CHOI LEE LEE v. MOK PUI YUK

DCCJ 1652/2023

[2023] HKDC 1633

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1652 OF 2023

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DECISION

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INTRODUCTION AND PROCEDURAL BACKGROUND

1.  This is the plaintiff’s application for judgment in default of defence (“DJ Application”) under O. 19, r. 7 of the Rules of the District Court, Cap. 336H (“RDC”).

2.  A specially indorsed Writ of Summons was issued on 26 April 2023 (the Writ of Summons, and the Statement of Claim indorsed therein, are separately and respectively referred to as the “Writ” and the “SOC” in this Decision). Briefly, in the SOC, the plaintiff sued the defendant for defamation and malicious falsehood, based on the words uttered by the latter, which was recorded and sent to a WhatsApp group.

3.  The Writ and the SOC were served on the defendant by registered post on 27 April 2023. Pursuant to O. 10, rr. 1(2) and (3) of the RDC, there would be deemed service of the Writ on the 7^th day after it was being posted, i.e., on 3 May 2023. In accordance with O. 12, r. 5, the defendant had 14 days to file her acknowledgement of service of the Writ and to give notice of her intention to defend the claim, i.e., on or before 17 May 2023. The defendant has failed to do so.

4.  Be that as it may, as the plaintiff’s claims include injunctive relief, the effect of O. 13, r. 6 kicked in, which required the plaintiff to proceed with the action as if the defendant had given her notice of intention to defend. Thus, the defendant would have another 28 days to file and serve her Defence to the SOC, i.e., on or before 14 June 2023. The defendant has also failed to do so.

5.  Inaction on the part of the defendant led to the DJ Application being taken out by way of Summons filed on 20 June 2023. The Summons was served on the defendant by ordinary post on 21 June 2023.

6.  The DJ Application first came before me on 21 September 2023 for call-over. At the hearing, the plaintiff was represented by counsel Ms Linda Cho (“Ms Cho”); the defendant, unrepresented, appeared in person.

7.  During the hearing, the defendant spoke of her desire to negotiate a settlement with the plaintiff, as she did not wish to come to court for such a trivial matter. I therefore adjourned the DJ Application to 17 November 2023, with reminders to the defendant that: (1) she should use the adjournment period to engage in negotiation or mediation with the plaintiff; or (2) if no agreement could be reached, and that she intended to defend the case, she should take steps to materialise it, including but not limited to instructing a solicitor. I had also informed the defendant that, if neither of these steps was taken, I would consider the DJ Application without further delay.

8.  The adjourned hearing on 17 November 2023 was again attended by Ms Cho and the defendant. Ms Cho reported that no settlement agreement could be reached between the parties. She elaborated that, a without prejudice letter from the plaintiff’s solicitors dated 25 September 2023 was sent to the defendant, via which the plaintiff set out some terms of settlement, in hope of initiating the negotiation process with the defendant. In return, the plaintiff’s solicitors received a holding letter dated 6 October 2023 from a law firm, under which the firm clarified that their instructions were limited to conducting settlement negotiations on behalf of the defendant with the plaintiff. The firm added that they would need to seek the defendant’s instructions on the terms of settlement mentioned in the letter from the plaintiff’s solicitors. Disappointingly the negotiation never really got off the ground, as nothing was heard from the defendant’s side since then.

9.  Aside from the aborted negotiation, I see that the defendant has taken no step to defend the case.

10.  Hence, as promised, I would consider the DJ Application without further ado.

11.  Pausing here, at the adjourned hearing, I have told the defendant that this Decision would be written in English, as it is the language used in drafting the SOC. If necessary, translation of this Decision could be arranged for her.

LEGAL PRINCIPLES

12.  I will first set out the legal principles applicable to this DJ Application.

13.  In an application for default judgment under O. 19, r. 7, the court cannot receive any evidence; it must consider whether to give judgment according to the pleadings alone. The statement of claim must show a proper case for the order the applicant seeks to obtain, and the court shall give such judgment as the plaintiff appears entitled to on his statement of claim only, and only if the pleaded facts give rise to the relief sought[1].

14.  The basis upon which a default judgment can be obtained, in circumstances where no defence is filed, is that of implied admission. The court will assume that the statement of claim has been impliedly admitted[2].

15.  Default judgment procedure is applicable to libel action[3]. But in order to succeed in a claim for defamation, a claimant has to show that the three essential elements of the tort of defamation exist. First, there must be a defamatory statement. Second, such statement must have reference to the claimant. Third, it must be published[4].

16.  For the first element, the test is that a defamatory statement must be to the claimant’s discredit; or tend to lower him in the estimation of others; or cause him to be shunned or avoided; or expose him to hatred, contempt or ridicule[5]. There are various types of statements that could constitute defamation. As per Gatley on Libel and Slander[6]:

“It is defamatory to impute to a person in any office any corrupt, dishonest or fraudulent conduct or other misconduct or inefficiency in it, or any unfitness or want of ability to discharge its duties, and this is so whether the office be public or private, or whether it be one of profit, honour or trust.”

17.  As to the third element, it is a requirement that the publication must be made to at least one person other than the claimant. The matter must be published by the defendant[7].

18.  With these in mind, I shall now turn to the plaintiff’s pleaded case.

PLAINTIFF’S CASE

The parties

19.  The plaintiff is and was at all material times a resident and registered owner of a unit in Yan Tsui Court, No. 10 Yan Tsui Street, Chai Wan, Hong Kong (the “Estate”). She was also a Chairwoman of the management committee of the incorporated owners of the Estate from late 2014 to late 2022. It was said that she also held other private and/or public offices, and participated in rendering social welfare services[8]. For these reasons, she claimed to have an impeccable reputation in Hong Kong generally, and in the Estate specifically.

20.  As to the defendant, she is and was a resident of Flat 805, 8^th Floor, Yan Wah House (Block B), of the Estate (“Flat B805”). Using her mobile phone number (+852 9170 7837), she is and was registered as a member of a WhatsApp group under the name of “守護茵翠家園關注組” (the “WhatsApp Group”). It is said that there were more than 90 members in the WhatsApp Group (the “Recipients”).

The defamatory statements, publication and republication

21.  On 27 January 2023, the defendant published to the WhatsApp Group audio messages of herself, at 7:45 pm and 8:07 pm, with each of the audio recordings lasting for 3 minutes 49 seconds and 1 minute 4 seconds respectively (the “Audio Recordings”). In these Audio Recordings, the defendant uttered the following words[9], which the plaintiff asserted to be false: -

(1)  “But this woman is really outrageous. She is so greedy that she wants to take back what was once hers. It is normal, is it not? The ‘fat meat’ is big enough, so if someone stole it, she would steal it back!”

(2)  “What I am most worried about is bid rigging and the construction projects being abandoned. Why would incorporated owners want to overthrow others and come back to rule? Everyone can see what is going on. The ‘fat meat’ was stolen, so you might as well tell the homeowners that they have to choose the company [you colluded with]. Not receiving benefits? Don’t treat us homeowners as fools!”

(3)  “I just want to say that even if we overthrow the new committee members, we cannot let Choi Lee Lee come back to rule. She just wants to come back and rule again. She has been the Chairwoman of the incorporated owners for so many years and has been excessively spending so much of our money. When I started living here, people were told we had a surplus. After they took over, they kept spending money extravagantly by using the money for repairs for small homeowners. I am not only “sceptical” of her conduct, but in fact, I am sure that Choi Lee Lee must have colluded with a contractor. Invoices were issued and money was spent and she must have received many benefits [from the contractor]. Think for yourself. This woman has got a lot of serious problems and now she wants to make a comeback. Everyone should think about it.”

22.  The statements quoted above are collectively referred to as the “Words” in this Decision.

23.  Without deleting the Audio Recordings containing the Words, nor restricting republication of the same by the Recipients, the plaintiff said that the Words were republished by the Recipients to other owners and residents of the Estate, and to some persons who are not.

Malice

24.  Apart from the falsity of the Words, the plaintiff alleged that they were published with malicious intentions. This stemmed from the water leakage problems in Flat B805 which arose in or about 2015. There was persistent leakage despite the repair and investigation that were arranged by the plaintiff in her capacity as a Chairwoman of the management committee of the Estate. The defendant accused her to have instructed a contractor whom the plaintiff had colluded with, and failed to discharge her duties as the Chairwoman. The discontent escalated when the defendant had to hire another contractor to perform the repair work out of her own pocket. Hence, via the Audio Recordings, and in particular uttering the Words therein, the defendant had the sole or dominant motive of discrediting, harming and/or hurting the plaintiff, and/or making sure that she would never be successfully elected to the management committee.

Aftermath

25.  After heeding the Audio Recordings and the Words, the plaintiff instructed her solicitors to issue a letter to the defendant demanding from her an apology. The letter dated 23 February 2023 (the “Letter”) had fallen on deaf ears.

26.  The hostility escalated during an extraordinary general meeting of the homeowners of the Estate on 26 February 2023, during which, in the presence of other participants, the defendant confronted the plaintiff with, amongst others, accusations that the plaintiff had colluded with contractors in the repair works performed in the Estate. The defendant also took the opportunity to declare that: (1) she was unafraid of the Letter; and (2) she would reveal to the whole world the bad things that the plaintiff had done.

Reliefs sought

27.  For the above reasons, the plaintiff claims:

(1)  damages for defamation and/or malicious falsehood, including aggravated, exemplary and/or damages for republications, to be assessed;

(2)  an injunction restraining the defendant (whether by herself or via any agent) from however publishing, procuring and/or participating in the publication of the Words or similar words defamatory of or containing false allegations concerning the plaintiff;

(3)  an order compelling the defendant to permanently remove and cause to be removed the Words and all similar words defamatory of and/or containing false allegations concerning the plaintiff from all platforms, websites, computer programmes, devices, and Smartphone Apps within her control; and

(4)  an order compelling the defendant to apologise to the plaintiff, and/or to publish retraction of the Words, and/or to publish corrective statements, in such words and in such manners as the court sees fit.

DISCUSSIONS

28.  As the defendant has failed to file her Defence to the SOC, the plaintiff is entitled to make the DJ Application under O. 19, r. 7 of the RDC. The defendant is regarded to have impliedly admitted the facts and matters pleaded in the SOC.

29.  Applying the principles on defamation, I accept that the Words are defamatory, imputing to the plaintiff, as the former Chairwoman of the management committee, corrupt, dishonest or fraudulent conduct, or other misconduct or inefficiency in it, or unfitness or want of ability to discharge her duties. They have the effect of discrediting the plaintiff, or tend to lower her in the estimation of reasonable persons of ordinary intelligence.

30.  The third part of the Words directly referred to the plaintiff by her name. Even though there was no express mentioning of the plaintiff’s name in the first and second parts of the Words, I am satisfied that they could be understood as referring to the plaintiff basing on the pleaded facts that the plaintiff was the former Chairwoman of the management committee of the incorporated owners of the Estate from 2014 to 2022. Such extrinsic facts should also form part of the general knowledge of the Recipients, as homeowners and/or residents of the Estate.

31.  Publication of the Words by the defendant have been pleaded, with the mode of publication, i.e., via the WhatsApp Group, specified. The Recipients are substantial: there were more than 90 members within the WhatsApp Group. The scope of further recipients outside the WhatsApp Group via republication could not be quantified at the time of the SOC, but certain further recipients have been identified in the SOC[10].

32.  In light of the above, I find the pleaded facts to have satisfied the three elements for establishing a defamation claim. The Audio Recordings with the Words are permanently posted on the WhatsApp Group, and could be replayed and/or republished at will by the Recipients, so much so that they could not be regarded to be in a transient form. In my view, this is therefore a case of libel.

33.  Turning to the injunction sought by the plaintiff, I agree with Ms Cho that ample opportunities had been given to the defendant to apologise or to remove the Audio Recordings from the WhatsApp Group, but she had refused to do so. In fact, as per the SOC, the defendant had blatantly refused to back down and even warned of further revelation of scandals involving the plaintiff, despite receiving the Letter. Hence, unless restrained by this court, the defendant is likely to continue publishing and/or republishing the Words in the WhatsApp Group, and/or to continue issuing defamatory statements against the plaintiff. And without an order from the court to compel the defendant to delete the Words from the WhatsApp Group, they could continue to exist, and be played and possibly be republished by the Recipients. These are reasons for the court to grant the permanent injunction sought by the plaintiff[11].

34.  Lastly, although she has acknowledged in her submissions that it is unprecedented in Hong Kong and relatively unusual, Ms Cho is instructed to pursue an apology order against the defendant. In support, Ms Cho cited the decision of the South African Court in the case of Dikoko v Mokhatla[12], and the United Kingdom Upper Tribunal decision in the case of Proprietor of Ashdown House School v (1) JKL (2) MNP[13].

35.  In Hong Kong, HH Judge Yee had in the recent case of Chow Wing Kai v Liang Jing[14] considered on the court’s jurisdiction to grant an apology order, and when such discretion should be exercised. In a nutshell, the learned judge held that the District Court does have jurisdiction to make such an order under section 52B of the District Court Ordinance, Cap. 336. However, in the 2 cases that he had considered[15], they all pointed to the exercise of such discretion, against an unwilling defendant, calls for the utmost restraint and with great circumspection, even in the rare cases where the circumstances are exceptional.

36.  Coming back to the present case, although the defendant said at the hearing that she was willing to apologise to the plaintiff, it was used to underpin her petition for a reduction of the amount of damages to be sought against her. And her offer of apology was then followed up with the allegation that she was being set up and/or used by possibly some other residents or homeowners of the Estate, whom shared the same hatred towards the plaintiff. And from what she continued to say in court, I could see that the defendant was still bitter against the plaintiff. Hence, despite her alleged willingness to apologise, I am not convinced that she is indeed willing to accept an apology order being imposed on her.

37.  In addition, I do not see that there is any exceptional circumstance which warranted the court to consider exercising such discretion. In spite of Ms Cho’s arguments, I am not ready to accept the hostility of defendant, and the lack of backing down from her, which is not a rarity in defamation cases, constituted circumstances so special and rare that justify making of an apology order against her will.

CONCLUSION

38.  For the above reasons, I am satisfied that judgment should be entered against the defendant. And I order that: -

(1)  Judgment be entered against the defendant.

(2)  Damages for defamation and/or malicious falsehood, including aggravated, exemplary and/or republications, if any, to be assessed.

(3)  The defendant be restrained (whether by herself or via any agent) from howsoever publishing, procuring and/or participating in the publication of the Words or similar words defamatory of or containing false allegations concerning the plaintiff.

(4)  The defendant do permanently remove and cause to be removed the Words and all similar words defamatory of and/or containing false allegations concerning the plaintiff from all platforms, websites, computer programmes, devices, and Smartphone Apps within the defendant’s control.

COSTS

39.  In her submissions, Ms Cho seeks on behalf of the plaintiff costs against the defendant on indemnity basis. The grounds for such request are: (1) the defendant’s intentional ignorance of these proceedings until she was compelled to appear in court for the DJ Application; (2) failure to file her Defence against the plaintiff’s claim; and (3) the lack of action after the call-over hearing on 21 September 2023. I do not agree that grounds (1) and (2), which are the foundations for default judgments to be sought and granted, justify the making of such costs order. As to ground (3), it is a feature commonly seen in respect of unrepresented litigants. It is not a conduct so outrageous that should give rise to a reason that the defendant should be penalised with a higher scale of costs.

40.  I therefore make an order nisi that the defendant do pay on party and party basis the plaintiff’s costs of this action on liability, including the costs of the DJ Application and all costs previously reserved, to be taxed if not agreed, with certificate for counsel. Such order will become absolute in the absence of any application to vary the same within 14 days from the date of handing down of this Decision.

41.  I thank Ms Cho for her assistance.