LEE YORK FAI v. YUE SHIN MAN ANNA

HCA4305/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.4305 OF 2003

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J U D G M E N T

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1. This is a defamation case.

Background

2. The plaintiff is a medical doctor by profession and a member of the Shatin District Council.  The defendant is a local volunteer worker of the Democratic Alliance for Betterment of Hong Kong.  Both of them
ran for the 2003 District Council Election (“the Election”), competing for the only seat in the Wo Che Estate Constituency, Shatin.  In the end, the plaintiff won by a narrow margin.

3. The Election was governed by the Guidelines on Election-Related Activities issued by the Electoral Affairs Commission established under the Electoral Affairs Commission Ordinance, Cap.541 (“the Guidelines”).

4. Under the Guidelines, distribution of election advertisements including balloons required the prior permission of the relevant authorities.  In the present case where distribution of election advertisements took place in the public area of Wo Che Estate such as pedestrians fly-over, the relevant authority was the Hong Kong Housing Authority (“HKHA”), which manages the estate.  An application for permission for distribution of election advertisements had to be made to HKHA in advance.  Then a copy of the permission given by HKHA had to be provided to the Returning Officer.  Otherwise, it might constitute a breach of the Guidelines.

5. In November 2003, the parties were campaigning.  On 16 November 2003 at about 3:30 p.m., Ms Ho Man Man (“Ms Ho”), a reporter of Apple Daily News, came to Wo Che Estate and asked the defendant questions relating to allegations that she might have breached the Guidelines.  The defendant said something to Ms Ho.  What the defendant actually said to Ms Ho is in hot dispute.  The plaintiff’s case is that she told Ms Ho that “李躍輝向街坊派發宣傳汽球，涉嫌觸犯選舉活動指引” (“the Words”).  The defendant’s case is that at the time when Ms Law spoke to her, voluntary workers of the plaintiff were distributing balloons bearing a caricature of the plaintiff with his Chinese name “李躍輝” and his election number (No.2) with a Chinese slogan “請投一票” (“the Balloons”) in the commercial complex and covered pedestrians fly-over of Wo Che Estate to passers-by.  The defendant said “有人係度派波仔，都涉嫌觸犯選舉規例啦” (“the Defendant’s Words”).

6. On 17 November 2003, the Apple Daily News carried at page A12 reports concerning the District Board election under the byline of Ms Ho and another reporter Mr Law Wai Kwong.  One of the reports covered the Wo Che Estate Constituency (“the Report”) and referred to the defendant’s comments and denial about allegations against her that she might have breached certain election guidelines.  The reporters continued to write :

“余倩雯反指對手李躍輝向街坊派發宣傳汽球，涉嫌觸犯選舉活動指引。”

7. On the same day, the plaintiff’s solicitors wrote to the defendant, complaining that she had defamed him.  The defendant then made enquiry with the HKHA, which by letter dated 15 January 2004 (“the HKHA’s Letter”) confirmed that the plaintiff had not applied for permission to distribute the Balloons in the Wo Che Estate area on 16 November 2003.

The plaintiff’s complaints

8. On 21 November 2003, the plaintiff commenced the present action against the defendant for slander and libel.  (He had not issued any proceedings against Apple Daily News.) 

9. In the Amended Statement of Claim, the plaintiff pleaded that the Words were untrue, defamatory and referred to him.  He had duly complied with the Guidelines and that the defendant had no reasonable ground to believe that he had infringed the Guidelines.  The defendant published the Words to Ms Ho and Mr Law orally at the interview on 16 November 2003.  This formed the basis of the claim of slander.  She had further caused to be printed and published the Words in the Apple Daily News on 17 November 2003.  This formed the basis for the claim of libel.

10. The plaintiff alleged that the Words in their natural and ordinary meaning meant and were understood to mean :

(a)      that the plaintiff had paid no attention to the Guidelines in conducting the election campaign;

(b)     that the plaintiff had paid attention to the Guidelines but nevertheless acted wrongfully and in breach of the Guidelines recklessly or intentionally; and

(c)     that the plaintiff might run the Election without due regard to the Guidelines.

11. He further pleaded that by way of innuendo, the Words were understood to mean :

(a)      that the plaintiff is, being a doctor and/or a member of the Shatin District Council, a person who does not follow rule or guidance fixed by authority;

(b)     that the plaintiff is, being a doctor and/or a member of the Shatin District Council, a person who wishes to achieve result without due regards to rule or guidance fixed by authority;

(c)     that the plaintiff is, being a doctor and/or a member of the Shatin District Council, a person who wished to advance his own interest and/or prejudice the interest of his competitors without due regards to rule or guidance fixed by authority;

(d)     that the plaintiff is a doctor and/or a member of the Shatin District Council who has acted in a manner below the standard expected or required of a doctor and/or a member of the District Council; and

(e)      that the plaintiff may not be a person of good character and/or may not have achieved such character as expected or required of a doctor and/or a member of the District Council.

The plaintiff claimed for damages because of the defamation.

Defence

12. In the Re-Re-Amended Defence, the defendant raised a number of points.

13. First, the defendant repeated her case on the circumstances in which she told Ms Ho the Defendant’s Words.  She then pleaded that the Defendant’s Words referred to the plaintiff’s voluntary workers distributing the Balloons.

14. Second, the plaintiff pleaded justification in that the plaintiff did infringe the Guidelines or that there were reasonable grounds to believe that he had infringed the Guidelines.  In this regard, she relied on, inter alia, the HKHA’s Letter.  The defendant also pleaded fair comment and qualified privilege as defence but abandoned them at the commencement of the trial.

15. Third, in respect of the plaintiff’s case on the republication by Apple Daily News, the defendant pleaded that she did not know and could not have known that the reporters would not quote her words accurately.

16. Fourth, the defendant denied that the Defendant’s Words were calculated to disparage the plaintiff’s profession as a doctor or his office as a District Councillor.  In other words, the plaintiff’s action for slander in respect of the publication of the same to Ms Ho verbally is not actionable per se without proof of special damage.

Three main issues

17. Three main issues arising from the parties’ pleaded case need to be determined first.  They are :

(1)     What did the defendant actually say to Ms Ho during their conversation on 16 November 2003?  Was it the Words or the Defendant’s Words?  (“Issue 1”)

(2)     Were the words spoken by the defendant to Ms Ho published of the plaintiff?  (“Issue 2”)

(3)     Did Apple Daily News accurately republish what the defendant told Ms Ho in the Report?  (“Issue 3”)

18. On these matters, the defendant had this to say in her witness statement :

“7.    2003 年11 月16 日，星期天，在下午約3 時30 分，我在沙田禾輋邨立法局劉江華議員辦事處門外，有一位蘋果日報女記者來找我，我之前並不認識她。

8.      她給我名片，上面印著她的名字 ‘何文雯’。….

9.      女記者何文雯對我說 ：有人向她投訴我的競選宣傳單張和免費粵劇折子戲票用釘書機夾在一起，派給居民，有違區議會選舉規例，何小姐問我有沒有這樣做。

10.    我回應說我怎會那麼蠢做出那樣事情。

11.     當時，我看見有人在附近的禾輋邨天橋上派發氣球，為原告人的競選宣傳，所以我說 ：

‘有人係度派波仔，都涉嫌觸犯選舉規例啦。’

12.     當我向女記者何文雯說 ：‘有人係度派波仔’ 時，我是指當時在禾輋邨天橋上派汽球的人，並非原告人。我當時並不知道誰指示那些人在天橋上派汽球。

13.     女記者何文雯離開後，我的秘書劉慧玲小姐向禾輋邨天橋上派汽球的人索取汽球，並取回給我，劉慧玲小姐也是我當時的競選義工之一。…. 汽球的一面印有‘李躍輝醫生’ 和他的畫像，另一面印有 ‘請投一票’四個字，及用圓圈圈著的亞拉伯數目字2 號，原告人當時是2 號候選人，很明顯，那些汽球是為他競選區議會的選舉宣傳之用。

14.     我的秘書劉慧玲小姐為我們用相機拍下那些人在天橋上派免費汽球的情境，及途人在邨內取得汽球的情況，….。

15.     2003 年11 月17 日，星期一早上，我翻閱報張，發現A12版登出女記者何文雯的報導，其中一段說 ‘余倩雯反指對手獨立候選人李躍輝向街坊派發宣傳汽球，涉嫌觸犯選舉活動指引。’ 這絕非我對女記者何文雯的說話。我正確的說話在這份證人供詞第11 段中列出。….”

19. In her oral testimony, the defendant went on to say that she was very busy that day.  When Ms Ho approached her, she fired a series of questions.  The defendant did not really take that as an interview.  She did not want to answer Ms Ho’s questions.  But being so bombarded, she uttered to Ms Ho the Defendant’s Words which she regarded as a causal comment of what she saw on that day and days before.

20. For the simple reason that he was not present during the conversation, the plaintiff has been unable to give any evidence to contradict the defendant.  Further, contrary to reasonable expectation, he has not called Ms Ho to give evidence to support his case either.  What his counsel, Ms Chan, sought to do instead is to attack the defendant’s credibility.  In this regard, she took a number of points.

21. First, during cross-examination, the defendant admitted that she did not see anybody distributing the Balloons during her conversation with Ms Ho.  This is inconsistent with paragraph 11 of her witness statement.  But the defendant went on to give an explanation.  While she did not eye-witness the distribution, she did see passers-by holding the Balloons and passing them to and fro (咁的人拎住的波仔傳嚟傳去).  Since they were holding the Balloons, somebody must have passed out the Balloons beforehand.  I accept her explanation.

22. Further, the defendant’s evidence that there was distribution of the Balloons at the material time is corroborated by her volunteer, Ms Lau Wai Ling.  It is Ms Lau’s evidence that in the afternoon on 16 November 2003, she saw people distributing the Balloons in the covered pedestrians fly-over of Wo Che Estate.  She got a Balloon from those people and took photographs of the distribution.  I accept Ms Lau’s evidence which was not shaken under cross-examination.  Thus, although the defendant did not eye-witness any distribution of the Balloons during the interview, I find that there was actual distribution of the Balloons during that afternoon.

23. Second, Ms Chan submitted that the defendant failed to identify the exact provisions in the Guidelines which governed the distribution of election advertisements.  The defendant said for the first time during cross-examination that according to her impression there were some alleged internal guidelines had been issued by the HKHA.  I do not think the plaintiff can derive much assistance from the defendant’s evidence on the Guidelines.  For it is really common ground that distribution of balloons without prior approval of HKHA would constitute a breach of the Guidelines.  The defendant should not be criticized for failing to identify the exact provisions in the Guidelines governing the distribution of election advertisements.  The Guidelines is not easy to read.  Even counsel had to spend considerable time in court to find out those provisions.  As to her reference to the alleged internal guidelines issued by HKHA, the defendant did say that it was only according to her impression.  Bearing in mind that the dispute arose more than three years ago, it is not unlikely that her memory might have been dimmed because of the lapse of time.

24. Third, Ms Chan submitted that the defendant had taken no action to correct the purported misquotation by Apple Daily News.  That may well be true.  But I do not think much can be said about it.  Four days after the Apple Daily News published the Report, the plaintiff commenced the present action.  The defendant’s attention must have been drawn to these proceedings.  If the defendant can be criticized for such inaction, the same can be said of the plaintiff.  On 18 November 2003, the Sun Daily carried a report at page A9 referring to the Report and the plaintiff’s intended legal action against the defendant (“the Sun Daily Report”).  At the end of the Sun Daily Report, it was said :

“李躍輝承認有向街坊派發宣傳氣球，但事前是得到選管會回覆說不會違規，故認為余倩雯及《蘋果日報》的報導失實。”

On a fair reading of the above, it suggested that the plaintiff admitted that he had distributed the Balloons to the neighbours in Wo Che Estate openly.  But according to his evidence, this did not tally exactly with what he had told the reporter.  (I will return to this part of his evidence when I deal with the defence of justification.)  If what he said under cross-examination was correct, then the Sun Daily Report was not accurate.  But there is no evidence to suggest that the plaintiff had taken any action to rectify the position.

25. Finally, Ms Chan submitted that the Defendant’s Words first appeared in the Re-Re-Amended Defence in September 2005.  Further, after receiving the plaintiff’s letter before action, the defendant made enquiry with HKHA to confirm her case that the plaintiff did infringe the Guidelines.  She was not then running the case that the Report had misquoted her.  Again, I do not think the plaintiff can derive much assistance from the defendant’s conduct at the time.  There is nothing wrong for the defendant to make enquiry with HKHA to confirm her case that the plaintiff had infringed the Guidelines.  After all, justification is a complete defence to the plaintiff’s action for defamation.  As to when the Defendant’s Words were actually pleaded, I note the time but I do not think the defendant should be blamed for the way her lawyers had conducted the litigation.

26. I have carefully considered the defendant’s evidence.  I do not think any point advanced by Ms Chan had shaken her credibility.  I accept her evidence and find that what she uttered to Ms Ho on 16 November 2003 was the Defendant’s Words and not the Words.  This disposes of Issue 1.

27. Turning to Issue 2, I accept the defendant’s evidence and find that when she uttered the Defendant’s Words, she was referring to those who actually distributed the Balloons and not to the plaintiff.

28. A pleading point arose from the above finding, which is this.  It is the plaintiff’s pleaded case that the defendant uttered the Words to Ms Ho which were published of him.  Had I found in his favour that the defendant did utter the Words, the Words, which contained an express reference to his name, must have been published of him.  But the Defendant’s Words did not expressly refer to him.  In light of my finding and in order to make good his claim, the plaintiff must prove that the Defendant’s Words were published of him.  The question is whether the plaintiff should first plead in his pleadings (by way of Reply) that the Defendant’s Words were published of him.  At her closing submissions, I invited Ms Chan to make submission on this point.  She submitted that it was not necessary.  She said the test is whether the plaintiff may reasonably be understood to be referred to by the Defendant’s Words : Gatley on Libel and Slander, 10^th Edn, para.7.2 at p.183.  This proposition is well established.  But it is not an answer to the pleading point.

29. The requirement of a proper plea is set out in Gatley at para.26.25 at pp.825-826 thus :

“It is an essential part of the claimant’s case to show that he is the person referred to by the defamatory words.  Accordingly, where it is not absolutely clear on the face of the words that they refer to the claimant, e.g., where he is described by his initial letters, or by a fictitious name, or by the name of somebody else, or where he is not mentioned at all, the claimant must make clear in his particulars of claim the basis on which he claims to have been identified as the subject of the words complained of.  He should set out the connecting facts which establish the link between himself and the words used… These are material facts which must be pleaded.  If the claimant dose not plead such facts sufficiently, his claim will be struck out…”  (Emphasis supplied.)

30. Applying the above principles, I am of the view that the plaintiff must plead the connecting facts which establish the link between himself and the Defendant’s Words.  It is not sufficient for counsel to simply contend that the plaintiff may reasonably be understood to be referred to by the Defendant’s Words.  The circumstances and the factors that Ms Chan sought to rely on to make good her contention must be pleaded first.  In the absence of a proper plea, it is not open to the plaintiff to argue that the Defendant’s Words were published of him.

31. For the above reasons, I find that the Defendant’s Words were not published of the plaintiff.

32. On Issue 3, I find that Report had not accurately repeated what the defendant told Ms Ho.  The defendant could not be held liable for the Words published in the Report.

Justification

33. In light of my findings on Issues 1 to 3, the plaintiff’s claim on slander and libel must fail.  I need not dwell on other issues.  However, for completeness, I would briefly deal with the defence of justification as follows.

34. Assuming that the Defendant’s Words were published of the plaintiff, and assuming further but without deciding that the Defendant’s Words were defamatory as alleged and that defendant was also liable for the publication of the Report, I would hold that the defendant has established the defence of justification.

35. As noted, according to the Sun Daily Report, the plaintiff admitted that he had distributed the Balloons to the neighbours in Wo Che Estate but the election authority said it was not in breach of the election regulations.  In his oral testimony, the plaintiff said that he only intended to and did only distribute the Balloons on the Election Day, that is, 23 November 2003.  He had not previously distributed the Balloons.  When asked about his admission in the Sun Daily Report that he had distributed the Balloons to the neighbours, the plaintiff said that he did give away a small amount of the Balloons at his office in Wo Che Estate internally to his volunteer helpers before 23 November 2003.  And he had confirmed with the election authority that no prior approval of HKHA was required because his office did not fall within HKHA’s management.  When he was interviewed by the reporter of the Sun Daily, he told the reporter that he had distributed the Balloons but he had not told the reporter that he was in fact referring to the giving away of the Balloons in his office.  He said it was because the reporter had not asked about the details of the distribution.  He also said he explained to the reporter the procedure to follow for distribution of balloons, that is, prior approval had to be obtained for distribution from owners of private property or HKHA in housing estates managed by it, as the case may be.  He then told the reporter he had followed the procedure and had not breached the Guidelines.

36. I have considerable difficulty in accepting the plaintiff’s evidence.  Before the interview by the Sun Daily, the plaintiff had already read the Report, which on his case, carried the defendant’s untrue statement that he had distributed the Balloons to the neighbours.  He knew perfectly well that the allegation that he had distributed the Balloons to the neighbours would be the main if not the only subject of the interview.  Plainly, distributing the Balloons to neighbours is one thing, which might constitute a breach of the Guidelines.  Giving a small amount of the Balloons to his voluntary workers internally in his office is quite another, which did not contravene the Guidelines .  Even the plaintiff himself sought to draw a distinction between the two in his evidence.  In the circumstances, I fail to see how the plaintiff could have admitted to the reporter of the Sun Daily that he had distributed the Balloons and why he had not expressly told the reporter that as a matter of fact he had only given away a small amount of the Balloons to his volunteers in his office internally.  He should have expressly told the reporter that he had not distributed the Balloons to the neighbours as alleged.  In my view, what the plaintiff said in his testimony is an afterthought.  I reject it without hesitation.  I also reject his allegation that he had only given away a small amount of the Balloons in his office internally.

37. I find that, as he had admitted to the Sun Daily, he had in fact distributed the Balloons to the neighbours of Wo Che Estate before 23 November 2003.  And in light of my earlier findings in paragraph 22 above, I find that the plaintiff did distribute the Balloons to the neighbours of Wo Che Estate on 16 November 2003 as contended by the defendant.

38. It is indisputable that the plaintiff had not obtained the prior approval of HKHA for the distribution of the Balloons on 16 November 2003.  This constituted a breach of the Guidelines.  On 16 November 2003, the defendant had not found out that the plaintiff had not obtained the requisite approval from HKHA.  Therefore she told Ms Ho that the distribution might involve a breach of the Guidelines.  What she said in the circumstances was true.

Conclusion

39. I will dismiss the plaintiff’s claim.

40. I will further make an order nisi that the plaintiff do pay the defendant’s costs of the action, including any costs reserved, to be taxed if not agreed.