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DCCJ 4624/2018
[2022] HKDC 608
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO. 4624 OF 2018
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| BETWEEN |
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THE INCORPORATED OWNERS OF ALLWAY GARDENS (荃威花園業主立案法團) |
Plaintiff |
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AND |
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LAM YUEN PUN (林婉濱) |
Defendant |
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| Coram: |
His Honour Judge Harold Leong in Court |
| Date of Hearing: |
11-14 January 2022 |
| Date of Closing Submission: |
25 February 2022 |
| Date of Judgment: |
7 July 2022 |
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JUDGMENT
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1. This is a defamation claim.
2. The plaintiff is the Incorporated Owners of Allway Gardens, Tsuen Wan. The defendant was, at the material time, a district council member of Allway constituency. She had an office in Allway Gardens Shopping Centre but she was not a resident of Allway Gardens.
3. The defamation claim concerns 3 documents: the 1st Document (Trial Bundle B1 page 225), the 2nd Document (Trial Bundle B1 page 227) and the Ming Pao Article (Trial Bundle page 229).
4. The words being complained of are defined as the “1st Words” (paragraphs 12.1 and 12.2 of the Statement of claim, Trial Bundle A page 28), the “2nd Words” (paragraphs 21.1, 21.2 and 21.3 of the Statement of Claim, Trial Bundle A page 31-32) and the “3rd Words” (paragraphs 28.1 and 28.2 of the Statement of Claim, Trial Bundle A page 35).
5. In gist, the 1st, 2nd and 3rd Words all raised a suspicion that the plaintiff had “internally decided” to appoint Urban Property Management Limited (“Urban”) as the management company for Allway Garden without allowing the residents a proper choice and so were forced to pay higher management fees etc.
Background
6. Between 1 February 2017 and 31 January 2019, Urban provided management service for Allway Garden. As the service contract would expire at the end of January 2019, the plaintiff in mid-2018 resolved to seek tender for a new management service contract.
7. The crux of the controversy that triggered the dispute was that, on 1 August 2018, the plaintiff invited 8 companies to tender for the new management service contract instead of tender by way of open advertisement.
8. Upon receiving just one tender from Urban, with no reply from the other 7 companies, on 17 August 2018, instead of changing to using an open tender method, made a second attempt by inviting 8 companies to tender (4 of which had been previously invited but had not replied, and 3 were new). Again, only Urban replied.
9. The defendant did not dispute that, on or about 22 September 2018, she helped published and distribute the 1st Document.
10. There was no dispute that the 2nd Document came to the attention of a reporter in Ming Pao Newspaper (“the Reporter”) but there was a dispute as to whether the defendant was involved in the distribution of such. I will deal with this dispute first.
11. There was no dispute that the Reporter sought comments from Mr. Chiu and the Defendant and the 3rd Document was subsequently published in Ming Pao.
Publication of the 2nd Document
12. According to the defendant, the 2nd Document is a preliminary draft of the 1st Document, which was the final version which was eventually printed and distributed. The defendant denies passing the 2nd Document. Under cross-examination, she claimed that she had a team of advisers helping with the drafting, and some owners of Allway Gardens also asked for a printed draft to be taken home to read. The defendant had reminded them not to leak it out, so she did not know how this was “leaked” to the Reporter.
13. The plaintiff’s witness, Mr. Chiu Yan Loy (“Mr. Chiu”), initially only claimed under cross-examination that “my understanding was that the defendant provided the document to the Reporter” and “my impression was that the Reporter told me during the telephone conversation”. As the cross-examination progressed, he appeared to become more certain that he was told such over the phone.
14. I think that this evidence is, at best, hearsay.
15. Further, I would agree with Mr. Chu, counsel for the defendant, that a professional reporter would unlikely reveal the source of his information. The screen capture of the Reporter’s WhatsApp message to him only contained the words “Their leaflet(s)” (佢哋傳單) (Trial Bundle B1 page 228) which clearly suggested more than one person and did not identify the defendant. The screen capture also showed a second similar document which is clearly another draft version. I agree with Mr. Chu that, logically, the defendant would unlikely be leaking two draft versions to a reporter when (by the time the Reporter approached Mr. Chiu for comments) the defendant had already distributed the final version, i.e. the 1st Document.
16. As such, I find that there is insufficient evidence to prove that the defendant has been involved in publishing the 2nd Document. As such, I do not need to deal with the 2nd Words.
Whether the 1st and 3rd Words are defamatory
17. The 1st Words are:
“點解得一間管理公司肯入標? 荃威未試過”
“管理公司合約疑 “內定左富城” 業主冇得揀，硬食加價35%!（備注：富城就是現任管理公司）
法團沒有公開招標，只 “邀標” 過兩次。（邀標，即時邀請公司入標）
意見：既然第一次邀標失敗，只有富城入標，第二次招標時就應該改為公開招標，例如刊登報紙招標。”
(I have attempted to recreate the underlining and boldness used in the 1st Documents in this judgment but I have based my assessment on the actual document in Trial Bundle B1 page 225)
18. The 3rd Words are:
“荃威花園選管理公司，法團 “邀標” 代招標被指內定”
“林婉濱批評法團，既然首次邀標不理想，第二次便應公開招標以增加選擇，批評法團猶如 “內定” 予富城。”
19. The plaintiff’s case is that, in their natural and ordinary meaning, the 1st and 3rd Words meant or were understood to mean “the plaintiff and / or members of its management committee have some unspeakable relation, connection and / or association, a secret deal / agreement, and / or that the tender exercise was rigged by the plaintiff, or otherwise unfair and / or improper with Urban as the pre-determined winner, and / or conspire with Urban in unreasonably raising the management contract price” etc. (I need not list out all the allegations which I have considered and which are under paragraphs 14 and 31 of the Statement of Claim, Trial Bundle A, page 29 and 36.)
20. The defendant denies that the 1st and 3rd Words are defamatory. The gist of her case regarding the 1st Words is that the meaning of “suspected to be internally decided” or “suspected to be pre-determined” does not “necessarily imply any criminal / corrupted / malicious act or conspiracy”, but “…might have perfectly legitimate / good reasons behind it”. That “the word “疑” means that the matter is not confirmed / the evidence to which is not yet sufficient.” etc. (paragraphs 13(h) of the Defence, Trial Bundle A, page 61).
21. A similar defence was raised regarding the 3rd Words (paragraphs 22(e) to (h) of the Defence, Trial Bundle A page 69-70).
Legal principles in determining the natural ordinary meaning
22. The determination of whether the words complained of are defamatory is a question of construction and not of evidence (Hung Yuen Chan Robert v Hong Kong Standard Newspaper Ltd & Ors, HCA 9417/1994 at paragraph 21.) When considering if the words are defamatory, the court should consider the words as a whole. The learned editors of Gatley on Libel and Slander, Twelve Edition, had summarized the general approach (paragraph 3.14 on page 115 -116):
“(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any “bane and antidote” taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which “can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…” (8) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.”
23. Firstly, I agree with Mr. Cheung, Counsel for the plaintiff, that the term “內定” (“internally decided” or “pre-determined”), on its own, is clearly defamatory. It means no due process done in a non-transparent way. It also implies some corrupt and sinister conspiracy.
24. Putting the word “疑” before the term means “suspected”, but the whole document needs to be read as a whole to gauge the effect:
“I would also add that it is immaterial that the defamatory imputation is conveyed by suggestion, even in a hypothetical or question form. It is the effect, not the form, of the language that is the criteria (Gatley Libel and Slander (9th Ed) pp 82-83 para 3.15).” (per Yuen J. at 601 B-C Eastern Express Publisher Ltd v Mo Man Ching Claudia [1998] 2 HKC 593)
25. Although the 1st Words started with a hypothetical and open question (“Why is it that only one management company reply to the tender?”), the alleged facts and arguments presented afterwards are all one sided:
a. this has never happened before in Allway Gardens;
b. The management contract was “suspected to be internally decided” (or “suspected to be pre-determined”) for Urban, and this provided “no choice” to the residents but to accept a 35% increase in price;
c. the plaintiff never used an open tender but only used “invited tender” twice, if the first invited tender “failed” with only Urban replying, they should have switched to open tender.
26. There has been no attempt to provide any facts or alternative explanations which might show that there might “have perfectly legitimate / good reasons” involving no “criminal / corrupted / malicious act or conspiracy” etc.. Further, on the actual document, there were words underlined, in bigger prints or in bolder prints.
27. The total effect was to lead the mind of a hypothetical reasonable reader to the one conclusion. That the defendant has put a proposition that began in an apparent open question did not change that she was actually asserting a positive fact: that there was a conspiracy by the plaintiff in favouring Urban by not having an open tender, and that was the answer to “why only Urban replied to the tender”, and what was worst, this conspiracy would result in a significant rise in management fees that the residents had “no choice” but to pay to their dire detriment.
28. As for the 3rd Words, the defendant admitted that she did say these to the Reporter and confirmed the accuracy of her quotes. The term “內定” also appeared. But instead of having the word “疑” before the term, it stated “猶如” which means “it is like” or “effectively”, clearly above a mere suspicion. Taking the 3rd Words as a whole, the defendant was criticizing that, by not holding an open tender after the first invited tender, the plaintiff effectively has “內定” (“internally decided” or “pre-determined”) that Urban would win the tender.
29. As such, I find that the natural ordinary meanings of the 1st and 3rd Words are defamatory.
Grounds of defence
30. The defendant contended that she had employed her knowledge on several alleged documents, matters and events and argued that she was entitled to make the 1st and 3rd Words by reason of justification and / or fair comment.
31. These were pleaded in the Defence and also listed under paragraph 12 of the Defendant’s Opening Submission. I need not go into every detail of every matter in this judgment but suffice to say that I have considered all of them. I will briefly discuss some of these matters below.
Suspected adjustment of proposal rewards
32. The defendant claimed she was informed in late 2016 that the then Incorporated Owners Committee (the “9th IOC”) had caused or allowed Urban to “revise” or “re-submit” their tender proposal to enable them to present the lowest proposed award amongst the other tenders. But she failed to provide any supporting evidence or source of her information.
33. This allegation was also not put to the plaintiff’s witnesses Ms. Cheung Yuen Shan (“Ms. Cheung”) and Mr. Chiu under cross-examination. Ms. Cheung, in particular, confirmed that she was a committee member of the 9th IOC.
34. As such, I think this was simply groundless rumours.
Comments on the tender appraisal notice
35. In the 2016 tender exercise, the 9th IOC had prepared an “tender candidates appraisal notice” for distribution to the residents which the defendant claimed favoured Urban amongst the remaining 7 candidates. She alleged that the 9th IOC gave favourable comments to Urban despite, amongst others, it was proposing less staff than the required number.
36. Ms. Cheung had explained that the comments on each candidate was not solely based on the proposed tender price and number of staff of each candidate but also interviews with each candidate regarding their proposals. For example, Urban was able to offer more qualified and licenced personnel in the managerial grade.
37. I find this explanation reasonable.
Complaints against Urban
38. The defendant also raised various complaints alleging that the management service provided by Urban was not satisfactory (e.g. water leakages not duly repaired, uncollected rubbish, attitudes of some staff). However, she has not adduced any evidence (including any documentary evidence like photographs) to support these. Further, Madam Cheung also provided reasonable explanations of the situations.
39. I do not find convincing evidence that the management service provided Urban was not satisfactory under the circumstances as alleged.
Inconsistent attitude towards full renovation of Allway Gardens
40. The defendants claimed that in 2014, a civilian organisation 荃威花園維修關注組 (“the Organisation”) had opposed the proposed full renovation of Allway Gardens by the then IOC (“2014 IOC”, which the defendant supported or befriended), arguing that there was no need for such. The defendant alleged that Mr. Chiu was behind the Organisation but Mr. Chiu denied this.
41. The defendant alleged that there was a smearing campaign which resulted in many members of the 2014 IOC being voted out. Then, in July 2018, the Organisation and another organisation which Mr. Chiu was involved in were now in full support for a full renovation. The defendant also alleged that some of the members of the plaintiff are in the Organisation.
42. The defendant failed to produce any evidence to support these allegations. In any case, I would think that there may be many good reasons why there was an apparent “change of mind” regarding the need of renovation between 2014 and 2018, which was not a short period of time.
43. Further, and more importantly, I fail to see any connection between this alleged change of mind of some organisations and the plaintiff secretly favouring Urban (which is the crux of the defence). It would be a very far-fetched conspiracy to suggest that an organisation started a residents’ chatroom to “overthrow” an existing IOC for the sake of installing a new management company so that this new management company could take advantage of the full renovation project. The defendant has not produced any evidence to support such a conspiracy which required quite a lot of people to be “in with the know”.
Decrease of the plaintiff’s net assets
44. The defendant also alleged that the net assets of the plaintiff has dropped from HK$12.9 million to HK$5 million since the replacement of the 2014 IOC. The defendant did not adduce any supportive evidence.
45. Further, Ms. Cheung has explained that there was a history of bank account being frozen during the dispute after the replacement of 2014 IOC which resulted in various outgoing payments in arrears (e.g for cleaning, security and management companies) and deterioration of the general conditions of Allway Gardens. After the Land Tribunal case resolved the matter in the favour of the 9th IOC, a lot of money was used to pay off outstanding arrears and repairs etc.
46. Again, I fail to see the connection between “a decrease in the net asset of the plaintiff” with “the plaintiff secretly favouring Urban” and the defendant has provided no evidence or explanation of any link.
Increase of 2018 management fee
47. The defendant alleged that the increase of management fee of 15% effective on 1 June 2018 was unreasonable and question the properness of the survey conducted by the 9th IOC which claimed that that a 15% increment was the most preferred rate of increase.
48. However, in the notice issued to the residents at the time, the plaintiff had explained that the increase in management fees was needed due to new statutory rules expected to come into effect in 2019 and 2020. These rules had required more stringent management measures.
49. The defendant never challenged the information provided in this notice nor provide any evidence to support why she thinks the increase was unreasonable. She has also failed to provide any evidence to challenge the result of the survey.
Drastic increase in the proposed rewards
50. The defendant claimed that there was a drastic increase (i.e. 34.4%) in the proposed rewards to be made to Urban for the contract from 1 February 2019 to 31 January 2022 compared to the previous contract period.
51. Ms. Cheung explained that such an increase was justifiable because of the addition of manpower and the new statutory requirement from the Property Management Services Authority. She also provided other reasons for the increase e.g. that Urban gradually discovered the extent of dereliction and repair in need.
52. The defendant has not provided any evidence to challenge these explanations and again, there is a big gap in evidence linking “there was an increase in management fees” and “the plaintiff was secretly favouring Urban”.
Suspicious circumstances regarding the invitation tender
53. This was perhaps the main point raised by the defendant. She said it as much in the 3rd Word: when the first invitation tender “failed” (or that only Urban replied), the plaintiff should have used an open tender method, and not doing so was “effectively” a way of the plaintiff “pre-determining” the winner to be Urban.
54. The defendant has suggested many “suspicious” circumstances. I need not go into every one but I will discuss some examples below.
55. The defendant claimed that it was suspicious that the only company being invited from the previous 2016 Open Tender was Urban. Ms. Cheung explained that the plaintiff wanted to maintain a higher standard to ensure quality management and quoted the bad experience of using an unsatisfactory security service company. Instead, the plaintiff now invited some of the bigger and more reputable management companies to tender. Mr. Chiu further explained that by using invitation tender, the plaintiff could wean out those obviously unqualified candidates and save administrative time and effort.
56. I see nothing suspicious about that.
57. The defendant also claimed that it was suspicious that, of all the 11 invited companies, only Urban was not a subsidiary of a major developer. The defendant referred to the website of some of these management companies and argued that these would generally (or some exclusively) only managed estates developed by their own holding companies.
58. Ms. Cheung explained that the members of the plaintiff had simply put their heads together to suggest some of the bigger and more reputable management companies as candidates. She could not remember whether anyone had checked the background of these companies.
59. Mr. Chiu in fact showed evidence that Urban might be related to New World Development Company Limited, and that another invitee, Kai Shing Management Services Limited, did provide management service to some housing estates by the Housing Authority.
60. But here is the “common sense” test: even if the defendant was correct that each and every one of the 10 management company’s website only showed them managing solely their parent company’s own developments (the defendant did not show that), unless the plaintiff had people sitting in the management (or otherwise had insider knowledge or influence over the management) of each of those 10 companies, how would the plaintiff know with any certainty beforehand that not one single company would decide to change its practice and expand its business?
61. As such, the defendant was simply advancing another conspiracy theory: that the plaintiff somehow held a crystal ball into the business decision minds of some 10 of the biggest management companies in Hong Kong, so it knew right from the beginning that all 10 companies would turn down the tender invitations.
62. Of course, the defendant produced no explanation or evidence of how this could be done. I would rather think that the ability to conduct such research, to reach out and connect in such depth into the minds of the management of 10 such companies would be the stuff of spy thrillers or the products of the minds of conspiracy theorists.
63. And this is another “common senses” test: even assuming that this kind of “connection” was even possible, why would the plaintiff go into such time, effort and trouble, all for a “show” to fool the residents of Allway Gardens into thinking that there was a due process when in fact Urban was “pre-selected”? And why “stage” a second round of tender instead of inviting all 10 “sure-refusal” companies in one go since the plaintiff knew all this beforehand?
64. Pulling oneself a little way back to reality would tell one that there must plenty of easier ways to “pre-determine Urban”: e.g. inviting fewer candidates, inviting less reputable or unsuitable ones, or inviting the ones previously rejected, or not bothering with a second round of tender etc.
65. Indeed, the mere fact of the sheer number of sizable and reputable management companies invited for tender would make this “pre-determine Urban” conspiracy highly unlikely and beyond the capability of members of any incorporated owners’ committee.
66. I would say that the mind-set of a conspiracy theorist was fully demonstrated here: the defendant has identified a set of patterns of events (through observation and some fishing exercise etc.) and then retrospectively construct a conspiracy theory that appeared to fit the pattern (which would show the plaintiff in bad light) without any consideration as to the actual evidence linking the events, without applying any common sense, and without realising that a pattern could often be pure co-incidental occurrences or in any case have more probable (and less sinister) explanations.
67. The defendant also alleged that the plaintiff had not followed section 3.2 Code of Practice on Procurement of Supplies, Goods and Services issued by the Secretary for Home Affairs as the authority under the Building Management Ordinance (Cap. 344).
68. However, I agree with Mr. Cheung that the version of this code relied upon by the Defence came into effect on 1 September 2018, that is, after the tender process in question. Further, section 3.2 provides “MCs are advised to…adopt open tender…” so clearly that was only a recommendation.
69. In all, for all the allegations raised by the defendant that the plaintiff had “favoured” Urban, I find that they are either groundless with no supporting evidence, or that reasonable explanations could be provided by Ms. Cheung and Mr. Chiu. They were simply co-incidental and circumstantial matters with no evidence of any sinister motive. With repeated fishing exercises and without bothering to seek any explanation from the plaintiff, the defendant had simply exploited such situations to construct conspiracy theories for a smearing campaign.
The defence of justification
70. In an action for defamation, it is trite that:
“…a defamatory imputation is presumed to be false. Therefore, the burden is on the defendant to show that the imputation is substantially true.” (Gatley on Libel and Slander 12th Ed., paragraph 11.4)
71. As stated above, I find that the defendant has failed to discharge this burden showing that there was any truth or substantial truth in the 1st and 3rd Words. (see Oriental daily Publisher Ltd. V Ming Pao Holdings Ltd [1999] 4 HKC 354 (CFI) at 369F – 371B).
72. Even if the defendant claimed that she was reflecting the concern of some residents, by the repetition rule, there is no justification to repeat the defamatory statement even if she has disclosed the source (which of course she has not done so) (see Stern v Piper [1997] QB 123).
The defence of fair comment
73. This is a 2-stage test:
“Was the comment “fair”? There is a two-stage approach – first. There is the so-called “objective” stage, in which the issue is whether the words are capable of being fair comment. The burden of proof is on the defendant. The second stage is the so-called “subjective” stage, if the words are capable of being fair comment, the defence fails if the defendant was actuated by malice (where the burden of proof is on the plaintiff).” (Eastern Express Publisher Ltd. v Mo Man Ching Claudia [1998]2 HKC 593 at 604I to 605B)
74. One important feature for the “objective” stage is that “the comment must be based upon facts which are true” (Cheng & Another v Tse Wai Chun (2003) 3 HKCFAR 339 at page 347).
75. As analysed above, much of the “facts” were groundless rumours, selective evidence, or matters without supportive evidence as to its truth, so any “comments” based on such were as far from being “objectively fair” as it could be, and were in reality simply conspiracy theories retrospectively constructed to fit a certain pre-conceived narrative in a smearing campaign.
76. Further, I would think that by not seeking any communication or explanation from the plaintiff, the defendant also demonstrated malice: the defendant repeatedly claimed that her role as a district councillor was to reflect the views and concerns of (some of) the residents of Allway Gardens, but yet she admitted that she had not contacted the plaintiff personally to communicate these concerns. As such, she had not allowed the plaintiff any opportunities to explain and reply to these concerns.
77. Instead, the defendant was waging a mud-throwing campaign against the plaintiff (the 9th and 10th IOC), including the use of loud hailers and disrupting proceedings during residents’ meetings. Much time in court has been spent in the evidence regarding the defendant’s various disruptive and unpleasant behaviours during such meetings which I need not repeat in details here.
78. The defendant’s motive was self-evident: she admitted that she had good personal and public relationship with the members and chairperson of the former IOC whom she claimed were unseated by a smear campaign waged by certain members of the plaintiff and Mr. Chiu. She also saw Mr. Chiu as a political rival from an opposing camp. In fact, Mr. Chiu replaced the defendant as the district counsellor of Allway Constituency in 2019.
79. As such, it is obvious that the defendant has never been interested in finding out the truth (or at the very least, she was reckless as to the truth), she was more interested in constructing and spreading conspiracy theories to create misunderstanding and distrust against Mr. Chiu whom she saw as a political rival, and against others (like the plaintiff) whom she had a personal vendetta to settle.
80. There is therefore a clear element of dishonesty on the part of the defendant.
81. The defendant admitted herself that an important role of a district counsellor was to provide service, to resolve differences and to act as a bridge in the community. It is indeed a sad observation that, in the desperation to win that position, the defendant completely betrayed that role.
82. As such, the defence of fair comment must fail.
The defence of qualified privilege
83. The defendant claimed on various occasions that, in her position as a district councilor, she was simply reflecting the concern or complaints of some residents regarding their welfare. This was public interest. Thus, although the defence of qualified privilege was not specifically pleaded or listed in the Agreed Statement of Issue in Dispute, the defendant argued that there were sufficient particulars pleaded for this defence to apply.
84. Of course, it is trite that there are occasions that “the law recognises a need for frank and uninhibited communication which outweighs the need to protect reputation”, but this defence “can be defeated if the plaintiff proves that the defendant was actuated by malice.” (Jonathan Lu v Paul Chan Mo Po (2018) 21 HKCFAR 94, Lord Reed at paragraphs 13)
85. Thus, the court’s finding of malice is fatal to this defence. As stated above, I am not convinced that the defendant was really that concerned about “public interest” in the publication of the 1st and 3rd Words. Instead, I found that the defendant’s purpose was more for her own private and personal reasons.
86. As a passing comment (which in no way affect any considerations in this judgment), this is perhaps a microcosm of the sad and divisive society at present. The defendant clearly felt that she (and those in the previous IOC that she supported or befriended) has been subjected to a smearing campaign and so got voted out, and one might speculate that she felt justified to employ similar tactics in opposition, perhaps more for attempting to win back the popularity contest and settling personal vendetta than for serving the good of the community. I would lament that, in the “good old days”, people involved in this case might have co-operated to serve the community, and I have no doubt that the community would have benefited much more than what now transpired.
Quantum
87. I have considered that:
“The preliminary function of an IO was to perform its functions under the Building Management Ordinance (Cap. 344) and the building’s deed of mutual covenants. When a defamatory statement was made against the IO, it might have the effect of discrediting its integrity or it ability to discharge its functions, such as to lead people of ordinary sense to the opinion that it conducted its affairs inefficiently or improperly.” (Tung Lo Court (IO) v Tsui Wai Yip [2015] 4 HKLRD 397)
88. There are no guidelines for damages in libel cases and each case must depend on its own facts and circumstances.
89. In the Tung Lo Court (IO) case, the Court of Appeal awarded HK$200,000. However, the accusations (and innuendos) made by the defendant in the current case were less severe than the Tung Lo Court (IO) case. Also, the current case involved less documents published. On the other hand, the 3rd Words, published in Ming Pao, had a large readership and thus the publication was beyond the residents of the property concerned.
90. In Tsui Sang Hung Sammy v Lui Hok Nang which involved 2 newspaper publications with accusations framed in similar ways (use of the word “suspected” etc.), the awards were HK$100,000 for general damages and HK$20,000 for aggravated damages.
91. After considering all the circumstances, I would award HK$80,000 as damages.
Costs
92. There be an order nisi that the costs of the action be to the plaintiff, 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 28 days of this order.
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(Harold Leong)
District Judge
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Mr Cheung Yiu Leung and Mr Lui Ka Man Gary, instructed by Messrs Messrs Bond Ng Solicitors, for the plaintiff
Mr Chu Wai Kei, instructed by Messrs Jimmie K.S. Wong & Partners, for the defendant
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