s account, the expenses were in fact her own expenses and should therefore be paid by her personally. She did repay the company in cash. Accordingly, $200,000 was siphoned off and kept by the Defendant. They agreed the money be used for purchases which, for special reasons, had no receipts. She even cited examples in the cross examination. By setting aside money that way, it could be shared if they wished to. They might end up paying less tax.

104.  The purpose of mentioning this sum of money, explained by her, was to show that she considered there was no urgency for the Defendant’s salary. The Defendant had sufficient cash in hand to settle any unpaid salary and/or disbursements. Upon further clarification she admitted the said money was not intended to settle expenses which were routine expenses such as salary and rent which should be booked in Company’s account [84].

105.  In my judgment, there is no doubt, as a result of the Defendant having taken essential Company’s stuffs away and not having signed blank cheques as she did before, the Plaintiff considered their mutual trust and confidence for cooperation gone. The Plaintiff felt frustrated, disappointed and angry. She obviously had a reason (and perhaps a valid one) to be angry. This Court believes that with a view to venting her anger and dissatisfaction, she deliberately refused to sign the aforesaid 2 cheques. This Court does not accept the Plaintiff’s explanation that she would sign if she had the chance to verify the account. This Court believes by the refusal, she wanted to put pressure on the Defendant with a view to achieving a change of management style and perhaps better terms on sharing of profit, rather than verifying the net figures. The request to verify account had never been mentioned in her WhatsApp exchanges. Neither had it been ever mentioned in the heated argument between the parties on 3 March 2015. Had it been her intention then, it would had been raised in the quarrel. She did never mention anything about that[85].

106.  In fact, in the heat of the quarrel on 3 March 2015 she plainly admitted she would refuse to sign until they had reached agreement[86]. The letters of 9 March 2015 and 16 April 2015 issued by RY contained after-thought reasons[87]. They were dress-up grounds and were of little value compared with the contemporaneous exchanges. 

107.  Further, the blank cheques were intended for basic salaries of employees (including those of the parties). It is not understood why it would occur to her, as she now alleged and seemingly prophetically, that she might not be given another cheque later that month for the Defendant’s commission[88]. She signed all except that for the Defendant. This Court cannot help concluding she deliberately singled out the Defendant’s cheque. The Plaintiff’s explanation in this respect is not accepted.

108.  It is true the Plaintiff, being a shareholder and director, was entitled to have access to Company’s account. She had, however, placed too much emphasis on the Defendant’s faults and had lost sight of the legal requirement for punctual payment of maternity leave pay. This Court accepts the Defendant might have a total misunderstanding of her powers as a majority shareholder/director vis-à-vis the Plaintiff as a minority shareholder/director, and therefore had wrongfully “suspended’ the Plaintiff’s post as a director. However, it does not mean the Plaintiff could therefore retaliate in whatever manner and means she liked. The Defendant, who was also engaged as the Company’s employee, was entitled to be protected by the Employment Ordinance, Cap 57 (“EO”). Her maternity leave pay had to be paid on the same due date as salary[89]. In the Court’s view, measures out of grudges should not have gone too far and beyond what is acceptable under the law.

109.  In the cross-examination of the Defendant, it was suggested that the Plaintiff had eventually agreed to sign the Defendant’s cheque for February 2015. The Defendant said the Plaintiff only agreed to sign cheque for her basic salary even if she allowed her to sign[90]. This Court accept the Defendant’s evidence in this respect.

110.  The Plaintiff said the Defendant would not be prejudiced because she had got Company’s cash of $200,000. However, as her evidence stands now, this money was not intended for regular payments. It would also be unreasonable to expect the Defendant deducting her salary or maternity leave pay from this money. It would certainly attract criticism, perhaps framed differently, from the Plaintiff. In fact, in the WhatsApp exchanges, the Plaintiff was not suggesting that the Defendant could deduct her salary from the said money. The purpose of mentioning the said money was to shut the Defendant up from complaining for non-payment, hinting improper conduct might be exposed if she complained to the Labour Department. It was not her advice to the Defendant, by those WhatsApp messages, to obtain payment from such money.

111.  It is also the Plaintiff’s case that she did not know what the 70-day maternity leave pay was about[91], and the Defendant had never sought her consent for such payment[92]. This is not true as a matter of fact. During cross-examination, the Plaintiff admitted as at 23 May 2015, she knew what the 70-day maternity leave pay was about because the letter from Labour Department regarding the Defendant’s claim had already reached her[93]. Further, the Defendant had in fact via WhatsApp informed her of the request for maternity leave pay on 28 and 29 May 2015[94].

112.  It is the Plaintiff’s case that prior to the presentation of the winding-up petition, the Defendant was in control of the internet banking token. The Company was also doing business as usual. The Defendant could therefore be able to use the sales proceeds and bank balance to pay Company’s expenses, including her own outstanding maternity leave pay. As a matter of fact, the Defendant did apply Company’s fund for settlement of, inter alia, staffs’ salaries as well as her own salary for January, March and April 2015.  She should have settled her outstanding maternity leave pay in the same way as other expenses. She deliberately chose not to.

113.  Further, so far as the Plaintiff knew, a sum of about $1.46 million[95] had been withdrawn from the Company’s account between 3 March to 13 May 2015[96] and deposited into the Defendant’s and her husband’s accounts. The Defendant did not seek to deny such transfers during the cross-examination. However, she said the expenses during that period was about HK$1.6 million plus.

114.  The Defendant offered her explanation, and was, in a nutshell, this. First, since the Plaintiff had refused to sign cheque particularly for that February, the amount was expected to be highly controversial. She therefore would like to reserve this controversial issue for discussion later. Second, she was afraid the Company might not have sufficient cash to pay off its usual expenses and therefore withhold payment of her own maternity leave pay to be paid later[97]. The expenses (excluding her maternity leave pay) exceeded her withdrawal. She agreed she received pay rise of about 10%[98] during that period, but said all employees had received a similar pay rise during the same period. Her maternity leave pay became unpaid as a result of the petition.

115.  Taking the evidence as a whole including the Re-amended Petition[99] and the Defendant’s affirmation filed in the petition[100], this Court accepts the Defendant’s above explanation. This Court believed it was beyond the Defendant’s contemplation that the Plaintiff would launch the attack by winding up the Company. Otherwise this Court believes the Defendant would have withdrawn all the money from the Company’s bank account. According to her evidence (which this Court accepts), there was about $0.6 million in the account when it was frozen. She was then focussing on the alleged wrongdoings of the Plaintiff[101]. She, being without legal advice, did not realize the Company could be winded up and her dominating position could be knocked out completely that way.

116.  It is noted after freezing of the bank account, the Company, acting through the Defendant issued a letter of 27 May 2015 to RY. By that letter, the Defendant, perhaps being a layman and without legal advice, had misunderstood the legal effect of a petition, had wrongly accused the Plaintiff of suspending the Company’s account “illegitimately and without ground”. However, she did request the Plaintiff to “authorize the bank to remove the suspension on the account”[102]. As such, the Plaintiff knew the Defendant was asking for maternity leave payment and for unfreezing of account for a purpose including satisfaction of such payment.

117.  At trial, the Plaintiff explained the process required a validation order to be made by the Court, and it was not up her to unilaterally authorize payment. While this Court accepts the proper procedure for payment was a validation order, consent from the petitioner would naturally remove the major obstacle. After all, this was essentially a shareholders’ dispute and not a case where the Company was insolvent. In fact, the Plaintiff acknowledged the Company solvent and should continue business [103]. The presentation of a winding-up petition was for preserving the Company’s assets[104]. It was therefore not expected that other creditors might oppose such application if the Company was solvent. It was only in RY’s letter of 5 June 2015 that she first mentioned about a validation order. Yet she did not indicate whether she would be consenting to it despite requests to unfreeze the bank account. It is this Court’s view that the Plaintiff knew that the unpaid payments included the Defendant’s maternity leave pay and the Plaintiff simply refused to authorize such payments[105].

118.  It is perhaps controversial as to whether the Defendant was entitled to be paid 10 weeks’ maternity leave pay under Part III of the EO when she had only taken leave of 4 weeks [106]. No submission has been made by both counsel on this issue. In any event, by reasons of the foregoing, the statement that the Plaintiff did disagree to pay the Defendant maternity leave pay of 10 weeks as said in the Facebook Messages was substantially true. It is because the material part being whether or not the Plaintiff agreed to pay maternity leave pay. This is the theme of the Defendant’s post. It matters not whether it was for 10 weeks or 4 weeks’ leave. The employer, its agent or manager may be liable by virtue of sections 2 and 15A of EO, and may commit a criminal offence. It is a serious matter.

119.  As said above, by refusing to sign cheques the Plaintiff would like to put pressure on the Defendant. She also wanted to show her anger and dissatisfaction. She paid no heed to the Defendant’s rights under the labour law though she knew employees’ salary had to be paid within 7 days and maternity leave pay being an average of past income[107]. Further, she did not care whether and when the Defendant could get such payment, particularly after the 3 March quarrel. Her prime concern was her own shareholder interest and how to retaliate by knocking out the Defendant who she considered arrogant. She obviously was overtaken by anger. She did not consider unfreezing the bank account for, inter alia, the Defendant’s maternity leave pay. In the circumstances, the statement that the Plaintiff breached the law readily and in an as-she-wish manner can also be substantially established.

(iii)   Whether the Plaintiff had received $800,000 as salary

120.  There is no dispute that for the past year, the Plaintiff received the following sums, namely, (i) monthly salary of $360,000 (12 x $30,000); (ii) $375,000 as bonus (or dividend as asserted by the Plaintiff); (iii) $50,000 as special bonus; (iv) $20,000 for attending course; and (v) $20,000 for purchase of computer. The aggregate of these sums was $825,000. Mr Wong of counsel contended at least the $375,000 was dividend and should not be regarded salary. The Defendant said she considered all could be regarded as the Plaintiff’s salary.

121.  The Chinese words “人工 (pronounced in Punti as yan⁶ gung¹with agreed translation: salary)” in the Punti language very often means more than basic salary. It includes the remuneration for one’s work. As such, dividend is included in its rough meaning. What the Defendant said the Plaintiff having received salary (人工) of more than $800,000 for the last year is, in my judgment, substantially true.     

(iv)   Whether the Plaintiff had breached her Director’s Duties; & Who Possesses the Intellectual Properties   of the 5 Products

122.  These 2 questions were posed for the purpose of determining whether the defence of justification in relation to the Facebook Messages, can be established. It was raised particularly in relation to the defamatory imputation, namely, the Plaintiff had done something illegal and therefore was unworthy to be an educator. The Defendant sought to rely on the Plaintiff’s (i) disagreement to pay maternity leave pay; (ii) breach of director’s duty to compete with the Company; and (iii) infringing of the intellectual properties right of the Company in respect of the 5 products being substantially true and a breach of law to justify such statement.

123.  The learned author of Gatley has this to say at para 11.6, and this Court respectfully agrees:

“It is the particular imputation that the words are decided to bear that must be proved substantially true. The defendant will not avoid liability by proving the truth of other facts that might be damaging to the claimant’s reputation, but which were not presented or implied in the publication made (or which were not complained of). This is the case even if the other facts relate to the same sector of the claimant’s life, and are no less damaging to the claimant’s reputation”

(Emphasis added)

124.  In the Court’s judgment, the particular defamatory imputation of the Facebook Messages was made in the context of breach of labour law by failing to pay maternity leave pay. Neither the breach of director’s duties, nor the infringement of intellectual properties had ever been mentioned or implied in the said Facebook Messages. According to the said passage of Gatley, the proof or otherwise of these factual issues cannot help the Defendant.

125.  The above should have sufficiently disposed of the 2 issues. However, this Court would like to briefly comment on the 2 issues in the event this Court were wrong in ruling they are irrelevant.

126.  The parties had given evidence on these issues. It was the Plaintiff’s case that the intellectual properties of the beauty or skin care products were developed by her and belonged to her. It was her side business. She had such interest and started to explore as early as November/December 2013. The Defendant knew and did not mind she had such side business and in fact had encouraged her to do so. Although the quotations and other documents were sent to the Company, she said they had been wrongly sent and should have been sent to her. It was because the Taiwan contacts were introduced by the Defendant. These suppliers relied on the early address when further corresponding with her. She said the Defendant had acknowledged her intellectual rights in those products. She was of the view such products not competing with the Company. Since she did not take out any business registration, the products were delivered to the Company and were apparently held under its name. For this side business, she had studied at least 4 courses, altered certain product formulation as improvement and sourced the bottles for such products. During cross-examination, she said in a telephone conversation in January 2015, it was agreed between them the products business belonged to her. She therefore incorporated Phyto Lab on 6 February 2015.

127.  The Defendant’s case was simple and straightforward. These products belonged to the Company because they were developed by the Company with its own resources. The Plaintiff was then the Company’s employee and director. The Company funded the Plaintiff attending courses in Taiwan. The ingredients and bottles are all paid for by the Company. Products were delivered to, and paid by, the Company[108]. Costs and sales income of such products were booked in the Company’s account[109]. They were promoted in the Company’s internet social media. The products were promoted and sold to the Company’s customers (this fact is not disputed). Staffs of the Company could get a commission of $50 per bottle of sale; the Defendant also submitted that 10% of such sale and profit generated would be shared by the parties as shareholders’ dividend.

128.  After reading the transcript of the parties’ heated quarrel on 3 March, 2015 and hearing parties’ evidence at trial, on a balance this Court believes the beauty/skin care products were developed, though not keenly, by the Company whose major source of income came from “treatment” and not “sale” of skin products. The development of such products was funded by the Company though works were carried out by the Plaintiff. She was then an employee and later a director of the Company. She was paid by the Company. She owed a duties of fidelity to the Company. As a matter of law the intellectual property of any products thus developed belonged to the employer, i.e. the Company, and not the employee, i.e. the Plaintiff. It does not matter whether or not she initiated improvement of the products formulation as it arose from her duties owed to the Company.

129.  Evidence in support of the Plaintiff’s allegation the product being hers was unconvincing. There were inconsistencies in her evidence on products’ ownership. While she stated in the witness statement that the intellectual right of the skin care products were hers from the very beginning[110], she said at trial that by end of January 2015, they had a discussion over the phone whereby it was agreed rights of the beauty/skin care products belonged to her[111], as a result of which Phyto Lab was incorporated.

130.  This Court does not believe the Plaintiff’s evidence in this respect. It is because if there were such agreement, it should have been referred to by the parties or any of them in the quarrel on 3 March 2015. None could be found. Neither was this agreement/understanding ever mentioned in her witness statement. Further, even the design fee invoice for product(s)’ logo was issued to the Company. It was as early as December 2013[112] when the Plaintiff was still an employee.  The products were promoted in the Company’s internet platforms for which the Plaintiff was under a duty as the Company’s employee to manage. Evidence in support of the Court’s conclusion can be abundantly found[113].

131.  That being the conclusion of the Court, it follows that the intellectual rights of the 5 Products belonged to the Company.

132.  Accordingly, when the Plaintiff incorporated Phyto Lab on 6 February 2015 for sale of the 5 Products, the Plaintiff was in breach of her fiduciary duties as a Company’s director. Such breaches include (i) directly competing with the Company; (ii) appropriating as hers Company’s intellectual rights; and (iii) siphoning off profits which ought to have belonged to the Company. It is not in dispute that, as evidence in the 3 March quarrel, the products had all along been promoted and sold by the Company. It made a profit, though small [114], out of it.

133.  This Court finds against the Plaintiff in the 2 questions.

Whether Fair/Honest Comment to Say Plaintiff Unworthy of Being an Educator

134.  As discussed above, Part C of the Facebook Messages comprises 2 charges, one accusing the Plaintiff readily to breach law in an as-she-wish manner, and the second being unworthy to be an educator because of that. The Defendant has, as discussed above, established the first charge justified substantially as a matter of fact. The next question is what is the nature of the second charge, and whether the defence of fair comment is available if it is a comment at all.

135.  In my view, the second charge is in the nature of a comment. It was an opinion expressed on a fact. Although the statement was in question form, it is a statement couched in a rhetorical question. The fact relied on was the Plaintiff being ready to breach law in an as-she-wish manner (already established) and the opinion was she did not possess the necessary quality expected of an educator.

136.  As set out in [41(v)] above, the ingredients of the defence of fair comment are fivefold, and such defence can be defeated by the Plaintiff proving the comment being “actuated by malice” when made. As clarified in Gatley[115], Albert Cheng[116] and Spiller v Joseph[117], this defence should better be re-labelled “honest comment”. Further, “malice” does not bear its usual English meaning. It’s meaning is different from that when used in the context of qualified privilege[118]. It carries the meaning of honest belief in the context of this defence. Lord Nicholls NPJ had made an authoritative statement of law respecting “malice” in the context of this defence in Albert Cheng (supra)[119] after discussing the rationale of the defence and reviewing a number of cases and textbooks (some often-cited but regrettable, wrongly decided) at p.361I - 362A as follows:

“To summarise, in my view a comment which falls within the objective limits of the defence of fair comment can lose its immunity only by proof that the defendant did not genuinely hold the view he expressed. Honestly of belief is the touchstone. Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive, does not of itself defeat the defence. However, proof of such motivation may be evidence, sometimes compelling evidence, from which lack of genuine belief in the view expressed may be inferred. Proof of motivation may also be relevant on other issues in the action, such as damages.”

(My emphasis added)

137.  This Court will be guided by the principles set out above in approaching this alleged defamatory comment.

138.  The first requirement is the comment must be a matter of public interest. It has to be remembered this defence is available as a matter of public interest and for safeguarding the freedom of expression[120]. The courts have recognized that the public has a legitimate concern in matters or events which a claimant might seek to keep from the public gaze[121]. The following passage of Lord Denning MR[122] was cited as setting out the rule in approaching public interest:

“[W]henever a matter is such as to affect people at large, so that they may be legitimately interested in or concerned at what is going on or what may happen to them or to the others; then it is a matter of public interest on which everyone is entitled to make fair comment”

139.  Li CJ in Albert Cheng (supra)[123] said that the courts should adopt a generous approach so that the right of fair comment on matters of public interest is maintained in its full vigour.

140.  In the present case, the Plaintiff is a tutorial teacher with Modern Education. Although she was not teaching in a traditional school, she was required, according to her evidence, to be registered with the Education Department as a teacher. It can therefore be inferred her fitness or otherwise, either professionally in terms of qualification or ethically, is a matter of public interest and is subject to Government supervision. Further, unlike a traditional school where students for a particular year would be limited, so long as students are interested to enrol in her course, she could have access to as many students as she her popularity takes her. At trial, she said for regular class time (between September to April/May the next year), about 700 students enrolled in her ICT course. The size of students directly taught by her was obviously more than if she taught in a traditional school. Modern Education is a listed profit making company. There is no reason to suggest they would limit students’ intake. The Plaintiff could appear in classes by way of video or in person. She also said she was popular, so popular that the HKJSECS had invited her as consultant. This Court believes she was even in a more influential position than a traditional school teacher.

141.  A majority of the DSE students are minors. Their parents entrust their children to her as a teacher. Traditionally, whether in traditional schools or tutorial classes, teachers are expected to be a role model to students and provide guidance, whether academically or ethically. They are expected to be a role model of observing the law and civic obligations. In the Court’s judgment, the question of whether she is fit to be or worthy of a teacher affects students and parents at large. It is obviously a matter of public interest.

142.  Regarding the 2^nd and 3^rd ingredients, as analysed above, it is a comment, and the same is based on facts substantially true.

143.  The Defendant stated in the Defence that the “illegal acts” included matters relating to breach of fiduciary duties as a director. As discussed above, this comment is neither explicitly nor implicitly indicate such facts. Contextually, it is directly linked to her breach of labour law by disagreeing to pay maternity leave pay. That being the case, this Court considers the 4^th ingredient, again, can be substantiated.

144.  The 5^th ingredient is whether the comment is honestly held.

145.  In the Reply, the Plaintiff pleaded the said comment was malicious because it was made by the Defendant out of anger and spite and ill-will[124]. The reasons for her anger were pleaded as these. The petition against the Company and its subsequent winding up adversely affected the Defendant financially. She had to incur legal costs in the proceedings. Further, costs of the winding up petition were awarded to the Plaintiff. Such anger was also evidenced by the use of “really 100,000 times angry !!!” in the Facebook Messages. The Plaintiff took the view the comment was made knowingly they were false or recklessly, not caring whether they were true or not out of spite or ill-will towards the Plaintiff.

146.  As said by Lord Nicholls (see [136] above), even if a defamatory statement was made out of spite or ill-will or even with the intent of injuring another, the defence of fair comment will not be destroyed if the comment was genuinely held. He asked this question rhetorically:

“The spiteful publication of a defamatory statement of fact attracts no remedy if the statement is proved to be true. Why should the position be different for the spiteful publication of a defamatory, genuinely held comment based on true fact?”

147.  The Facebook Messages were published on 23 May 2015. By then, the winding up petition had just been presented. It was not until 7 October 2015[125] that a winding up order was made. The Defendant would not have foreseen that the Plaintiff would be awarded costs in the petition[126]. Her spite, if any, would not have linked to the costs order made at a later date.

148.  After hearing and reading the evidence, no doubt the parties were on very bad terms when the Company was served with the Petition on 12 May 2015. The Company’s bank account was frozen as a result. Despite the fact she had immediately approached the Labour Department a few days later on 19 May 2015, the Plaintiff refused to attend. This Court believes the Defendant was angry when she made the comment.

149.  This Court also believes the Facebook Messages were made by the Defendant out of spite because of the impact on her brought about by the petition. She blurted out her harsh view in the course of exchanges on the Facebook about the Plaintiff who held herself out as an admirable or famous tutorial queen[127]. She considered the Plaintiff, by reason of her refusal to pay maternity leave which was so obviously against the law, was not measured up to the standard and expectation of a teacher. There is no evidence suggesting she did not honestly hold this view. Her Facebook post the next day expressing that she still felt aggrieved by not having received the maternity leave pay supported this Court’s conclusion the said comment honestly held[128].

150.  This Court also considers the comments fair. It was couched in a mild way of a rhetorical question and not a direct charge. Neither does it spill over to the Plaintiff’s other qualities not related to her profession as a teacher.  

151.  Therefore, in respect of Part C of the Facebook Messages, this Court considers the defence of fair comment established.

Meaning C of the Shop Notice/e-Notice

152.  The only defamatory imputation found by this Court of the Notice is that it will lead readers to think the Plaintiff having no respect for customers’ interest: see [86] above. In the Court’s judgment, whether the Plaintiff disregarded the interest of customers is a question of fact. The Defendant will have a defence if she can prove what she said is substantially true.

153.  It is the Defendant’s case that prior to her maternity leave, the Plaintiff had approached her in January 2015 on 3 occasions. One of the Plaintiff’s request was she asked for increase of shareholding by 9%, together with a salary rise. In the witness statement the Defendant said the requested rise was from $30,000 to over HK$100,000[129]. In the Reply, save and except the Plaintiff denied any request for transfer of 9% shareholding, paragraph 8(1) of the Defence was admitted. As such, the Plaintiff admitted at least she had asked for a salary rise, though it might not be to the extent of HK$100,000 which was then not particularized to the Plaintiff.

154.  There is no doubt that, as evidenced by the transcript of the showdown quarrel on 3 March 2015, apart from the management style[130], one main dispute centred on the inadequacy of the Plaintiff’s share of profit in the Company[131]. She wanted a better sharing, and there was apparent opposition. This led to break up of their relationship and the winding-up.

155.  On the other hand, it is the Defendant’s case that the Company had about 500 customers. This Court accepted her evidence as she was the one having the daily operation and management of the Company. It is the parties’ common ground some of these customers had prepaid the Company their treatment services. Even Yiu testified that she had unused beauty treatment plan with the Company worth a few thousand dollars. Yiu was concerned she could not get them back. This Court believes there were many customers who had suffered loss like Yiu because the Company ceased its business.

156.  The Defendant’s explanation in Court for the Notice, in gist, is this[132]. She considered because of the eventual cessation of business caused by freezing of the bank account brought about by the Plaintiff’s petition, pre-paid customers might not be able to get back their money. She was afraid some customers might think the shareholders had absconded with the money and might file a report of deception with the Police. The Police might come after them. She therefore issued the Notice to explain the situation. She also wanted to tell them they had not pocketed the money.

157.  The Court accepts her explanation. Since the Company was not insolvent[133], had it continued to operate, no doubt customers could have continued to obtain their pre-paid services.

158.  It is not in dispute that after 3 March 2015 they had not touched base on personal basis on how to resolve their internal conflict without affecting customers’ interest. It is noted that on one hand the Plaintiff saw fit to warn the Defendant she had a duty to keep the business running, she made no response to the request to unfreeze the bank account to help her. There was no indication of consent to the validation order if applied for when it was first mentioned by the RY on 5 June 2015[134]. Nowhere in RY’s letters had she ever mentioned interest of pre-payment customers. The Plaintiff’s winding up petition was presented for the purpose of pressurizing the Defendant and protecting her own interest. Although she has her rights to wind up the quasi-partnership company on just and equitable grounds, and the Defendant is not without blame in the circumstances of this case, it will not preclude this Court from concluding, taking the evidence as a whole, the petition was proceeded with, without any regards to customers’ interest. No evidence to the otherwise was adduced by the Plaintiff, particularly on how to deal with customers’ pre-payment if the Company was winded up. What the Plaintiff had done was predominately motivated by her self-interest and dislike of the Defendant. That being the case, this Court considers the statement that the Plaintiff disregarding customers’ interest is substantial true. A defence of justification is established.

159.  Even if this Court were wrong, and the defamatory imputation should be of the nature of a comment, this Court still considers the fivefold criteria for the defence of fair/honest comment met. First, the Company was providing beauty service to customers on pre-payment basis. They were the public at large. Cessation of its business suddenly would obviously adversely affect interest of all these customers. The alleged comment is therefore a matter of public interest. Second, it is a comment. Third, as set out above, the comment is based on facts which are substantially true. It was the Plaintiff who brought about the freezing of account and eventual cessation of business of the Company. Fourth, the comment indicated the facts on which it was based, namely, the freezing of Company’s account rendering it unable to pay staffs’ salaries and thus cessation of its business. Last, this Court considers the Defendant firmly and honestly believed such acts were not in the interest of customers and a total disregard of customers’ interest. In the Court’s view, it is a fair view. If a businessman, when taking a drastic step to end a company with lots of prepaid customers, did not pay any heed to their prepayment at all and only focused on her own shareholder’s interest, it is simply fair to say that person has no respect to customers’ interest. It is particularly so when she continued to maintain a hard-line stance despite the Defendant said she would cease business due to lack of fund. Rhetorically, why is it unfair to say so.

Quantum & Reliefs

160.  For the reasons set out in the preceding paragraphs, the Plaintiff’s claim of defamation based on the Facebook Messages and the Notice must fail.

161.  That being the case, there is no need for this Court to consider quantum. However, this Court would like to briefly comment on the following matters which have been canvassed in the parties’ evidence.

162.  First, it is noted that apart from general damage, the Plaintiff seeks aggravated damages. The pleaded basis[135] for this is that not only did the Defendant fail to respond to the Plaintiff’s request through RY[136] to stop the Facebook Messages and offer of an apology. Instead, the Defendant published yet another defamatory Notice in the Company’s website and outside the Company’s entrance. They were not removed nor was an apology offered despite RY’s letter[137].

163.  In my judgment, even if this Court were wrong in dismissing the Plaintiff’s claim, her claim for aggravated damages is not justified. It is because the Defendant did change on 7 June 2015 the setting of the Facebook Messages from public to private after being warned[138]. It is a positive response. Further, this Court believes the intention behind the Shop Notice/e-Notice was with a view to informing customers of what had actually happened to the Company; and to avoid the nasty consequence of potential Police investigation. In respect of the Facebook Messages and the Notice, although the Defendant was then angry with the Plaintiff, this Court does not find that she published them with an intention or bad motive to defaming or injuring the Plaintiff. The contention that the Defendant’s alleged conduct serves to aggravate the injury, if any, cannot be established.

164.  Second, there is now no risk the alleged defamatory statements re-published. The e-Notice disappeared in September 2015 when the Company’s server’s contract expired.  The Shop Notice was also removed in the same year when the landlord got back possession of the Shop. The Facebook Messages had been set private a few days of its publication. The Plaintiff had not put in evidence that there is a real risk the Defendant would repeat defaming her again. The remedies of injunction restraining re-publication or further publication were unnecessary even as at the time when the proceedings were issued.

165.  Third, it is the Plaintiff’s case the alleged defamatory statements were widely known among her friends, students, employees, tutors’ colleagues and customers and those in her beauty products business[139]. Friends of boxing house and friends introduced to the Company by her (including other tutor friends) had enquired about the matters via, inter alia, WhatsApp and other social media. Accordingly, she said, her reputation was greatly and adversely affected. She suffered from considerable stress and hurt.

166.  After hearing the parties’ evidence, this Court considers there is no substantial publication within the jurisdiction. Further, no real loss had actually caused to her profession as a tutorial teacher or in her beauty products business otherwise she would have produced evidence to substantiate such losses. None has been produced. This Court also has the following observation:

i)   the Facebook Messages did not identify the Plaintiff    by her name. Subsequent posts did not apparently   show any Defendant’s friends able to identify the “minority shareholder” as the Plaintiff. Although in    the Facebook platform the Plaintiff’s friends could be redirected to the Defendant’s page by the “friend”    mechanism and therefore were able to see the alleged    publication, the Plaintiff did not produce any such evidence to substantiate her case. At trial, the Plaintiff    only said Rammie might know her. She believed there might be about 10 odd common Facebook friends. Her    friend called Warick had talked to her about this    matter. Yiu was the other. Except Yiu, no other names were mentioned in her witness statements.

ii)   she admitted some of the enquirers were customers    referred by her to the Company. They had purchased pre-paid services from the Company. This    Court believes, like Yiu, they were more concerned    with their loss than anything else. That is the purpose    of the Notice/e-Notice found by this Court.

iii)   During cross-examination, the Plaintiff agreed by   merely mentioning a tutorial teacher doing beauty    business in the Facebook Messages, she would not be    readily identified by the readers. There were more than one tutorial teachers in the beauty business.

iv)   The Shop Notice did not mention the Plaintiff a    tutorial teacher. This Court did not believe apart from    customers, any passers-by would be interested.

v)   The Plaintiff said there were discussion about her in    the internet forum of “真補習secret (English    translation: genuine tutorial secret)” which was very    popular among tutorial students in Hong Kong. Again,    she produced no screen captures of such discussion    and what the comments were. Given the allegation of    defamation was raised when the alleged statements    were first published, this Court believes, had these comments were really adverse to the Plaintiff as    alleged, the Plaintiff should have produced at least    some screen captures as evidence in support. None was produced. There is no direct evidence suggesting that less students had enrolled in her classes. This    Court does not believe the scale and comments being    adverse as alleged by the Plaintiff.

167.  I accept Miss Tang’s submission that there is no rebuttable presumption of law that an article placed on the internet open to general access has been published to a substantial no of people within the jurisdiction: Al Amoudi v Brisard and Another[140], although it is always tempting to draw such inference of fact. Given the lack of convincing evidence on the vast number of people that the Facebook Messages and Notice can reach identifiable the “minority shareholder” to the Plaintiff, this Court believes, even if those statements were defamatory, the extent of the readers reached is limited. At any rate, it cannot be said to be substantial though unquantifiable.

168.  Assuming for the purpose of discussion that all statements complained of were defamatory, the damages suffered, which are compensatory in nature, would be minimal. Having reviewed the cases referred to by counsel[141], the same should not exceed $10,000.

Disposition and Order

169.  The Plaintiff’s claim is hereby dismissed.

170.  There is no reason why the usual rule of costs to follow the event inapplicable. This Court now makes an order nisi that the Plaintiff do pay the Defendant’s costs of the Action, together with certificate for counsel, to be taxed if not agreed, such costs order becomes absolute in 14 days if no application is made to vary the same.

171.  Lastly, I would like to apologize to the parties for the time taken by me to finish the judgment.