XCHRX MAK SHIU TONG v. YUE KWOK YING AND ANOTHER

1998, No. A3758

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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JUDGMENT

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The Proceedings

1. On 11 March 1998, the plaintiff issued a writ and a statement of claim against the defendants in which he claims, amongst other things, damages for defamation.

2. The defendants were not legally represented. The first defendant filed a defence. The first defendant was refused leave to represent the second defendant. The second defendant did not file a defence. On 17 April 1998, I granted judgment against the second defendant in default of a defence.

3. On 3 June 1998, the second defendant's solicitors filed a notice to act on its behalf. On 2 July 1998, the second defendant issued a summons seeking an order that the default judgment be set aside.

4. On 28 July 1998, my clerk received a letter from the second defendant's solicitors in which it was said that Mr Kwong thought that the application to set aside would be better dealt with by a judge able to read Chinese. My clerk ascertained from the Clerk of Court that no such judge was available on 29 July 1998. When the matter was called, Mr Kwong made the same suggestion to me. I told him what the Clerk of Court has said. He suggested that the matter be adjourned for this purpose. The translation of the relevant documents had been arranged by the plaintiff, and Mr Kwong did not suggest that he challenged these translations. Mr Wong submitted that the second defendant had not translated the documents so that I would not be able to deal with the matter. Mr Kwong admitted as much. I do not think this is a proper way to approach these matters. Mr Kwong was unable to convince me that I was unable to deal with the matter. As I told him, I deal with many cases involving translations of Chinese documents. I refused the application to adjourn the matter for this purpose.

5. Towards the end of his argument, Mr Kwong made another application. He applied to adjourn the matter to enable the second defendant to adduce further evidence and for the matter to be heard afresh by the judge able to read Chinese. He made this application, perhaps, because I had made it clear to him that I was not impressed with his client's case. No reason was given to me to explain why the second defendant had not already adduced the evidence he now thought he needed. No explanation was given to me to show that I was not unable to deal with the matter. No reason was given as to why the matter should be heard afresh by another judge. I refused this application also.

The Application

6. Mr Kwong does not suggest that the judgment was in any way irregular. He accepts that the setting aside is a matter of discretion guided by the view that the second defendant should show more than an arguable case; he should demonstrate that his case has a real prospect of success with evidence that carries some degree of conviction. Mr Kwong suggests, however, that I should adopt a "robust" approach, whatever that may involve.

7. Mr Kwong accepts that the words published of the plaintiff were defamatory; he agreed with my suggestion that the thrust of the words was that the plaintiff had implemented a dishonest, fraudulent scheme relating to a construction project in mainland China.

8. Throughout his argument, Mr Kwong repeated that the only issue was the second defendant's case that the words were justified and were fair comment. However, during Mr Wong's argument, Mr Kwong said that he had overlooked part of the second defendant's affirmation filed in support of the application in which the second defendant said "there is no evidence at all" that the second defendant published the words through the first defendant acting in the course of this employment. Quite apart from the fact that it is the second defendant who must demonstrate this defence with evidence, and it has made no attempt to do so, it is quite clear that, when appearing before Waung, J on 22 July 1998, the first defendant said that, when he uttered the words, he was speaking on behalf of the second defendant.

9. So, it seems, Mr Kwong was right in the first place in saying that the only issue was justification and fair comment. In seeking to show that he has a case on this, the second defendant does nothing but produce some documents written by others. There is no need to go into these documents in detail. They say nothing that would go towards establishing justification. Even if one assumes that the facts stated in those documents are true, they go not one inch towards showing that the words spoken were justified or fair comment. What is also significant is that the second defendant issued a legal opinion on 30 January 1996 regarding the disputes over the construction project. This opinion is totally inconsistent with the second defendant's present assertion that the plaintiff was conducting a fraudulent scheme. When I put this to Mr Kwong, he could say only that it was possible that the second defendant was "mistaken" in its opinion. This is Mr Kwong's submission; the second defendant does not attempt to explain how it could be that it said in 1996 that the failures in implementing the project were justifiable but now says that the project failed because the plaintiff was a dishonest man.

10. In summary, the second defendant does not, and does not appear to have made any serious effort to, show any prospect of success in defending the plaintiff's claim. So, there is no point in setting aside the judgment. There is no basis on which I should exercise my discretion to set aside the judgment.

The Result

11. In the result, the second defendant's application to set aside the default judgment fails and is dismissed with costs.

JK FINDLAY

Judge of the High Court
Court of First Instance