WONG WING HO v. CHONG LAI WAH AND ANOTHER

CACV 212/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 212 OF 2007

(ON APPEAL FROM HCA 1948 OF 2005)

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JUDGMENT

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Hon Tang VP:

1.   For the reasons given by Cheung JA, I have reluctantly come to the conclusion that the appeal must be allowed.  That is so, although I share Chu J’s view that:

‘	… the parts of the 1st and 2nd Letters complained of by the plaintiff, in their ordinary and natural meanings, do not bear or give rise to the defamatory meanings pleaded …’

Unfortunately, the test is: is it

‘	… arguable that the words complained of in the present case are capable of bearing a meaning defamatory of the plaintiff.”  per Lord Pearson in Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1268.’

2.   This appeal illustrates the danger in defamation actions of trying to strike out what may appear to be an extremely weak case.  Such cases normally do not proceed to trial but the temptation to hasten its demise should be resisted.

3.  The 2^nd defendant submitted that the plaintiff should not have sued him personally, that the letters were duly authorized by the Incorporated Owners and issued pursuant to a resolution passed at the Management Committee Meeting.  On this, the learned judge decided against the 2^nd defendant, and rightly so in my view.  The plaintiff’s tactic may smack of victimization but the 2^nd defendant is probably entitled to an indemnity by the Incorporated Owners, although that is not a matter for decision today.

4.   In any event, I agree with Chu J that it is arguable that the 2^nd defendant:

‘	… carried or participated in the publication of the 1st and 2nd Letters.’

5.  So even if the point had been properly raised, it would not have succeeded.

6.   The appeal is allowed with costs here and below.

Hon Cheung JA :

Background of the case

7.   The plaintiff is the owner of Shop I on the 1^st Floor of Century Industrial Centre situated at 33-35 Au Pui Wan Street, Fo Tan, Shatin, New Territories (‘the building’).

8.   The owners of the building had been registered as a corporation under the Building Management Ordinance (Cap. 344) (‘BMO’).  In July 2005 the 1^st defendant was the chairlady of the corporation and the 2^nd defendant was a committee member of the 8^th Management Committee of the corporation. 

9.   In July 2005 the corporation issued two letters to the plaintiff with copies sent to the other owners of the building.  The first letter was dated 11July 2005 and the content is as follows :

「	更正
	致 :	前法團委員黃永浩 先生
		世紀中心地鋪I業主
	非法霸佔車位
	繼閣下欠世紀中心業主近三年水費合共$16,115, 另有一項為非法霸佔車位一事與閣下有關，請與本法團澄清立場，免增誤會。
	按 7 月 5 日法團第十三次會議，FW2638 車主蘇先生在會議聲稱，向閣下租用車位包括『黃格位』超過十年，如不與閣下解決『黃格位』事宜，便會惹來更大麻煩。
	法團暫列這聲明為『善意忠告』，但這忠告是震撼的，各委員及嘉賓聽得清楚和印象深刻的。蘇先生聲稱這『黃格位』是與『前法團』條件交換，閣下有書面證據，蘇先生自稱也有一份證據，楊宗鎏祕書即場確認知道當時內情，故此法團請管理公司複製一套錄音帶以作後用。
	由於閣下婉拒法團邀請出席 7/5 日會議，現書面請閣下澄清以下要點：
	(1)	閣下是否 C/T 4 車位及車位旁黃格承租受益人，超過十年?
	(2)	是否有書面與法團交換?
	(3)	交換條件是否曾與法團達成?
	請閣下於五天內書面答覆法團為盼。
		此致
			世紀中心第八屆業主立案法團謹啟
				日期：2005年7月11日
	抄送 ： 全體業主及法團委員
	法團耗用9小時（人時算）。」

10.  The 2^nd letter was dated 15 July 2005 and the content is as follows : 

	致 :	前法團委員黃永浩 先生
		世紀中心地鋪I業主
	欠三年水費
	按閣下 7 月 5 日來函，前後收到閣下來信共 9 封，都涉及同一『欠三年水費』事件，無理索求，恕本法團無暇回應。
	法團正考慮法律解決。
		世紀中心第八屆業主立案法團謹啟
				日期 ： 2005年7月15日
	抄報 ： 世紀全體業主
	註 ： 本法圓為此事累積耗用超過 100 小時，癱瘓了其他法團工作
	法團忠告業主 ： 請認識你的授權代表」

11.  The plaintiff claimed that in respect of the 1^st letter, the heading and the first paragraph were defamatory of him.  The translation of the relevant parts is as follows :

‘	Illegal occupation of car park space
	You owe the owners of Century Industrial Centre water charges for almost 3 years totalling $16,115.  In addition, you are also related to an incident involving illegal trespass and occupation of car park space.  Please clarify your position with the Incorporated owners to avoid any misunderstanding.’

12.  In respect of the 2^nd letter the plaintiff claimed that the whole letter was defamatory of him.  The translation of the 2^nd letter is as follows :

‘	3 years of water charges owed
	Including your letter dated 5 July 2005, we have received a total of 9 letters from you.  Since they are all related to the incident of “3 years of water charges owed” and contain unreasonable demands, the IO has no time to respond to them.
	The IO is considering resolving the matter via legal channel.
	“	From the 8th Management Committee of the Incorporated Owners of Century Industrial Centre
	Dated : 15 July 20056
	Copied to : All the owners of Century [Industrial Centre]”.
	Note : IO has expended more than 100 hours in dealing with this matter.  Other IO matters were as a result crippled.  Please learn about your authorised representative.’

13.  The plaintiff sued the defendants for defamation.  The defendants applied to strike out the statement of claim on the ground that it disclosed no reasonable cause of action and succeeded before Chu J.  The plaintiff now appeals to this Court. 

Could the plaintiff sue the defendants?

14.  Chu J first of all held that while the two letters were issued and authorised by the corporation and that the plaintiff could have sued the corporation as well, he could also sue the defendants because arguably the defendants had, in their capacity as the chairlady and a member of the 8^th Management Committee of the corporation, taken part in authorising the issue of two letters to the plaintiff.  And thus they had caused or participated in the publication of the letters.  There was no Respondent’s notice filed by the defendants challenging this particular issue. 

15.  Although the 2^nd defendant who now acts in person submitted that the plaintiff should not have sued him, this is not a matter that he is entitled to raise in the plaintiff’s appeal.  In any event, I agree with Chu J’s view on this matter.

The issue

16.  The sole issue in this appeal is whether Chu J was correct to strike out the statement of claim on the ground that it disclosed no reasonable cause of action.

The appropriate test

17.  In defamation cases the practice is that at the close of the plaintiff’s case the defendant may make a submission of no case to answer and invite the judge to withdraw the case from the jury.  The judge will then consider whether the words complained of are capable of bearing a defamatory meaning of the plaintiff.  If the judge so decides then he will leave the matter to the jury who will then decide whether the words complained of are actually defamatory of the plaintiff, see : Morgan v. Odhams Press Ltd [1971] 1 WLR 1239.  As Lord Morris of Borth-y-Gest observed at pg 1251 :

‘	He (i.e. the judge) will decide whether a reasonable man could (not would) regard the words as defamatory.  If they are capable of being so regarded then it will be for the jury to decide whether or not the word did bear a defamatory meaning.’

18.   Consistent with this practice, for the purpose of a striking out application of a statement of claim based on defamation, the test is not whether it is plain and obvious that the words are not defamatory but rather whether it is plain and obvious that the words are incapable of bearing a defamatory meaning of the plaintiff.  This approach can be gathered from the majority decision of Lord Pearson and Sir Gordon Willmer in Drummond-Jackson v. British Medical Association [1970] 1 WLR 688.  The case was concerned with the striking out of a statement of claim on defamation. 

19.   Lord Pearson after referring to the plain and obvious requirement in a striking out application stated at page 697 that,

‘	Does this statement of claim disclose an alleged cause of action which has some chance of success?  For practical purposes the answer must be Yes, unless the words complained of (which are the whole article) are incapable of bearing any meaning defamatory of the plaintiff.’

20.   Lord Pearson further expanded on this in Morgan at page 1268 :

‘

Before leaving the case of Drummond-Jackson v. British Medical Association, I should point out that there was an error at the end of my judgment, at p. 699 of the report.  At the stage I had already dealt with the question of principle involved and was giving the reason for dismissing the application under R.S.C., Ord. 18, r. 19.  What I said was: “The words complained of in the present case are capable of bearing a meaning defamatory of the plaintiff.”  That was going too far, making a decision that should have been left to the trial judge.  The correct formula would have been “It is arguable that the words complained of in the present case are capable of bearing a meaning defamatory of the plaintiff.’

21.   On the issue of what is plain and obvious Sir Gordon Willmer in Drummond-Jackson at page 700 held that :

‘

The question whether a point is plain and obvious does not depend upon the length of time it takes to argue.  Rather the question is whether, when the point has been argued, it has become plain and obvious that there can be but one result.....I think that a better test for determining whether a point is plain and obvious is to see how many, if any, of the judges who have occasion to hear it argued are prepared in the end to express a dissenting opinion.’

22.   The test propounded in the two cases is the appropriate test that the Hong Kong courts should apply.

Recent English development

23.   Ms Lau, counsel for the 1^st defendant, who also did not appear in the court below, relied on the recent English Court of Appeal decision of Jameel (Yousef) v. Dow Jones & Co. Inc [2005] QB 946 in which the Court applied the proactive approach required by the overriding objective of the English Civil Procedure Rules and struck out a statement of claim in a defamation action as an abuse of process.  Hong Kong has not adopted the same rules and the implication of the English approach has not been canvassed.  In the circumstances I will continue to adopt the traditional test I have addressed earlier.

The approach before the Judge

24.   In the present case the appropriate test was apparently not referred to Chu J.  In fact the cases of Morgan and Drummond-Jackson were only referred to by Mr. Lin, counsel for the plaintiff, in the morning of the appeal.  Mr. Lin did not appear before the Judge.  From the judgment one can discern that Chu J was invited by counsel for the defendants to consider whether the words were defamatory and not whether the words were capable of bearing the defamatory meaning of the plaintiff.  This can be seen in the following passage of the judgment :

‘	32.	The second main ground of the defendants’ application is that the words complained of by the plaintiff do not amount to defamatory having regard to the 1st and 2nd Letters as a whole and also because the matters stated therein are substantially true.
	35.	In my view, the parts of the 1st and 2nd Letters complained of by the plaintiff, in their ordinary and natural meanings, do not bear or give rise to the defamatory meanings pleaded in paragraph 7 of the Statement of Claim.
	41.	In short, on the pleadings, there is no arguable case that the words complained of, in their ordinary and natural meaning, bear any of the defamatory meanings relied upon by the plaintiff.  The Statement of Claim ought therefore to be struck out for disclosing no reasonable cause of action against the defendants.’

25.  It is clear when a judge exercised a discretion in a striking out application this Court will not interfere with the exercise of the discretion unless the judge had erred, for example, by adopting a wrong principle in making the decision.  It is clear that because the parties had not properly addressed Chu J as to the correct test to apply, the exercise of the discretion by her was proceeded upon on a wrong basis and hence this Court is entitled to exercise the discretion again. 

My approach

26.  The test I will adopt is whether it is plain and obvious that the relevant parts of the two letters are incapable of bearing a defamatory meaning of the plaintiff.  If it is incapable then the defendants are entitled to succeed in striking out the statement of claim, otherwise the plaintiff must be entitled to proceed with his action.

What is defamatory?

27.  A statement is defamatory if, among other things, it would tend to lower the plaintiff in the estimation of right-thinking members of society generally, or be likely to affect a person adversely in the estimation of reasonable people generally, see Gillick v. the British Broadcasting Corporation [1996] EMLR 367, the Times 20 October 1995. 

The 1st letter

28.  In my view the wording of the heading and the first paragraph of the 1^st letter arguably is capable of bearing a defamatory meaning of the plaintiff.  The words ‘Illegal Occupation of Car Park Space’ and the statement that the plaintiff was also involved with the illegal trespass and occupation of the car park space are capable of conveying the meaning relied upon by the plaintiff, namely, that he has been and still is wilfully trespassing and unlawfully occupying or using a portion of the car park area of the building.  This will fulfill the test in Gillick.  Whether the qualifying words in the first paragraph that ‘Please clarify your position with the Incorporate Owners to avoid any misunderstanding’ will remove the stink of the defamation will be a matter for the jury to decide.

29.  As Lord Bridge of Harwich in Charleston v. News Group Newspaper Limited [1995] 2 AC 65 observed at page 72 :

‘	Whether the text of a newspaper article will, in any particular case, be sufficient to neutralise the defamatory implication of a prominent headline will sometimes be a nicely balance question for the jury to decide.’

30.  Lord Nicollas of Birkenhead further observed that,

‘	Those who print defamatory headlines are playing with fire.’

31.   I would add that arguably if the 1^st letter was merely trying to seek a clarification from the plaintiff on the illegal occupation of the car park space than one would not expect the letters to be sent to the other owners of the building as well. 

The 2nd letter

32.   It was held in Winstanley v. Bampton [1943] 1 KB 319 that a mere statement that the plaintiff was indebted to the defendant could not be held to be defamatory apart from some special circumstances but where the statement also included the following namely, ‘should the plaintiff assist in refusing payment there seem to be no alternative to the very unpleasant one of taking the matter to court the statement were defamatory of the plaintiff’.

33.   In my view the heading of the 2^nd letter namely ‘3 years of water charges owed’, and the rest of the letter, namely, that the plaintiff had written nine letters to the corporation, had made unreasonable demands, and that the corporation was considering to resolve the matter by legal means are also arguably capable of suggesting a defamatory meaning of the plaintiff in that the plaintiff despite being liable to pay for the charges had wilfully and unreasonably refused to pay the water charges for three years.  Again such a meaning may affect the reputation of the plaintiff. 

Conclusion

34.   In my view the defendants had failed to show that it was plain and obvious that the two letters were incapable of bearing any defamatory meaning of the plaintiff.  In the circumstances the statement of claim should not be struck out.  I would allow the appeal and order the defendants to pay the costs of the appeal and below to the plaintiff.