TSUI SANG HUNG SAMMY v. LUI HOK NANG

DCCJ 1985/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1985 OF 2012

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J U D G M E N T

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Background

1.  This is a defamation case.

2.  The plaintiff and the defendant are political rivals.  The plaintiff belongs to the Democratic Party and has been serving as a member of Kwai Tsing District Council since 1994.  The defendant belongs to the Democratic Alliance for the Betterment and Progress of Hong Kong.

3.  A general District Council Election was held on 6 November 2011.  The plaintiff and the defendant were candidates in the Tai Pak Tin Constituency of Kwai Tsing District.  The plaintiff was re-elected with 1650 votes and the defendant lost the election with only 1488 votes.  The plaintiff won by a margin of 162 votes.

4.  On 3 December 2011, Oriental Daily published a report with the heading 『種票愈揭愈多  一屋19巴人  泛民當選者  徐生雄被指賄選』(page 52 of Bundle) (“the OD Clipping”), and the first 3 paragraphs of which are copied as follows :

『區議會選舉疑似種票個案愈揭愈多，連泛民亦被質疑種票，並爆出「案中案」涉嫌賄選。葵青大白田選區一個僅四百來呎的舊式洋樓單位，竟同登記了十九名巴基斯坦裔選民。在該區落選的民建聯候選人呂學能，質疑該單位住客為勝出的民主黨候選人徐生雄的支持者，並且有街坊目睹有人向區內巴裔人士派傳單並包車接載他們往票站投票，質疑徐生雄種票及賄選。徐生雄承認有巴裔支持，但強調不認識單位內人士，反斥對方輸打贏要。

在大白田選區以一百六十二票之差落敗的呂學能表示，青山公路葵涌段偉賢樓一個僅約四百呎的中層單位，竟登記了十九名巴裔選民，質疑「蝸居都住唔到咁多人」。他又說，有街坊在投票日目睹有專車接載約三十名巴裔選民到票站投票，該批選民均手持巴基斯坦語傳單，傳單上印有徐生雄照片及呼籲投票給徐的字句。

呂學能曾翻查選舉事務處資料，發現徐生雄沒有申報印製該批傳單，遂向該處投訴。徐生雄及後才重新申報該批傳單，聲稱只印了三十二張。呂學能再質疑﹕「邊有人印三十二張咁零丁?」認為有賄選之嫌。』

(The underlined part is the alleged defamatory words, hereinafter referred to as the 1^st Words (a) and (b) respectively.)

5.  On 10 December 2011, Wen Wei Po published a report with the heading『民主黨徐生雄被質疑種票』(page 53 of Bundle) (“the WWP Clipping”), and the 1^st and 2^nd paragraph of the content are copied as follows :

『呂學能昨日表示，他早前留意到香港文匯報揭發大白田區有1個單位出現 一屋19 人16姓」的巴基斯坦裔選民登記的懷疑「種票」個案，其後自己更接獲街坊投訴，指徐生雄於上月底，即區選後與多群人士舉行大食會，包括一群巴基斯坦裔人士，反映徐生雄與區內的巴基斯坦裔人士關係相當密切，並質疑其中或可能有「種票」的問題。

他續說，他早前發現徐生雄忽然向選管會提交200份以巴基斯坦文寫成的選舉宣傳單張，但翻查申報紀錄並沒有發現，在有合理懷疑的情況下，他決定到廉署舉報有關情況， 要求當局調查，並會於稍後就此向提出選舉呈請。』 

(The underlined part is the alleged defamatory words, hereinafter referred to as the 2^nd Words)

6.  The English translation of the alleged defamatory words stated in the Amended Statement of Claim are as follows :

The 1^st Words (a) (at page 8-9 of Bundle)

“It is queried that the residents of the subject unit are the supporters of the candidate of the Democratic party, namely, Tsui Sang Hung, who has gained victory. Further, neighbours saw that someone distributed brochures to Pakistan residents and provided transportation to them for casting votes in polling station. It is queried that Tsui Sang Hung has committed vote-rigging and bribery in election.”

The 1^st Words (b) (at page 9 of Bundle)

“Tsui Sang Hung had subsequently filed with the said publicity leaflet afresh, alleged that only 32 copies were made. Lui Hok Nang suspected again : ‘who would only make 32 copies, it is quite odd’ casted doubt on bribery in election.”

The 2^nd Words (at page 9 of Bundle)

“It was mentioned at the end of last month, Tsui Sang Hung had big feast with different groups of people including Pakistan residents after election. It reflected that Tsui Sang Hung was in close relationship with Pakistan residents in the district. It is also queried that it includes or involves the question of vote-rigging.”

7.  The English translation quoted above is not challenged by the defendant nor had the defendant suggested another version of the translation.  I shall adopt the English translation of the words quoted above in this judgment.  The defamatory words are collectively called “the Words” in this judgment.

8.  It is not denied by the defendant that he did talk to the reporters of Oriental Daily and Wen Wei Po before the publication of the relevant newspaper reports.

9.  The plaintiff, through his solicitors, issued the letters dated 16 January 2012 and 13 February 2012 to the Oriental Daily, the Wen Wei Po and the defendant respectively (page 54-63 of Bundle) demanding for “an apology to our client admitting that the aforesaid statements made by you and the matters referred to therein were false and further undertake not to repeat them and also publish a news for clarification”.  However, the defendant failed to give any reply.  In answer to the letter dated 13 February 2012, Wen Wei Po had rendered a written reply (page 239 and 241-247 of Bundle).

The Claim

10.  The plaintiff takes out this action against the defendant in June 2012 based on 2 distinct causes of action, one of slander and one of libel.  Regarding slander, it is based on the oral publication of the Words by the defendant to the reporters of Oriental Daily and Wen Wei Po.  Regarding libel, it is based on the republication of the defendant’s defamatory statements on the 2 newspapers, which, according to the plaintiff, were authorised or intended by the defendant to be published.

11.  The plaintiff alleged that the Words are defamatory in the sense that in their natural and ordinary meaning, they purported to suggest that :

(a) The plaintiff had some wrongful association with those Pakistan residents with a view to gaining victory in the election;

(b) The number of copies of the said publicity leaflet was under-estimated by the plaintiff and therefore such act and conduct as alleged by the defendant amounted to bribery in election; and

(c) The plaintiff is guilty of and/or committed the offences of vote-rigging and bribery in election. 

12.  The plaintiff claims against the defendant for damages, including aggravated damages, an injunction restraining the defendant from further publishing the Words, interests and costs of this action.

The Defence

13.  In the Re-Amended Defence, the defendant raised the following defences :

(a) He never said the words “someone … provided transportation to them for casting votes in polling station (『有人 … 接載巴裔人士往票站投票』) in the 1^st Words (a) or 有街坊在投票日目睹有專車接載約三十名巴裔選民到票站投票 in the 2^nd paragraph of the Oriental Daily report；

(b) He speaks to the Oriental Daily reporter in a private chat and did not expect the same to be reported to the public and never authorised the reporter to write 質疑徐生雄賄選 and/or 認為有賄選之嫌;

(c) He only speaks about his queries/suspicion (質疑), not an accusation and there is nothing defamatory in nature published by the defendant;

(d) His suspicion is justified and the comments made are fair and/or honest;

(e) It is reasonable for the defendant to expect the reporters to investigate the matter further and give a fair/honest/true report on the matters;

(f) He was only commenting on what was already known to the public not due to himself ; and

(g) The plaintiff had been given a fair chance to explain the matter.

Agreed Issue for Trial

14.  Pursuant to the order of the Master dated 10 April 2014, an agreed statement of issues in dispute was filed on 11 July 2014.  The agreed core issues to be determined at trial are as follows :

(a) Whether the defendant has spoken the alleged Words;

(b) Whether the defendant has authorised or caused to be published the Words;

(c) Whether the Words are defamatory (ie capable of being defamation);

(d) If the answer to (c) above is in the affirmative, whether the defendant can avail himself of any defence by way of justification or fair comments.  In determining whether the defendant has a defence, what standard (eg that of a normal person or a professional) should be applied to the defendant;

(e) Whether the Words amount to defamation, ie slander and/or libel;

(f) Whether an injunction should be granted;

(g) Whether the plaintiff has suffered any damages, and if so, whether the defendant is liable for any damages, including aggravated damages, for slander and libel suffered by the plaintiff because of the Words, and if so, how much.

Whether the Defendant had spoken the Words

15.  As rightly pointed out by Mr Tang for the plaintiff, the plaintiff was not involved in the conversation between the defendant and the reporters.  The plaintiff mainly relied on the following sources of information to show what had been said by the defendant to the 2 reporters :

(a) The OD Clipping;

(b) The WWP Clipping;

(c) A telephone conversation between the plaintiff and a female reporter during which the plaintiff was informed that the defendant accused him of vote-rigging and bribery and asked if he had arranged transport for and had a feast with the Pakistan residents;

(d) A telephone conversation between a Mr Wong of Oriental Daily (“Wong”) and the plaintiff in early February 2012 as a result of the letters sent from the plaintiff’s solicitors and Wong said that the reporter was only reporting what was said by the defendant at all material time.

16.  The defendant contended that the Words complained of are something materially different from what the defendant said to the 2 reporters.  Mr Chu for the defendant submitted that the Words reported did not reflect truly what the defendant had said, in particular the discussion nature of the conversation.  The defendant relied upon the followings in support :

(a) As can be seen from the Amended Defence, the defendant denied ever spoken the words “someone … provided transportation to them for casting votes in polling station (『有人 … 接載巴裔人士往票站投票』) in the 1^st Word (a).  But in his evidence, the defendant said that the whole sentence about the distribution of publicity leaflets and the provision of transport to the Pakistan residents was not said by him and he had never mentioned the same to the reporter.  The defendant asserted that as conceded by the plaintiff, there was no need for the Pakistan residents to take coaches from their residence to the polling station, so the defendant would not have said the same and this part of conversation must be untrue (“Leaflets and Transportation Issue”);

(b) The defendant in his evidence said that he had repeatedly mentioned in the conversation with the reporter of Oriental Daily that he had no (or insufficient) evidence to support his suspicion but such had not been reflected in the OD Clipping (“No Evidence Issue”); 

(c) It is also the evidence of the defendant that he only brought up the problems and entered into a discussion with the reporters in a private chat and there was no conclusion drawn.  Yet, in the 2 reports, the discussion nature of the conversation between the defendant and the reporters had never been reflected (“Discussion Nature Issue”);

(d) The telephone conversation by Wong of Oriental Daily was being uttered after the Oriental Daily was aware of the potential legal action against it by the plaintiff.  Wong may have taken a defensive stance, hence such a reply.  In any event, since Wong was not called as a witness in this case, this piece of hearsay evidence must be scrutinized with utmost caution and should not be accepted lightly (“Conversation with Wong”);

(e) In the reply from Wen Wei Po, it is never said that it had reported truly and fully what the defendant said to the reporter.  Instead when it mentioned the source of the report, the defendant was not being named and it was said that more than 1 person made complaints to the ICAC and the Registration and Election Office (“REO”). It could be understood that the WWP Clipping was not based solely on what the defendant said to its reporter (“WWP Reply Issue”).

Leaflets and Transportation

17.  The defendant contended that since the Pakistan residents are living close to the polling station, it would be more convenient for them to walk to the polling station instead of taking a coach.  Hence, he would not have said the disputed words in question.  He also denied ever said the words about the distribution of leaflets when giving evidence.

18.  Having considered the evidence, I do not accept the evidence of the defendant.  The evidence of the defendant in the witness box is inconsistent with his pleadings and his witness statements as far as what was not being said by him to the Oriental Daily reporter is concerned.  There is no explanation as to such an inconsistency.  I found the defendant’s case in this regard is not trustworthy.

19.  And it is also illogical to accept the explanation by the defendant that since what was said cannot stand, this must mean that the defendant would not have said so.  When one read the first 2 paragraphs of the OD Clipping, it is beyond doubt that it is the defendant who raised the query and apart from the query, also said about the arrangement of transportation for the Pakistan residents.  Given the nature of the complaints about the leaflets and the transportation arrangement are so specific, it is beyond belief that the Oriental Daily reporter would have made up the same.

20.  It is the findings of this court that the disputed part in 1^st Words (a) is uttered by the defendant.

No Evidence

21.  The defendant’s evidence is that he was well aware of the fact that he had no evidence in support of the allegation of bribery or vote-rigging and he had told the reporter of the Oriental Daily so, but this had not been reported in the OD Clipping, hence contended that the report is not accurate.  When asked what he had said in fact to the reporter, the evidence of the defendant is that “That’s merely what I’ve heard.  I don’t have any proof in substance, for example, the feast, the small gifts” (『我都係聽返嚟嘅啫，無實質證據，譬如大食會呀、小禮物呀』).

22.  I do not accept what the defendant said in this regard.  Had the defendant told the reporter of the fact that he had no evidence in support, it would be absurd to find nothing in the OD Clipping since without so doing, the reporter is running a risk of being alleged of mis-reporting by the defendant.  Being a renowned newspaper in Hong Kong, it would be unreasonable for the Oriental Daily reporter to miss out such information. 

23.  And as can be seen from the OD Clipping, the defendant only mentioned about someone witnessed the leaflets distribution and transportation arrangement incident and there is nothing about the feast and the small gift being reported.  Had the defendant mentioned about the feast and the small gifts, it would be beyond belief that the reporter did not report the same in the OD Clipping.  If the defendant had not mentioned about the feast and small gifts, why would he mention about he had no evidence about these allegations.  The defendant’s evidence is incredible.

24.  I found it more likely than not that the defendant had not mentioned about he had no or insufficient evidence in support of his allegation to the reporter of Oriental Daily. 

Discussion Nature

25.  The defendant maintained that for both newspaper reports, he was only having a discussion with the respective reporter.  After he mentioned the factual allegations about the treat of a feast and small gifts to the Pakistan residents, the reporter asked him if this amounts to bribery.  The defendant just replied by asking the same question “Does this behaviour contain elements of bribery?  Does it contain elements of vote-rigging?” “In your opinion, can this behaviour be counted as bribery?” (『呢個行為係咪有賄選成份? 係咪有種票成份?』『你話咁算唔算賄選行為呢?』) and no conclusion had been drawn from their discussion.

26.  I found it absurd for the defendant to say that he is only having a discussion with the reporters.  It is the defendant’s own evidence that he was approached by the Oriental Daily reporter to arrange for a meeting in order to ask him about the 1-house-19-votes incident.  If it was just a discussion or a private chat, why would the reporter approach the defendant for arrangement and specifically mentioned about the 1-house-19-votes incident will be asked in the first place?  And the defendant informed the Wen Wei Po reporter about his intended action of lodging a complaint to the ICAC one day before his action and then the reporter showed up outside ICAC on such alert.  If the defendant is only having a discussion or a private chat with the reporter, why the need to alert the reporter in advance.

27.  The reporters are unknown to the defendant and vote-rigging is a hot issue then.  The meeting up with the reporters were pre-arranged and the defendant was well aware of their identity being a reporter and the issues to be raised with him. Under such circumstances, no one would consider any conversation the defendant had with the reporters would just be a mere discussion or a private chat.  It is beyond belief that the defendant would have the impression that he was only having a private chat or discussion with the reporters.

Conversation with Wong

28.  The plaintiff is relying on the conversation with Wong to show that the OD Clipping was a report of what the defendant had said at the material time (page 44 of Bundle).

29.  Given the fact that this is hearsay evidence and with no explanation as to why Wong cannot be called as a witness in this case, I declined to attach any weight to this piece of evidence.  Having said so, this does not affect my findings on the credibility of the defendant as stated above.

WWP Reply

30.  The defendant contended that the WWP Clipping was not based solely on what the defendant said.

31.  Having read the WWP Reply together with its attachment, I do not agree that one can come to the conclusion suggested by the defendant at §16(e) above.  It is beyond argument that in the first sentence of the WWP Reply, it was stated that the defendant is the source of the allegation raised in the plaintiff’s letter and had never said that the report was based on any other source.  And since the defendant also admitted he had said the 2^nd Words to the WWP reporter, the allegation by the defendant that the WWP Clipping is not accurate is neither here nor there.

Inaccurate Record

32.  All in all, the defendant is alleging that what was being reported in the 2 newspaper clippings are inaccurate and did not reflect what he had said to the reporters.  It is the defendant’s case, in particular for the OD clipping, that what was said was not reported and the publication are not authorised by him. If this is the case, one wonders why the defendant had not taken any action against the 2 newspapers concerned.  When such question was being put to the defendant under cross-examination, he said he was not aware of such a means (“我唔知有呢個渠道”).  This is again inconsistent with the statement filed by the defendant dated 31 March 2014 (at §25 of page 186-187 of Bundle) in which he had given a totally different version.  What he had said in the statement was that he was aware of the fact that he can go after the Oriental Daily and he offered reasons as to why he had not done so.  I found the defendant is not a truthful witness and is prepared to make up his evidence to suit his need.

33.  Having considered all the above, I found the contents of the 2 newspaper clippings about what was said by the defendant including the Words were uttered by the defendant to the 2 reporters and accurately reflected in the newspaper clippings.

Whether publication authorised or caused by the Defendant?

34.  The defendant’s evidence is that he was only having a private chat with the reporters and had never authorised or expected the reporters to report the same without an investigation on their own as to its truthfulness.  The defendant said that he just met the reporters on the street and was not a formal interview since the reporters were not equipped with a recorder. 

35.  The plaintiff contended that the chat between the defendant and the reporters cannot possibly be regarded as a “private” one and the defendant must have authorised the same to be published.

36.  It is not in dispute that a defendant will be liable if he is actually aware that what he says or does is likely to be reported or if a reasonable person in his position should have appreciated that there was a significant risk that what he said would be repeated in whole or in part (see Gatley §6.52).  An express authority or request to publish is unnecessary (see Gatley §6.53).  The question is whether the defendant authorised the substance and the sting (see Gatley §6.54).

37.  I declined to accept the defendant’s evidence that he was just having a private chat with the reporters.  The circumstances leading to the interviews with the 2 reporters did suggest otherwise.  I shall refer to §26 above which deals with the same and will not repeat here.  The reporters were to meet the defendant specifically for the 1-house-19-votes incidents or his report to the ICAC.  Being a candidate for the election and the vote-rigging is a hot issue at the material time, it is reasonable for a person in the defendant’s position to appreciate that there was a real risk that whatever comments he made about the election or other candidates to a reporter would be reported in the newspaper.

38.  It is also the evidence of the defendant that he did intend the Oriental Daily reporter to publish the 1-house-19-votes incident and vote-rigging.  The defendant had frankly admitted that he did expect the reporter of Wen Wei Po to report the 2^nd Words.  He also agreed that he had never asked the reporters not to report the conversation or they should do their own investigation before publication.  If the defendant had expected the reporters to publish part of it without restricting the publication, it is reasonable to come to the conclusion that the defendant did authorise the reporting and the defendant should appreciate the significant risk that what he said would be repeated in whole or in part.

39.  I found the defendant did authorise and caused the publication of the Words.

Stink of the Words

40.  In defamation, whether the words complained of carry a defamatory meaning is an issue of fact, which must involve two elements: what the words mean and whether that meaning is defamatory.

41.  A statement is defamatory of the person of whom it is published if it tends to lower him in the estimation of right thinking members of society generally or if it exposes him to public hatred, contempt or ridicule or if it causes him to be shunned or avoided (see Gatley §2.1).

42.  The words complained of are to be construed in their natural and ordinary meaning, ie in which reasonable people of ordinary intelligence, with the ordinary person’s general knowledge and experience of worldly affairs, would be likely to understand them.  The question is what would the word convey to the mind of the ordinary, reasonable, fair-minded reader (see Gatley §3.18).

43.  The ordinary and natural meaning of words may be either the literal meaning or it may be implied or inferred or an indirect meaning (see Gatley§3.18).  The meaning of words should also be determined according to the time and place, the context and circumstances of publication, and the publication as a whole (see Gatley §3.29-3.31).

44.  Irrespective of what is being pleaded as the imputed meaning in the pleadings particularised at §11 above, it is the submission for and on behalf of the plaintiff that :

(a) “the 1^st Words (a) and the 1^st Words (b) seem to suggest that there were sufficient and solid grounds, pointing to P’s guilt of having committed vote-rigging and bribery … and did bear a meaning of more than ‘mere suspicion’.” (§21 of Closing Submission); and

(b) “it is normal for an ordinary reader to infer from the 2nd Words that there are already sufficient bases to charge P of vote-rigging … accord a meaning of more than ‘mere suspicion’” (§23 of Closing Submission).

45.  The defendant contends that there is no allegation in the Words that the plaintiff has been guilty of a criminal offence since the word “queried” (質疑) had been used and it only imputes a mere suspicion and nothing else.

46.  Having considered the argument, I agree with the defendant that the Words complained of are not capable of imputing the meaning that the plaintiff is guilty or had committed the criminal offence of bribery and/or vote-rigging.  The Words, take it to the highest, can only give an ordinary reader the impression of mere suspicion.

47.  The defendant had placed great emphasis on the words “queried” or “cast doubt”, however this court should consider the broad impression conveyed by looking at the whole context of the newspaper clippings and not just the meaning of particular words used.  A bare statement of suspicion may convey the impression that there are grounds for belief in guilt.  And there is a great difference between saying that a man has behaved in a suspicious manner and saying that he is guilty of an offence.

48.  I found the following meanings can be imputed from the 1^st Word (a) and (b), namely :

(a) the 1-house-19-votes incident concerning Pakistan residents involved vote-rigging since, in the words of the defendant, “even tiny dwellings can’t accommodate so many people” (『蝸居都住唔到咁多人』);

(b) these Pakistan residents may be supporters of the plaintiff;

(c) the plaintiff had printed publicity leaflets in Pakistan language but had not reported the same to the REO and the number reported subsequently are rather odd;

(d) the leaflets were being distributed to Pakistan residents on the polling day;

(e) transportation was  being provided to Pakistan residents to go to the polling station; and

(f) the defendant queried if such conduct of the plaintiff involved the offence of vote-rigging and bribery. 

49.  Even though one may say that the defendant had named the incidents at sub-paragraph (b) to (e) above in support, these incidents whether on its own or collectively, do not give one the impression that there are sufficient or solid ground pointing to the plaintiff’s guilt of having committed any criminal offence.  They are being named to support the defendant’s suspicion only and there is nothing solid or concrete in the 1^st Words (a) and (b) that the plaintiff was guilty or had committed the criminal offences named.  The stink of the imputation is that the plaintiff had Pakistan supporters who are involved in the 1-house-19-votes incident which may be a vote-rigging but there is nothing to incriminate the plaintiff or suggest that he is part of it.  And the plaintiff may have behaved suspiciously in the reporting of the leaflets to the REO or the arrangement of transportation to Pakistan residents, but this does not impute the meaning that the plaintiff himself is guilty or committed the offences named.  And I do not accept Mr Tang’s submission that the word “queried” connotes an accusation.  Query is a rather neutral word which tends to suggest a question “is it or is it not?”, rather than an answer, least to say an accusation.

50.  And in the 2^nd Words, it is reported in the context that the defendant had already lodged a complaint to the ICAC.  But I do not agree with Mr Tang that an ordinary reader may infer from the 2^nd Words that there are already sufficient basis to charge the plaintiff of vote-rigging since the complaint to the ICAC is not about the vote-rigging but rather about the failure by the plaintiff to report the printing of the leaflet in Pakistan language to the REO (as appeared from the second paragraph of the content of the WPP Clipping).  The suspicion of vote-rigging mentioned in the first paragraph of the WPP Clipping is based on the fact that the plaintiff had a feast with the Pakistan residents, hence a close relationship with them.  But the feast was only mentioned to show the close relationship and not the vote-rigging.  And it is also suggested that given the close relationship between the plaintiff and the Pakistan residents, “it is queried that it includes or involves the question of vote-rigging”.  No reasonable reader will come to the conclusion that these facts showed that there are sufficient basis to charge the plaintiff for the offence of vote-rigging.

51.  I do not consider the Words bear any of the defamatory meaning suggested by the plaintiff as particularised at §44 above.  The expression of query or doubt as to whether the plaintiff had committed the offence is different from the scenario in the case of Law Kin Man Freeman v Chan Kin Hung (unrep., DCCJ 4563/2007, 3 December 2007) in which the words involved is “the defendant had reason to believe” that the plaintiff in the case had participated in certain criminal conduct.  To say that “he believed someone to have committed a crime” is a positive assertion and I agree that there is no material distinction between this and saying the same person committed a crime.  Whilst “believed to have committed a crime” do suggest guilt, a “query” or a “doubt” does not carry the same implication.

52.  Given my finding that the plaintiff failed to establish the defamatory nature of the Words, the claim by the plaintiff must also fail.  However, in case I am wrong in my finding on the defamatory nature of the Words, I shall deal with the other issues in this case on the assumption that the Words did impute the sting suggested by Mr Tang.

Slander actionable per se?

53.  The defendant contended that the case for slander is based on the oral publication of the Words allegedly made to the reporters and the plaintiff must prove that special damage has resulted from the publication unless the allegation falls within 4 exceptions.  The only relevant exception is the allegation that the plaintiff has been guilty of a criminal offence punishable by imprisonment. And according to the defendant, this is not established since the Words only impute a mere suspicion only.  And even though the plaintiff had pleaded Section 23 Defamation Ordinance (“DO”) in the pleadings (at §12), no particulars had been supplied and there is no evidence suggesting “calculated” to disparage the plaintiff.

54.  The plaintiff submitted that the action of slander in this case is actionable per se since it falls within the exception that the Words impute a crime for which a claimant can be made to suffer physically by way of punishment (see Gatley §4.2) or the Words are calculated to disparage the claimant in any office, profession, calling, trade or business held or carried on by him at the time of publication as stipulated in section 23 DO.

55.  Given the finding above that the Words did not impute the guilt of the plaintiff in committing the offence of vote-rigging and bribery, I found the plaintiff’s argument that the slander in this case falls within the exceptions that the Words impute a crime must fail.

56.  However, I am satisfied that the slander in this case is actionable per se by virtue section 23 DO in the sense that the Words is likely to have adverse effect on the plaintiff by discrediting his professional reputation in his office as a District councillor.  As for the pleading point raised by Mr Chu, I found it to be unfounded.  The wordings of section 23 speaks for itself and I don’t think there requires any further particulars to be pleaded given the background of this case.

57.  I found the slander in this case is actionable per se.

Defence of Justification

58.  In his Re-amended Defence, it is pleaded that “the Defendant avers that his suspicion on the Plaintiff was justified and reasonable.”  It is the evidence of the defendant that he based on a collection of facts to support his suspicion and the fact that there was close relationship between the plaintiff and the Pakistan residents.  These facts are :

(a) the plaintiff had mentioned about another case of “1-house-7-votes” but had omitted mentioning about “1-house-19-votes” when the plaintiff had himself investigated on this matter;

(b) the defendant’s daughter heard from some Pakistan children that the plaintiff was distributing small gifts to the Pakistan residents in the constituency;

(c) the plaintiff had a feast with the Pakistan residents after the election;

(d) the defendant had picked up a publicity leaflet of the plaintiff written in Pakistan language near the polling station and subsequently discovered the leaflet was not filed with the REO;

(e) the plaintiff subsequently filed the leaflet with the REO and reported 32 copies and 200 copies of the leaflet were printed on 4 November 2011 and 27 October 2011 respectively and on 20 December 2011, the REO referred the matter of the leaflet to the ICAC for investigation;

(f) the Pakistan residents went to the poll station in lots;

(g) a Pakistan resident assisted the plaintiff in the vote-counting on the polling day;

(h) the plaintiff had issued a thank-you letter to the Pakistan residents in the constituency after the polling day; and

(i) the plaintiff also admitted he had supporters who are Pakistan residents.

59.  The following legal principles are not in dispute :

(a) “to justify a publication to the effect that there were reasonable grounds to suspect that a claimant was guilty of an offence, a defendant had to establish that there were objectively reasonable grounds for such suspicion” (as per Brooke LJ in Chase v News Group Newspapers Ltd [2003] EMLR 11 at §48); and

(b) justification only applies in cases of imputation of facts and it is the particular imputation that the words are decided to bear that must be proved substantially true (see Gatley §11.6).  

60.  So, this court has to decide whether the primary facts relied upon by the defendant, if proved, are sufficient to give rise to reasonable suspicion, not only that there was vote-rigging and bribery, but also that the plaintiff did commit vote-rigging and bribery.

61.  Having considered the evidence, I agree with the plaintiff that the defendant failed to establish the defence of justification.

62.  The fact that the plaintiff had not mentioned about the 1-house-19-votes incident cannot be conclusive evidence to support the suspicion that the plaintiff is guilty of bribery or vote-rigging.  The defendant also admitted under cross-examination that he had no knowledge as to when the plaintiff was made aware of this 1-house-19-votes incident.  Without such information, one cannot conclude that when the plaintiff mentioned about the 1-house-7-votes incident, he was already aware of the 1-hours-19-votes incident but for reasons only known to himself, had decided to refrain from mentioning the same. 

63.  The plaintiff’s admission that he had investigated the 1-house-19-votes incident only appeared in the OD Clipping.  The defendant would not be able to know about this by the time he talked to the reporter of Oriental Daily.  In any event, there is no evidence that such investigation by the plaintiff had already taken place when the plaintiff mentioned about the 1-house-7-votes incident or the plaintiff was in any way related to the 19 voters involved.  The defendant’s suspicion is not justified. 

64.  Before I leave this point, there is also an observation worth mentioning.  This 1-house-7-votes incident only came up under cross-examination of the defendant and had never appeared in the pleadings or the 2 statements made by the defendant.  If this is really a ground to justify the defendant’s suspicion at the time of the publication, one would wonder why this was not included in the pleadings and statement he filed in his case.  This court had reservation about the truthfulness of the evidence of the defendant in this regard.

65.  The allegation that the plaintiff was distributing small gifts to Pakistan residents is based on hearsay evidence and the defendant had never verified the truth in it.  It is the defendant’s own case that he was aware of the fact that he had no evidence in support.  Under cross-examination, the defendant admitted that the gifts are being distributed at a Pakistan festive activity about 1 week before the election, so this has nothing to do with vote-rigging.  He is only relying on this to support his suspicion that the distribution of small gifts was for the purpose of maintaining good relationship with the Pakistan residents.  As can be seen from the answers of the defendant, this is not a basis to form his suspicion about vote-rigging or bribery committed by the plaintiff.  In any event, this small gifts allegation is not mentioned in both newspaper clippings.  Had this been the reason to justify the defendant’s suspicion, one would wonder why the defendant had not told the reporter the same.  This is another example of the defendant’s untrustworthiness.

66.  The plaintiff had hosted a feast for many including some Pakistan is not in dispute.  According to the plaintiff, this is to celebrate the success in the election.  The defendant’s evidence is that he was not there at the feast and cannot tell if those Pakistan residents attended the feast were amongst the 19 votes and he is only relying on this to show the close relationship between the plaintiff and the Pakistan residents and supports his suspicion that the plaintiff might have committed vote-rigging.  It is the defendant’s own case that he was aware of the fact that he had no evidence in support.  Judging from the evidence of the defendant, there is no nexus to link the feast to vote-rigging and any suspicion based on this fact is really farfetched and without reasonable basis.

67.  The fact that the plaintiff had prepared the leaflet in a language to cater for the Pakistan voters in the constituency is understandable.  The defendant also admitted under cross-examination that every candidate is distributing publicity leaflets and this had nothing to do with vote-rigging or bribery and his only complaint of this is the failure of the plaintiff to report the leaflet to the REO as well as the late filing of the same.  On his own admission, it is beyond argument that this factual basis is not sufficient to justify the defendant’s suspicion.  And the fact the REO had referred the leaflet complaint to the ICAC only occurred on 20 December 2011, a date after the publication of the Words. This cannot be a justification in the mind of the defendant when the Words were uttered.

68.  The fact that the Pakistan residents went to the polling station in lots, even if this is a proved fact, does not give rise to any suspicion of vote-rigging or bribery on the part of the plaintiff since there is no evidence to show that the plaintiff had anything to do with this.  There is no reasonable ground for the defendant to form his suspicion.

69.  The fact that a Pakistan resident had assisted the plaintiff in the vote-counting, again, is neither here nor there.  This may only show that the plaintiff had Pakistan supporter or had close relationship with Pakistan residents but it is far from reasonable to justify the suspicion that the plaintiff may have committed vote-rigging or bribery just because of the fact that he had Pakistan residents’ support or had close relationship with them.

70.  The same applies to the thank you letter issued by the plaintiff to the Pakistan residents.  The defendant’s evidence is that since the plaintiff is familiar with the Pakistan residents, there may be the possibilities that he will commit the offence of vote-rigging.  I found such a contention by the defendant is without basis and outrageous.

71.  I find the defendant has failed to show that the facts relied upon by him are sufficient to give rise to any reasonable suspicion that the plaintiff did commit the offence of vote-rigging or bribery and his defence of justification must fail.

Defence of Fair Comment

72.  It is pleaded in the Re-amended Defence that “the Defendant avers that his comments are fair and/or honest” (page 24 of Bundle).  The defendant relied upon the same sets of particulars stated at §58 above to establish this defence.

73.  It is not in dispute that the relevant principle in relation to the defence of fair comment are neatly summarised by Lord Nicholls in Cheng & Anor v Tse Wai Chun (2000) 3 HKCFAR 339 at 347B-348B as follows :

(a) the comment must be on a matter of public interest;

(b) the comment must be recognisable as a comment, as distinct from an imputation of fact;

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

(d) the comment must explicitly or implicitly indicate what are the facts on which the comments is being made; and

(e) the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views.

74.  It is the submission of the plaintiff that the Words are a mixture of statement of fact and statement of comment and the defendant failed in establishing this defence because the primary facts based upon by him to form his suspicion on the plaintiff were indeed insufficient and unreasonable, inferring that the defendant could not have honestly or genuinely held his opinion.  And the defendant was actuated by malice when he published the Words given his loss to the plaintiff in the election.

75.  The defendant contended that the comment can be made by an honest person given vote-rigging was a hot issue in Hong Kong at the material time and the defendant had reported the matter to ICAC showing his genuine belief in such fact.  As for malice, since the defendant had reminded the reporters of the lack of evidence and only had a discussion with the reporters without coming to any conclusion, this tends to negative the existence of any malice.

76.  As found in §60-70 above, the facts in support of the suspicion of the defendant are not established.  There is simply no factual basis for the allegations in the Words and it is unfair for the defendant to have uttered the Words to the reporters. And knowing that he had no evidence in support of such serious allegations, yet the defendant elected to publish the Words to the reporters but refrained from committing to a conclusion, this tends to show that the defendant did not have a genuine/honest belief in the allegation in the Words and it was made with malice.

77.  I found the defendant has also failed in his defence of fair comment.

Proof of Damages

78.  It is the submission of the defendant that the plaintiff has made no effort in proving damages and there is no evidence to show that the plaintiff had suffered any loss.  As for aggravated damages, relying on the case of Morgan v Oldhams Press Ltd & Anor [1971] 1 WLR 1239, it is submitted that the absence of an apology is explicable in the present case since it is the defence that the Words are very different from what the defendant said to the reporters.  In any event, the plaintiff had never pray for a letter of apology in his claim and this showed that the plaintiff’s feelings were not affected by the presence or absence of a letter of apology.  It is Mr Chu’s submission that the only appropriate damage to be awarded in this case, if any, should be nominal damage.

79.  The plaintiff submitted that if this court finds that the Words are actionable per se, the plaintiff does not need to prove that he has suffered any damage, which is presumed.

80.  Given the finding that the slander and libel in this case are actionable per se, I agree with the plaintiff that the plaintiff does not need to prove he had in fact suffered any damage.

On Quantum

81.  Mr Tang relied on the following cases to justify a claim of general damages and aggravated damages in the range of HK$100,000 to HK$200,000.

82.  In Lo Sam Shing v Li Fong (unrep., HCA 1803/2011, 14 March 2014), a libel case with the plaintiff being a district councillor.  The defendant issued a letter to village representatives and rural representatives at the time of an election campaign suggesting that the plaintiff was dishonest and incompetent.  To J found that :

(a) the plaintiff has been a public figure;

(b) the defamation was very serious in nature impugned on the reputation of a public office holder;

(c) the defendant knew the content was in fact untrue but concocted it;

(d) the defendant refused to retract or apologise;

(e) the defendant’s motive was to discredit the plaintiff and prejudice his chance of success; and

(f) the defendant chose to contest the action knowing that all defences must fail,

And awarded a general damages in the sum of HK$200,000 and aggravated damages of HK$100,000.

83.  In Mok Kam Kwai v Lam Mo Fat (unrep., HCA 1868/2010, 6March 2014), a libel case with the plaintiff being the chairman of the rural committee.  The defendant put up banners in conspicuous spots in a village, suggesting that the plaintiff only worked for Sun Hung Kai but not for the villagers and he was incompetent.  Chung J found the offending banners are shown in conspicuous places and the plaintiff was at the time holding an office of honour and awarded general damages in the sum of HK$400,000.

84.  In 周啟邦律師事務所訴何秀武 (unrep., HCA 2360/2007 & HCA 284/2008, 4 October 2010), a libel case with the defendant being a candidate in the 2007 District Council election who had published an election leaflet saying that the plaintiff, while acting as adviser for an incorporation of owners of a building, involved in improper conduct of soliciting client to conduct unmeritorious litigation and was charging an unreasonable fee.  On request, an apology was published a month later.  Au-Yeung J took into account the fact that the leaflet, issued before election with the intention of affecting election results, not only attacked the integrity but also the professional conduct of the plaintiff and the defendant had never asked the plaintiff about the truth with an apology came too late, awarded a general damages of HK$100,000 to one of the partners who run for the election and $80,000 for the other 3 partners of the plaintiff.

85.  In Chan Iu Seng v Ko Choi Hin & Ors (unrep., HCA 2901/2004, HCA 2935/2004, 28 January 2010), a libel case where the plaintiff was the Honorary Chairman and Vice-Chairman while the defendants were the directors of a clansmen’s association with 6,000 members.  In the heat of director election, the defendants sent a circular to all members, accusing the plaintiff of removing a former chairman by a libellous statement, conspiring to claim double legal fees from the association and causing the death of a member.  It was considered by Chu J (as she then was) that the plaintiff had substantial standing and reputation within the association and in the community and the unpleasant and serious attacks made by the defendants were against the plaintiff’s integrity, honesty and propriety in conduct and the publication was wide.  An award of HK$300,000 for general damages was made.

General Damages

86.  The objective of damages is to restore the plaintiff, as far as money can do so, to the position he would have been in if the tort had not been committed.  Where there has been no retraction or apology, an order for damages is the only solatium available to the plaintiff (see Hung Yuen Chan Robert v Hong Kong Standard Newspapers Ltd [1996] 4 HKC 519).  In Cheung Ng Sheong Steven v Eastweek Publisher Ltd [1995] 3 HKC 601, Nazareth VP has considered the submission in relation to the issue of damages for libel and found that :

“damages for libel must provide for several disparate elements, not only damage to esteem and reputation. They also ‘must be sufficient to publicly and demonstratively and absolutely vindicate the plaintiff and to compensate for seriously injured feelings … not only caused by the original libel but all the subsequent aggravation thereof down to the verdict, which would restore the plaintiff’s ‘pride and confidence’ … They must enable the plaintiff ‘to convince a bystander the baselessness of the charge’ if ‘the libel driven underground, emerges from its lurking places at some future date’” (at page 613D).

87.  I found the 3 authorities with election background are relevant but the facts in them are more serious when compared to this case in the sense that the publication of the defamatory words in these cases is instigated with the ulterior intent to affect election results.  It is not the case here. 

88.  Having considered the cases relied upon by the plaintiff and bearing in mind the gravity of the defamation (serious allegation involving criminal offences), the range of its publication (to 2 reporters and subsequently on 2 widely circulated newspaper in Hong Kong), the fact that the defendant has persisted with the charge and there is no evidence to show that the plaintiff’s profession or work had in any way affected by the Words except, according to the plaintiff, for some concern from “kai fongs” as to the progress of this case, a sum of HK$100,000 should be awarded as general damages.

Aggravated Damages

89.  The conduct of the defendant, his conduct of the case, and his state of mind are all matters which the claimant may rely on as aggravating the damages in so far as they bear on the injury to him.  The conduct of a defendant may often be regarded as aggravating the injury to the feelings, so as to support a claim for aggravated damages, includes a failure to make any or any sufficient apology and withdrawal (see Gatley §9.18).

90.  I found the defendant could not have an honest belief in the allegations made in the Words and prior to these proceedings, he was given the opportunity to apologise and publish a news for clarification, yet he declined to do so.  I am satisfied that the plaintiff is entitled to aggravated damages in the sum of HK$20,000.

Injunction

91.  The plaintiff is asking for an injunction restraining the defendant from further publishing the Words or similar words.  It is the contention of the plaintiff that since the defendant had good relationship with the residents in the district and is still currently involved in many community activities and the defendant still insisted that what he suspected were true, there is a chance that the defendant may spread around rumours about the plaintiff possibly committing vote-rigging or bribery again.

92.  The defendant on the other hand argued that there is no evidence that the defendant has published the Words since the publication alleged in this case, hence an injunction is inappropriate.

93.  It is not in dispute that the court will only grant an injunction if it is satisfied that there is reason to apprehend further publication by the defendant (see Gatley at §9.41).  I found the plaintiff failed to satisfy this requirement.  There is no evidence that the defendant had published the Words again even though he was having active participation in the community activities all along.  I found the worry of the plaintiff is unfounded and an injunction under such circumstances is not justified.

The Order

94.  It is ordered that :-

(a) The action in this case be dismissed; and

(b) Costs order nisi that costs of the action be to the defendant, including all costs reserved, with Certificate for Counsel, to be taxed if not agreed.  Unless any of the parties applies by summons to vary it, the costs order nisi shall be made absolute upon expiry of 14 days.