YU SAU NING HOMER v. WONG WAN KEUNG AND OTHERS

DCCJ 313/2016

[2020] HKDC 527

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 313 OF 2016

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D E C I S I O N

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1.  On 17 March 2020, I handed down the judgment in this action. I held that the 1^st to 4^th defendants are liable for libel in respect of the first words and the 2^nd defendant the second words. I awarded general damages in the sum of $300,000 and aggravated damages in the sum of $200,000 to the plaintiff in respect of each of the words. By summons dated 9 April 2020, the 2^nd and 3^rd defendants apply for leave to appeal against the judgment. The intended appeal is confined to the issue of quantum.

2.  Following the guidance laid down by the Court of Appeal in Tsang Wing Kwai v Tsang Wing Fai [2018] 5 HKLRD 350, [2018] HKCA 759 at para 24, I gave directions for the lodging of written submissions. Having read the submissions, I am satisfied that an oral hearing is not necessary and the summons is suitable for disposal on paper only. 

3.  I shall adopt here the defined terms in the judgment. 

4.  Mr Kenneth KY Lam, who represents the 2^nd and 3^rd defendants in this application, puts forward six proposed grounds of appeal.  He did not appear for the defendants at the trial. 

Legal principles

5.  The principles governing the threshold for granting leave to appeal are not in dispute.  The applicant needs to show that the appeal has a “reasonable prospect of success” or there is some other reason in the interests of justice why the appeal should be heard: section 63A(2) of the District Court Ordinance, Cap 336.  A “reasonable prospect of success” means an appeal with prospects that are more than “fanciful”, without having to be “probable”: SMSE v KL [2009] 4 HKLRD 125 at para 17.

6.  In this application, the 2^nd and 3^rd defendants rely on the “reasonable prospect of success” limb only.

The first ground

7.  Under the first ground, the 2^nd and 3^rd defendants contend that I erred in law by not giving reasons or giving insufficient reasons on issues of quantum.

8.  In his submissions, Mr Lam refers to paras 325 and 326 of the judgment and says that this is all I had said on the issue of general damages.  I had simply referred to the three case names in para 325, stated that I had considered them, and then jumped to the conclusion of $300,000 for general damages.  My only comment was that the facts in those cases “are comparable to the present case”.  Mr Lam complains that there was no analysis in what way the facts were comparable, or whether adjustments had been made and if so why.  In the absence of such analysis, the defendants would not know how I had arrived at the sum of $300,000.

9.  Similarly, Mr Lam refers to paras 328 and 329 and says that this is all I had said on the issue of aggravated damages.   I had given no reason why I had arrived at the sum of $200,000.  He asks rhetorically – why was it $200,000 instead of, say, $100,000, or any other figure?

10.  Mr Lam sets out the general principles on the duty to give reasons.  Mr Lawrence Ng, who appears with Mr Victor Lui for the plaintiff, do not dispute them.   

11.  A trial judge has a duty to give adequate reasons for his rulings.  What amount to adequate reasons would depend on the circumstances of each case.  The duty to give reasons is a function of due process, and therefore of justice. Its rationale has two principal aspects.  First, fairness requires that the parties, especially the losing party, should be left in no doubt why they have won or lost.  Second, a requirement to give reasons concentrates the mind and if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.  It follows from the first aspect that want of reasons may be a good self-standing ground of appeal: Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279 at 290J-291A; Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 at 381G-H.

12.  In the context of defamation, in Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd (2012) 5 HKCFAR 299, Chan PJ remarked to the effect that a trial judge should indicate how relevant the authorities on which he relies are and whether they are comparable to or different from the case before the court.  He should not simply refer to awards of damages in previous cases (at para 7).

13.  Applying the above general principles, the 2^nd and 3^rd defendants say that it is at least reasonably arguable that I failed to give reasons or adequate reasons for my awards of general and aggravated damages and that such failure gives rise to a standalone ground of appeal. 

14.  I do not agree that there was no or no adequate reason given in the judgment for the awards of damages.  I make the following four points.

15.  First, contrary to the defendants’ submission, I in fact set out my reasons for the award of general damages in paras 323 to 324, in addition to what I said in paras 325 and 326 (the two paragraphs which Mr Lam chooses to highlight).   More specifically, in para 324, I referred to the material factors when assessing quantum.  They included the seriousness of the defamation in terms of both the meanings and the language used, the personal impact of the libelous words on the plaintiff and the extent of the publication. 

16.  Similarly, in respect of the award of aggravated damages, I in fact set out my reasons in para 327, in addition to what I said in paras 328 and 329 (the two paragraphs which Mr Lam chooses to highlight).

17.  Second, while the reasons were not lengthy, they addressed the substantial issues before me and were adequate.

18.  The adequacy of reasons must depend on the circumstances of each case. The relevant circumstances here were that the plaintiff had put forward detailed written submissions on the issue of quantum in both their opening and closing submissions.  Annexed to his opening submissions was a schedule of cases which facts, the plaintiff said, were comparable to the present case. The schedule set out in summary form the names of the cases, the salient facts concerning quantum and the amounts of the awards.  Counsel for the defendants (not Mr Lam) did not say anything about quantum at all in her written submissions. 

19.  It was therefore not a case where there were competing arguments before me on quantum.    Had that been the case, I would have had to analyse at some length the rival submissions, and give explanation, as applicable, why I preferred one submission to the other.  But that was not the case here. 

20.  In this case, I considered the plaintiff’s submissions, which were the only submissions before me on the issue of quantum.  They were laid out in a clear, logical and comprehensive manner.  I agreed with them.  In the judgment, I reminded myself of the applicable legal principles and set out my thinking in paras 323 to 326 of the judgment in respect of general damages and paras 327 to 329 in respect of aggravated damages.   

21.  It is generally recognised that the reasons given for a ruling may require elaboration or they may be brief.  The crux of the matter is whether the reasons are defective in substance and if so they would be considered inadequate: Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority at 291F.

22.  In the circumstances of this case, I consider that the reasons were adequate as they addressed the pertinent matters which required consideration on the issue of quantum.

23.  Third, it is not a case where the losing party would have no idea why the awards in those sums were made.

24.  I did not, and do not, construe the absence of any submissions from the defendants at trial as acceptance of the plaintiff’s submissions.  In this regard, I do not agree with Mr Ng’s submission to that effect.  That said, however, the trial counsel for the defendants must at least be taken to have read the plaintiff’s submissions made during the trial.  Out of the five authorities cited by the plaintiff’s counsel at trial, I highlighted three of them in the judgment as being comparable to the present case.  The salient facts of those cases had been summarised by counsel in writing.  Furthermore, it was only after I set out the material factors in para 324 that I proceeded to make the comment in para 325 that those three cases are comparable.  In other words, the comment was not made in a vacuum and was not a mere or bare statement made without any supporting material.

25.  In the circumstances, it is not open to the 2^nd and 3^rd defendants to now say that they have no idea why the three cases are comparable or that they have no means to make any counter-argument why the reliance placed by me on them was wrong.

26.  Lastly, Mr Lam complains that I failed to explain how the actual figure was arrived at.  Why, he asks, were the aggravated damages assessed at $200,000 instead of, say, $100,000, or any other figure?  He reiterates the point in his reply submissions.  He says that a piece of evidence which may support an award of $200,000 may also support an award of $150,000 or $80,000.  So why, he asks, was it $200,000 instead of $150,000 or $80,000?  The complaint is that I never explained and the defendants are at a loss as to why they had to pay this sum for each of the defamatory words.

27.  There is no exact science in the assessment of damages in defamation cases.  There is bound to be a range of reasonable choices which are open to a trial judge to pick, and the range can be a wide one: Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd at para 4.  In my view, the questions posed by Mr Lam are not the proper questions to ask.  The question is not why a specific figure is picked.  The proper question to ask is whether the actual figure picked falls within the range of reasonable choices.  In my view, Mr Lam has applied the wrong approach.

28.  For the above reasons, the proposed ground has no reasonable prospect of success.

The second ground

29.  Under this ground, the 2^nd and 3^rd defendants submit that I failed to take into account or give proper weight to the limited extent of the publication in the assessment of general damages.

30.  I disagree with the submission.  In para 324(d), as one of the material factors affecting quantum, I expressly referred to the fact that the first and second letters were published to all the owners of the Building and that there were over 250 units in the Building. 

31.  In his written submissions, he points out that in Chan Iu Seng v Ko Choi Hin HCA 2901 and 2935/2004, 28 January 2010, the publication was to 6,000 people and that is “24 times more than the 250 people in our present case”.  If I had taken into account the 24 times difference in the extent of the publication, I would have awarded general damages of no more than $12,500, which is arrived at by dividing the actual award of $300,000, which I made, by 24. 

32.  I do not agree with this approach.  I agree with Mr Ng’s submission that the adoption of such a mechanical comparison is wrong.  There is no exact science when assessing general damages in defamation.  The court does not apply such a rigid approach in the exercise.  I also do not agree with Mr Lam’s characterisation that the publication is “limited”.   In any event, while the extent of publication is clearly a relevant factor in the assessment exercise, there are other factors at play, such as the gravity of the defamatory words. One does not simplistically single out one factor, apply an arithmetic formula and arrive at a “correct” result.  The extent of publication was identified in the judgment and taken into account in the assessment.

33.  The proposed ground of appeal has no reasonable prospect of success.

The third ground

34.  Under this ground, the 2^nd and 3^rd defendants complain that I erred in law by in effect ruling that the defendants were running a defence of justification during trial or should have apologised.  By relying on these two matters when making the award of aggravated damages, I erred in law as the two reasons were legally wrong, insufficient and/or illogical.

35.  The general principles on how these two matters may be relevant to the issue of aggravated damages have been explained by the Court of Final Appeal. 

36.  It is wrong in principle to award aggravated damages to a plaintiff in a defamation case, solely because the defendant has decided in good faith to raise a defence of justification, which is then run in a reasonable way.  An unsuccessful plea of justification is not per se a ground for increasing damages.  It can only be so if the plea is completely unsupportable in the circumstances.  So far as the absence of an apology is concerned when justification is relied upon, similarly, it would not have the effect of increasing damages where the defendant has decided in good faith to raise a defence of justification, which is then run in a reasonable way: Blakeney-Williams v Cathay Pacific Airways Ltd (2012) 15 HKCFAR 261 at paras 105-106.

37.  Here, Mr Lam submits that all that the defendants had done was to deny liability, bring the matter to trial and plead but then abandon before trial the defence of justification.  Meanwhile they refused to apologise.  These features of the defendants’ case did not go beyond the ordinary features in an ordinary trial.  By drawing upon these features to make an award of aggravated damages, Mr Lam submits that I had gone directly contrary to the dicta of the Court of Final Appeal.

38.  The above picture painted by Mr Lam on how the defendants had conducted their case is not complete.  What he omits to point out in his submissions is material. 

39.  In paras 274 to 276 of the judgment, I found as facts that the various allegations made in the first and second letters were untrue, and that the defendants did not honestly believe in the allegations in the first letter or were reckless as to their truth at the time when it was published.  Further, I found as facts that the 2^nd defendant did not honestly believe in the allegations in the second letter or was reckless as to their truth when it was issued.  These were the mental states of the defendants at the time of publication.  Against these factual findings, in paras 311 and 312, I further held that the defendants put forward the defence of justification recklessly or with knowledge that it would be unsustainable.  In para 328, I recorded the objective fact that the defendants persisted in contesting the claim up to the very end and maintaining the defence of justification up until the lodging of their opening submissions. 

40.  In light of all these findings, it plainly cannot be said that the defendants had raised the defence of justification in good faith and run it in a reasonable manner.  In fact, I found that the opposite was true.  On the authorities, I was entitled to rely on such conduct of the defendants to make an award of aggravated damages.

41.  The proposed ground of appeal has no reasonable prospect of success.

The fourth ground

42.  Under this ground, the 2^nd and 3^rd defendants argue that I erred in law by awarding aggravated damages without sufficient or indeed any basis.  In gist, Mr Lam submits that there was no factual finding made by me that the defendants’ post-publication behavior did in fact aggravate the harm suffered by the plaintiff, or if so to what extent.  It is a matter of evidence.  And without any evidence showing any increased injury to feelings by reason of post-publication conduct, the court is in no position to make an award of aggravated damages.  There is no room for any presumption that a plaintiff has suffered aggravated mental pain and suffering in any particular case: Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd at paras 126, 128 and 129.

43.  Here, Mr Lam submits that I seem to have proceeded on the assumption that if there was a finding that the original libel was malicious, an award of aggravated damages should follow.  That would be completely wrong in law.

44.  I do not agree with Mr Lam’s submission, as I find it to be factually incorrect and inaccurate.  I expressly held that the defendants were putting forward the defence of justification recklessly or with knowledge that it would be unsustainable.  See para 39 above.  It is therefore incorrect for Mr Lam to say that I had made no factual finding concerning the defendants’ post-publication behavior.  The award of aggravated damages is justified on the facts and the evidence.

45.  The proposed ground of appeal has no reasonable prospect of success.

The fifth ground

46.  Under this ground, the 2^nd and 3^rd defendants argue that I erred in law by awarding damages which were plainly wrong in principle and/or manifestly excessive.

47.  Mr Lam contends that the cumulative effect of the above four proposed grounds is that the quantum of damages awarded, considered in their totality, is manifestly excessive and that the Court of Appeal is entitled to substitute its own awards in place of mine: Oriental Daily Publisher Ltd v Ming Pao at para 42.

48.  Given that I have concluded that none of the above proposed grounds have any reasonable prospect of success, it must follow that this proposed ground would not be reasonably arguable.

The sixth ground

49.  Under this ground, the 2^nd and 3^rd defendants contend that I erred in law by awarding pre-judgment interest at judgment rate without sufficient or indeed any justification.

50.  As is clear from the draft notice of appeal annexed to the summons and the first set of written submissions lodged in support of the summons, the 2^nd and 3^rd defendants’ contention is targeted at the proper rate to be awarded for the pre-judgment period.  The complaint is not about whether pre-judgment interest should be awarded at all in the first place. 

51.  I say so because in his first set of written submissions, Mr Lam says that I “must be wrong in awarding pre-judgment interest at judgment rate, instead of 1% above HSBC Prime Rate” (emphasis added).  He refers to Lam V-P’s ruling in Chow How Yeen Margaret [2018] 3 HKLRD 163 at paras 44-59 and submits that pre-judgment interest rates should always be at 1% above HSBC Prime Rate, absent any special reasons.  He further says, “[o]rdering pre-judgment interests at a different rate is an error in principle which the Court of Appeal will correct” (emphasis added).

52.  Having seen Mr Lam’s submissions, the plaintiff’s solicitors wrote to the 2^nd and 3^rd defendants’ solicitors proposing that the judgment (which is yet to be sealed) be varied so that pre-judgment interest should accrue at 1% above HSBC Prime Rate.  The plaintiff’s solicitors pointed out that parties had made no submissions on interest during the trial and that the plaintiff made the proposal in order to save time and costs, considering the small difference between the two different rates.  

53.  The proposal was quickly rejected by the 2^nd and 3^rd defendants’ solicitors on the following day.  In their letter and in the reply submissions subsequently lodged by counsel, the 2^nd and 3^rd defendants argue that since I had already taken everything up to the time of judgment into account when awarding damages, there should be no pre-judgment interest at all: Law Chi Ching v Apple Daily Ltd [2015] 5 HKLRD 448; McPhilemy v Times Newspaper Ltd (No 2) [2002] 1 WLR 934.  Counsel further argues that the parties should not agree to the plaintiff’s proposal since that is plainly wrong in law. 

54.  In my view, what is clear from the above sequence of events is this.  The 2^nd and 3^rd defendants originally sought leave to appeal under this ground by saying that I should have awarded pre-judgment interest at a different rate from what I had actually ordered.  The plaintiff then put forward a pragmatic and reasonable proposal, effectively agreeing to what the defendants had proposed.  That proposal, if accepted, would have the effect of disposing of this ground in its entirety.  Then the 2^nd and 3^rd defendants reversed course and contended, for the first time, that no pre-judgment interest should be awarded at all.  That is a wholly different position from what they originally asked for.  But they did not even try to give any reason for the change of position. 

55.  In the circumstances, the 2^nd and 3^rd defendants should be bound to their proposed ground of appeal, as originally set out in the draft notice annexed to the summons and elaborated in their first set of submissions.  In light of the plaintiff’s proposal, the proposed ground becomes academic and no leave should be given to the defendants to pursue this ground.

Conclusion

56.  None of the proposed grounds of appeal enjoy any reasonable prospect of success.  There being no other reason why the appeal should be heard, I dismiss the 2^nd and 3^rd defendants’ application seeking leave to appeal.  I also order that the plaintiff do have costs of the application, with certificate for one counsel, summarily assessed in the sum of $115,000, payable by the 2^nd and 3^rd defendants within 14 days from the handing down of this decision.