WONG SUI FUNG v. DR. YIP SIU KEUNG

HCA 5595/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 5595 OF 2000

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J U D G M E N T

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1. This is a defamation suit between two neighbours.

2. The Plaintiff is a senior Chinese language officer of the Official Languages Agency ("OLA"). The OLA is a government agency responsible for providing translation and interpretation services to all government bureaus and departments. Under the posting policy of the OLA, Chinese language officers are posted to different bureaus and departments for a period of about 3 years. In February 2000, the Plaintiff was newly posted to the Chinese Language Unit of the Education and Manpower Bureau where she worked under a chief Chinese language officer. Her main duties were to translate documents from Chinese to English and vice versa. She also assisted the chief Chinese language officer in running the Chinese Language Unit consisting of 4 members, ensuring that it provided effective translation and interpretation services to the whole bureau. According to the Plaintiff whose evidence in this respect I accept, the Chinese Language Unit was not substantively involved in any education policy making process or teaching work.

3. The Plaintiff is (and was at all material times) a co-owner of House D of Greenland Villas in Shatin, the New Territories. The other co-owner (Madam Sham) is the Plaintiff's mother-in-law, with whom the Plaintiff and her husband (Mr Li) and their children reside together in House D.

4. Greenland Villas was developed in the 80s. It comprises 9 two-storey houses, units A to J. Its management is governed by a Deed of Mutual Covenant. Originally, pursuant to the terms of the Deed of Mutual Covenant, the estate was managed by a professional manager (Chiap Hua). Management fees were paid by the various house owners to and collected by Chiap Hua. However because of several burglaries that unfortunately happened in the estate, and the resulting arguments between some of the owners and Chiap Hua regarding Chiap Hua's standard of management, Chiap Hua eventually resigned as the manager in 1989. After Chiap Hua's resignation, there was an attempt by the owners of Greenland Villas to form an owners' incorporated, but for reasons that I need not go into, the attempt was unsuccessful.

5. It was in those circumstances that the owners of the estate formed a somewhat informal owners' committee to provide basic management services to the estate, such as the employment of a caretaker and the provision of garbage collection service. In due course, Mr Li, the husband of the Plaintiff, no doubt (to my mind) as the representative of House D's co-owners, became the so-called "chairman" of the committee, whereas Mr Cheng (owner of House F) became its treasurer.

6. According to Mr Cheng's evidence which I have no hesitation in accepting in its entirety, he was in such capacity responsible for all financial matters, including the collection of management fees from the various house owners, regarding the provision of basic management services in the estate. According to his evidence, Mr Li, who essentially represented House D, was not particularly good in terms of payment of management fees. But I need not dwell on what happened prior to 1998. What cannot be seriously disputed, and I so find on the evidence before me, is that from January 1998 until July 2000 when eventually an owners' incorporated was formed, House D fell into arrears with management fees in a total sum of no less than $89,000.

7. On the evidence before me, there cannot be any doubt also that at least starting from late 1999, some of the more active owners in the estate including Mrs Chau of House J, Ms Chan of House H, and Mr Cheng of House F, were desirous of forming an owners incorporated, out of a genuine wish to better manage the estate in general, and to tackle the growing problem of outstanding management fees in particular. In relation to management fees, I have no difficulty in accepting the evidence of the Defendant's witnesses, particularly that of Mr Cheng's, that the fact that Mr Li (of House D) was in arrears with management fees, despite his status as the so-called "chairman" in the estate, had set a less than satisfactory example to others, thereby aggravating the problem of outstanding management fees in the estate.

8. I have also no doubt on the evidence before me that at least Mr Li himself, for reasons that I will come back to, was not in favour of the formation of an owners' incorporated, or at least the immediate formation of the owners incorporated until certain matters in his agenda had been dealt with. I will deal with the attitude of the Plaintiff in due course.

9. The Defendant, a medical doctor in private practice, purchased House E, which is next door to House D occupied by the Plaintiff and her family, in 1999. Rather extensive renovation work was carried out by the Defendant starting from late 1999; the work was completed in March/April 2000, and the Defendant and his wife moved into House E in April 2000. Although there is some controversy amongst the parties regarding when the relationship between the two (new) neighbours turned sour ( - according to the Plaintiff's case, it went sour when the Defendant started raising the party wall separating the gardens of the two adjacent houses despite Mr Li's and his family's objections; according to the Defendant and his wife, it happened subsequently when the Defendants raised the boundary walls between the garden of House E and two open car parking spaces belonging to House D and House E respectively and when the Defendant rejected Mr Li's proposal to swap the two open car parking spaces).

10. In any event, things quickly turned real bad when the Defendant, on 9 May 2000, wrote a letter of "complaint" against the Plaintiff to the Secretary for Education and Manpower. The letter was copied to the Financial Secretary as well as the Secretary for Civil Service. The Plaintiff considered that the letter was defamatory of her, and the present action was commenced less than 1 month after the writing of the allegedly libellous letter on 2nd June 2000.

11. Before I go into details of the alleged libel, to complete this very general introduction of the background involved in the present case, I should mention that the Plaintiff and Madam Sham (as applicants and owners of House D) also took the Defendant (as respondent) to the Lands Tribunal in respect of various building works that were said to have been carried out by the Defendant in respect of House E in breach of the Deed of Mutual Covenant.

12. On the other hand, the owners incorporated (of which the Defendant has become the honorary secretary) has since commenced another claim against the Plaintiff and Madam Sham (as co-owners of House D) in the Lands Tribunal regarding arrears of management fees.

13. I now turn to the alleged libel. The allegedly libellous letter was written in the following terms:

"Dr. Yip Siu Keung
House E
Greenland Villa
8-12 Ma Yeung Path
Kau To Shan
Shatin

...

9 May 2000

Secretary for Education and Manpower
Hong Kong SAR

Dear Sir,

Re:	Complaint on civil servant Ms. Wong Sui Fung of the Chinese Language Unit, Education and Manpower Bureau

 

The above lady is the owner of House D Greenland Villa, 8-12 Ma Yeung Path, Kau To Shan, Shatin. She is a civil servant under the Education and Manpower Bureau, and through that, she has made a second assignment with the financial secretary since 1997.

I am a new owner of the House E of the same estate since Dec 1999 and since I moved in, Ms. Wong and her husband, Mr. Li, had repeatedly disturbed our quiet family life.

The most dreadful experience was in mid April when suddenly one night I found Ms Wong and her husband bringing out two LP cylinders and a chain and put it in front of my house next to my car in open space in midnight, this clearly indicates their intention to threaten the life of my family.

Later I also found out that they had also tried to threaten other neighbors in the past especially the newcomers so much so that many of them are scared of them.

Only after I found out that they have not been paying the management fee of the estate for over 2 years leading to a sum of nearly one hundred thousand HK dollars, did I realize the reason behind all these acts.

Since this estate consists of only nine houses, with quite a few residents only, Ms Wong has been trying to stop others from complaining her the unlawful act of not paying the management fee.

They also tried very hard to prevent us from forming the owners' incorporation for they know that once the lawful body is formed, they will be chased after for the sum of money, for they have successfully firing the management company of the estate years ago and there has been no lawful body maintaining the estate since then.

As a civil servant, she did not abide to the law.

As a civil servant, she had used the taxpayers' money to buy the house, and she had assigned the house partially under the financial secretary incorporation.

I think Ms Wong has abused her right and this has definitely violated the civil servant's regulation, and obviously the Deed of Mutual Covenant.

As you are part of the owner in legal aspects please investigate on the above matter urgently before we try to bring this to court.

I await your earliest reply.

Thank you for your prompt action.

Yours truly,

[signature]

Dr. Yip Siu Keung.

c.c.	Financial Secretary
	Secretary for Civil Service"

 

(Those parts of the letter which are said to be defamatory are italicised)

14. According to the pleaded case of the Plaintiff, in their "natural and ordinary meaning", the defamatory words in the letter under complaint meant and were understood to mean:

"4. In their natural and ordinary meaning the said words meant and were understood to mean:-

(a) the Plaintiff and her husband repeatedly disturbed the Defendant's quiet family life;

(b) one night in mid-April 2000, the Plaintiff brought 2 LP cylinders and a chain and placed it outside the Defendant's house and next to the Defendant's car and thereby threatened the life of the Defendant's family;

(c) the Plaintiff had threatened neighbours, especially newcomers in the past;

(d) the Plaintiff has unlawfully refused to pay management fees;

(e) the Plaintiff tried to stop others from complaining about her non-payment of the management fees;

(f) the Plaintiff tried very hard to prevent the owners of the estate to form an owners' incorporation with a view to avoiding payment of management fees;

(g) the Plaintiff did not abide by the law;

(h) the Plaintiff partially assigned the property she purchased by using taxpayers' money; and

(i) the Plaintiff abused her rights, the civil servants' regulations and the Deed of Mutual Covenant."

(Para. 4 of the Amended Statement of Claim)

15. Furthermore, according to paragraph 5 of the Amended Statement of Claim,

"5. By reason of the abovementioned matters in paragraph 4, the cumulative effect of the said words is that the Plaintiff is uncivilized, is not a law-abiding citizen and is generally unfit to hold a civil service position in the HKSAR Government. The words were written with malicious intent to defame the Plaintiff."

16. According to Mr Lok, counsel for the Plaintiff, paragraphs 4 and 5 contain and set out the libellous meanings that his client complains about in the present action. Mr Lok relies on each of the meanings pleaded in paragraph 4 as a libel in itself; he also says that the "cumulative effect" of these libellous imputations pleaded in paragraph 4 is pleaded in paragraph 5, which is also defamatory.

17. The Defendant, represented by Mr Edward Chan SC together with Mr Paul Leung, disputes the alleged libellous imputations relied on by the Plaintiff in paragraphs 4 and 5; the Defendant also relies on three specific defences, namely, justification, fair comment and qualified privilege, on all of which the Defendant bears the burden of proof.

18. In reply, and in so far as fair comment and/or qualified privilege may otherwise be made out, the Plaintiff relies on expressed malice (in its respective meanings relating to the two defences).

19. Although I have heard much factual evidence from both sides, including that given by many of their neighbours (which in itself is a rather remarkable fact, given that there are only 9 houses in this relatively small upper-class estate), which concerned to a no small extent various previous incidents relating to management of the estate, payment or non-payment of management fees, quarrels between the neighbours, alleged unauthorized building works that were (or are still) present in the estate, disputes and arguments relating to the formation of the owners incorporated, and so forth, I find it much more convenient and fruitful to focus on the allegedly libellous letter, and will only refer to all these matters and the related evidence if and when necessary; indeed this has been the approach of both counsel during final submission, which I find to be most helpful in focusing one's mind on the real issues in this case.

20. In fact, I find it convenient to examine the various alleged defamatory meanings pleaded in paragraphs 4 and 5 of the Amended Statement of Claim one by one, in order to determine first, whether the words in the letter bear the alleged defamatory meaning or imputation, and if the answer is in the affirmative, secondly, whether the defence of justification (where applicable) is made out. This has been the approach of both counsel. Moreover, I should record this: Although in his pleading, the Defendant pleads his own list of the meanings and imputations of the words contained in his letter, and seeks to justify those meanings and imputations, and although those meanings and imputations do not always tally with that pleaded in paragraphs 4 and 5 of the Amended Statement of Claim, Mr Lok, on behalf of his client, has confirmed with this court during final submission that apart from whether his client's refusal to pay management fees was "unlawful" and the amount of outstanding management fees at the material time, the Plaintiff does not take any pleading point as such. In other words, the Plaintiff does not object to the Defendant's seeking to justify the alleged imputations and meanings that have been pleaded in paragraphs 4 and 5 of the Amended Statement of Claim by way of defence to the Plaintiff's action, which was indeed the approach of Mr Chan in his final submission. (Mr Chan did not argue justification by reference to the meanings and imputations pleaded in his client's Re-amended Defence; he did it by reference to paragraphs 4 and 5 of the Amended Statement of Claim.)

21. One further general remark is this: It must be firmly remembered that paragraph 4(a) to (i) of the Amended Statement of Claim contains and sets out the alleged "natural and ordinary meaning" of the allegedly defamatory words in the letter pleaded in paragraph 3. In other words, what is contained in paragraph 4 itself is the substance, gist or the "sting" of the alleged libel. This is important because during final submission, Mr Lok from time to time fell into the error of seeking to derive further hidden (as it were) meanings from what has been expressly and specifically pleaded in paragraph 4. For instance, at one stage, he sought to argue in relation to paragraph 4(g) that what was meant to be alleged was that "as a civil servant", the Plaintiff did not abide by the law, when in fact paragraph 4(g), which is supposed to contain the natural and ordinary meaning, simply says, "the Plaintiff did not abide by the law". Of course, the intention of Mr Lok was apparent without the suggested qualification, the door for running a defence of justification was indeed left wide open. However, as Mr Lok accepted in final submission, that was not something permissible on his existing pleading; as he put it, he was "stuck with" his own pleading. Certainly, there was no application to amend pleading.

22. Moreover, Mr Lok accepted in final submission that paragraphs 4 and 5 contain all the libellous meanings and imputations that his client relies on in this action; he cannot rely on any other meaning or imputation that one may be able to derive from the letter in question, which has not been pleaded in paragraph 4 or 5. So for instance, although his final submission made reference to the alleged ulterior motive of the Plaintiff and her husband (i.e. the avoidance of payment of management fees) in doing the acts complained of in the earlier part of the letter (i.e. disturbing and threatening neighbours), that was never pleaded in paragraphs 4 and 5 of the Amended Statement of Claim, and accordingly Mr Lok could not rely on it. All this Mr Lok, very fairly, accepted in final submission.

23. So much for the general observations.

Paragraph 4(a): "the Plaintiff and her husband repeatedly disturbed the Defendant's quiet family life"

24. I agree with Mr Lok that this is a natural and ordinary meaning or imputation of the alleged defamatory words in the letter. Read in its context, the same is defamatory.

25. Turning to justification, it is accepted by all sides that the most important incident in the present context is the so-called LPG cylinder episode.

26. On the evidence, it is clear that initially Mr Li on behalf of House D agreed to let the Defendant's renovation contractor use House D's open car parking space adjacent to House E's garden for placing renovation material and waste. It is also reasonably clear that by February 2000, that permission had been withdrawn. The parties disagree on whether the Defendant or his contractor continued to use House D's open car parking space for that purpose thereafter. It should be remembered that as mentioned above, in fact near that part of House E's garden, there are two adjacent open car parking spaces, belonging to House D and House E respectively. One night in April, shortly after Dr Yip and his wife moved into House E, Mr Li took two (allegedly) empty LPG cylinders together with a metal chain from House D to the open car parking space of House D in question. He was accompanied by his mother (Madam Sham). According to Mr Li, he was unhappy with the continued use of House D's open car parking space by the Defendant and his contractor after the withdrawal of consent. He wanted to mark the common boundary of House D's open car parking space by means of a metal chain. He planned to do so by placing the two empty LPG cylinders near the common boundary of the two parking spaces and tying the two ends of the metal chain to the two LPG cylinders. According to Mr Li, he intended no harm to the Defendant and his family. He simply wanted to cordon off, as it were, House D's open car parking space.

27. The clinking sound created by dragging the two metal LPG cylinders from House D to the open car parking space and the ensuing bitter arguments (see below) at near mid-night in such a quiet neighbourhood, alerted not only the caretaker, but also some of their neighbours. Whilst Mr Li was busy with tying the metal chain to the two cylinders which were placed within the boundary of House D's open car parking space, the Defendant and his wife came out from their house alarmed, and no sooner had they seen what Mr Li had placed next to their car parking space and the vehicle they parked there than the Defendant and his wife protested vigorously about the obvious danger of placing two LPG cylinders next to their vehicle and car parking space, just in front of House E's garden. This led to heated arguments between the parties.

28. The crucial dispute here is whether the Plaintiff took part in the argument. The Plaintiff denies that she ever took part in it. Her evidence is that she was unaware of her husband's intention and plan beforehand. She was, like some of her neighbours and the caretaker, alarmed by the noises, and went out together with a relative to see what was happening. She and the relative stood at a distance, and did not join in the argument. She was there for about 5 minutes and returned home together with her relative (who gave evidence at trial and confirmed the Plaintiff's evidence).

29. The caretaker who gave evidence said he was also alarmed by the noises, and went to see what happened. After he found out that it had nothing to do with any possible burglary, and there was no immediate danger of any violence, he left. He was there for about 5 minutes and did not witness the incident from beginning to end. The neighbour who gave evidence on the incident managed to assist the court no better than the caretaker in this regard, i.e. the participation, if any, of the Plaintiff in the argument.

30. On the other hand, both the Defendant and his wife insisted in evidence that although initially the Plaintiff was not there, at a later stage she joined her husband in arguing with the Defendant and his wife. She supported her husband's action in placing the two LPG cylinders at House D's car parking space, she also insisted that they had the right or freedom to do whatever they wanted to do within their own car parking space, despite the protests against the possible danger to House D posed by the presence of the LPG cylinders. According to the Defendant and his wife, the whole incident lasted about 20 minutes to half an hour. They were most scared by the incident and could not sleep the whole night. They did not know who their new neighbours were, and dared not call the police, though they felt threatened about their safety by Mr Li's and the Plaintiff's action.

31. According to Mr Li, some time afterwards, he had a further reflection on the matter and felt it unwise to place the LPG cylinders at the car parking space, and eventually (in the same night) he retrieved the cylinders to House D.

32. Having seen and heard the witnesses, and considered carefully the contents of their evidence, the inherent probabilities of the matter, and the relevant circumstances, I prefer the evidence of the Defendant and his wife. I find as a fact that the Plaintiff, despite her denial, did take part in the latter part of the argument between the two couples, and she played a supportive role in the argument. In my judgment, from any angle, this was a serious argument between the two neighbours, and I find it improbable that the Plaintiff would have left her husband and mother-in-law at the scene to argue with the Defendant and his wife. The evidence of the caretaker and the relative are not inconsistent with this finding because they only spent several minutes at the scene and left before the argument ended. The allegedly libellous letter written less than 1 month after the incident specifically referred to the Plaintiff as being involved in the LPG cylinder incident, although I have taken careful note of the fact that not everything alleged in the letter was factually correct and I make no such assumption at all here.

33. From my observation of the Plaintiff, I find her to be a highly supportive and submissive wife. She is good to her husband and mother-in-law, whereas her husband (Mr Li), with respect, is of a very rather overbearing character. I have taken all this into account and as I said, I find it improbable that she would have left her husband and mother-in-law to argue alone with the Defendant and his wife; I find it more probable that she re-joined them and supported her husband in the argument, after taking her relative back to House D for rest (after all this was a private personal family matter which she might not like to involve her relative in).

34. Having come to such a factual finding, I have no doubt in concluding that this is an incident, and indeed a serious one, of disturbing the Defendant's quiet family life. I have expert evidence before me about the danger of placing LPG cylinders (albeit "empty" ones) at or near car parking spaces and vehicles. I have no difficulty in accepting the evidence, which to me is really commonsense (except that part about the danger of supposedly empty LPG cylinders). I have also no doubt that the placing of LPG cylinders in a car parking space is in contravention of the provisions in the Deed of Mutual Covenant.

35. Apart from this incident, the Defendant also relies on several other incidents, namely water leakage near the party wall separating the two houses, the spraying of water in the car washing process at the front of House D into House E's boundary because of the way House D's car was parked, and the presence of a roll of barbed wire near the (unfenced) common boundary of the two houses.

36. The Plaintiff argues that the water leakage was caused by the raising of the party wall by the Defendant which led to subsistence of land and damage to the underlying water pipe within House D. That may well have been so. But I agree with Mr Chan that that was no excuse for House D's owners not repairing the leaking pipe which caused flooding within House E. Indeed, this amounted to an offence under section 28 of the Waterworks Ordinance (Cap. 102). I do not think one wrong can justify another. The water leakage itself, in my judgment, constituted a disturbance of the Defendant's quiet family life.

37. As regards the spraying of water, I accept the Defendant's side's evidence. The evidence is that as some sandbags were hung inside the front garage of House D for Mr Li's practice of kung fu or boxing, the vehicle parked at the garage of House D had its front sticking out of the garage entrance. In those circumstances, during car washing, if one was not careful, given the proximity of the two houses, water would easily be sprayed into House E. As I said, I accept the Defendant's side's evidence; I find that this was also an incident of disturbance of the Defendant's quiet family life.

38. Finally, as regards the barbed wire, in more senses than one, this was a repetition of the placing of dangerous articles near the boundary with House D. The barbed wire incident happened a short time after the LPG cylinder incident. The roll of barbed wire was placed at foot level very near to the (unfenced) common boundary of the two adjacent private lanes of the two houses. I totally reject Mr Li's evidence that the roll of barbed wire was placed there for an hour or so for an innocent reason. I accept the Defendant's and his wife's evidence that it had been there for more than a day, after they first heard a complaint from their maid. It was placed there sufficiently long for the Defendant's wife to be able to take a photo of it although she had to go to work everyday. Mr Li said he bought the barbed wire for installation at a height to improve the security at House D. Interestingly, according to his own evidence, he subsequently found the idea impracticable and dropped it. I reject his evidence.

39. Again this was an incident of disturbance of the Defendant's quiet family life.

40. Now of course the complaint in paragraph 4(a) was directed not only at Mr Li but also the Plaintiff herself. I have already made a finding that in relation to the LPG cylinder incident, the Plaintiff was substantively involved in it. In relation to the three other incidents, on a balance of probabilities, I find that the Plaintiff was aware of them, but she simply turned a blind eye to them, or more correctly in relation to the barbed wire incident, she simply allowed her husband to do what he liked. As a co-owner of House D, in those circumstances, I find that she should also be held responsible for those incidents.

41. As regards her knowledge of what her husband (who seems to have more spare time to spend in the estate than she) did in the estate (including House D itself), in my judgment, given the rather wordy, inquisitive and uncompromising character of Mr Li, I find it highly probable (and find as a fact) that Mr Li was in the habit of telling his wife matters concerning the estate and the neighbours, on which he had an opinion (and I am sure there must have been many such matters).

42. I reject Mr Lok's argument that the word "repeatedly" means more than 4 incidents. In my judgment, the 4 incidents are sufficient to warrant the use of the word "repeatedly".

43. In conclusion, I find that the defence of justification has been made out in relation to paragraph 4(a).

Paragraph 4(b): "one night in mid-April 2000, the Plaintiff brought 2 LP cylinders and a chain and placed it outside the Defendant's house and next to the Defendant's car and thereby threatened the life of the Defendant's family"

44. I agree that this is a natural and ordinary meaning of the words complained of. It is defamatory.

45. Mr Lok accepted in final submission that the complaint here is not so much about the carrying of the 2 LPG cylinders to the car parking space, but rather the placing of the cylinders at that place, particularly despite the protests of the Defendant and his wife about the possible danger posed by the presence of the cylinders.

46. In my judgment, given my above finding, the carrying and the placing of the 2 cylinders at the open car parking space of which the Plaintiff was a co-owner by Mr Li must be regarded as having been ratified, adopted or endorsed by the Plaintiff when she joined in the argument at the later stage. According to the Defendant's and his wife's evidence in this regard which I accept, the Plaintiff supported Mr Li in the quarrels.

47. In my judgment, the first part of paragraph 4(b) has been justified. As regards the threatening of the life of the Defendant's family "thereby", I have no difficulty in accepting the Defendant's and his wife's evidence that at the time they felt threatened about their own personal safety. Objectively speaking, that feeling was also reasonable. One must not only consider the position of the Defendant and his wife whilst they stayed inside the house, one should also consider the situation when they were to use their open car parking space next to the 2 cylinders for normal vehicular purposes.

48. I have not overlooked that the latter part of paragraph 4(b) may be viewed as a comment rather than a fact. But of course, if the comment is "correct", which in my view it is, the defence of justification is made out: Gatley on Libel and Slander (9th ed) paras 11.5 and 12.3.

49. In conclusion, the defence of justification is successful here.

Paragraph 4(c): "the Plaintiff had threatened neighbours, especially newcomers in the past"

50. I accept that this is an imputation that can be derived from the letter, and is defamatory in meaning.

51. The Defendant relies on 3 incidents, i.e. the slamming of the door in Mrs Chau (of House J) which so scared the poor lady who slipped at the door entrance of House D and hurt her waist; the threat made by Mr Li to those owners present at an owner's meeting about the formation of the owners incorporated in March 2000 that if despite his objections, the owners incorporated was formed, he would use the outstanding management fees that House D owed in litigation with his neighbours; and the hammering of a metal gate by Mr Li after midnight outside House J which scared Ms Chan of House H next door.

52. On the first incident, the door was slammed by Mr Li. According to Mrs Chau's evidence which I prefer and accept, the Plaintiff was present inside the house doing some ironing work. According to Mrs Chau, the Plaintiff was not friendly to her when she tried to pay House D a visit (about calling a meeting for the formation of the owners incorporated). Mr Li scolded Mrs Chau for having demolished a basketball post installed near House J. The Plaintiff supported her husband and the look on her face was hostile. Mr Li then slammed the door, and it so scared Mrs Chau that she slipped and fell, and injured herself.

53. Having considered the evidence, whilst I have no hesitation in accepting Mrs Chau's evidence, I do not think that in all fairness, one can categorize the incident as one in which the Plaintiff "threatened" her neighbour (although Mrs Chau was indeed a relatively new neighbour at the time). The door was slammed not by the Plaintiff but her husband as an occupier of House D. It could not have been a premeditated act on the part of Mr Li (and still less that of the Plaintiff), as Mrs Chau's visit was an impromptu one. I do not think what the Plaintiff had said or the hostile look on her face could be said to be threatening per se. I reject this incident as justification for the libel.

54. As regards the threat to sue the neighbours or the owners incorporated made by Mr Li in the meeting in March, I accept that it was a threat. I also accept that Mr Li was present at the meeting as a representative of House D's owners. I do not accept the disingenuous argument run by the Plaintiff in relation to the presence of Mr Li in this type of owners' meetings as merely a representative of his mother who is also a co-owner of House D.

55. As regards the last incident - hammering of the gate, on the evidence before me, I am not persuaded that the Plaintiff had played any part in it. No doubt, Mr Li's most inappropriate act (done after midnight) caused momentary alarm to Ms Chan and her husband, and in that sense it may perhaps be said that he threatened Ms Chan (who however was not a new neighbour), but the same cannot be attributed to the Plaintiff.

56. Read in the context, although paragraph 4(c) does not say "other neighbours" as in the letter but simply "neighbours", it must, when read in context, exclude House E itself. On that basis, only one incident can be made out. I do not think the Defendant has managed to justify the substance or the gist of the libel. In conclusion, the defence of justification fails in relation to paragraph 4(c).

Paragraph 4(d): "the Plaintiff has unlawfully refused to pay management fees"

57. I agree that this is a valid imputation. Read in its context, it is libellous.

58. In relation to the defence of justification, as I said, I have no doubt that management fees were owing at the time when the letter was written. Insofar as the amount is relevant (here Mr Lok insists on his pleading objection: see paragraph 3(d) of the Re-amended Defence), I am prepared to accept that $89,000.00 is sufficiently close to $100,000.00 in the context of the present case. However, the real difficulty for the Defendant here lies in the word "unlawfully". In relation to this, Mr Lok again holds the Defendant to his pleading. In his pleading, the Defendant has only placed reliance on paragraph 4(f) of the Deed of Mutual Covenant to justify the allegation of unlawfulness in the refusal to pay management fees.

59. Having read clause 4 as a whole in the context of the Deed of Mutual Covenant, I agree with Mr Lok that the obligation to pay management fees under clause 4(f) is premised on there being a manager to collect the management fees, who has been appointed to act as the manager pursuant to the provisions in the Deed of Mutual Covenant. The problem with the estate after the resignation of Chiap Hua and prior to the formation of the owners incorporated was precisely that there was no properly appointed manager to run the estate's management. So strictly speaking, Mr Lok is right in saying that there was no proper manager or person to collect management fees at the material time. Therefore, clause 4(f) of the Deed of Mutual Covenant cannot supply the necessary element of unlawfulness in the defence of justification here.

60. This is, of course, not to say that House D need not pay management fees. I totally agree with Mr Chan in his final submission that given the circumstances of the present case, one could easily work out the legal basis for an obligation on House D to pay management fees, for instance, an implied contract, restitution and so forth. Indeed, to be fair to Mr Lok, he does not seriously dispute with all this. His argument is that none of all this has been pleaded and relied on in relation to the defence of justification.

61. I agree with Mr Lok. On existing pleading, this is not open to the Defendant. No application to amend was ever made. In those circumstances, I must conclude that the defence of justification fails in relation to the allegation of unlawfulness, which constitutes the substance or the gist of the complaint here, and for that reason, the defence of justification also fails in respect of paragraph 4(d).

Paragraph 4(e): "the Plaintiff tried to stop others from complaining about her non-payment of the management fees"

62. I agree that this is a valid imputation.

63. However, I agree with Mr Chan that this sub-paragraph per se, even read in its context, is not defamatory. It should be remembered that no innuendo is relied on here. It is not alleged that the means adopted (which have not been specified) by the Plaintiff were unlawful or otherwise reprehensible. Nor is it alleged that the attempt to stop others from complaining was actuated by any ill or unlawful motive or consideration.

64. In the present context, in any event, this allegation does not add much to the next allegation contained in paragraph 4(f).

Paragraph 4(f): "the Plaintiff tried very hard to prevent the owners of the estate to form an owners' incorporation with a view to avoiding payment of management fees"

65. I agree that this is a valid imputation. I also agree that read in its context, it is defamatory.

66. So far as justification is concerned, in relation to the first part of the allegation (the prevention of the formation of the owners incorporated), I have no doubt on the evidence that Mr Li, as supported by the Plaintiff, tried very hard to prevent the formation of the owners incorporated. Although the Plaintiff was only present in one of the meetings (the one held on 2 May 2000), I have no doubt that on the facts the participation of her husband in the earlier meetings and the attitude he took regarding the formation of the owners incorporated can be attributed to her. I find that Mr Li was present in those meetings and expressed those views only in his capacity as the representative of the owners of House D.

67. Moreover, the Plaintiff was personally present in the meeting on 2nd May. Whilst eventually she and her husband voted in favour of the formation of the owners incorporated, it cannot be seriously denied on the evidence that prior to the eventual voting, Mr Li opposed vigorously the formation of the owners incorporated. Although the Plaintiff was relatively quiet in the meeting, I have no difficulty in accepting the assessment of the witnesses that she fully supported the stance of her husband in opposing the formation of the owners incorporated. At the very least, her silence (as per her evidence at trial), in the light of the vigorous opposition raised by her husband, and given her co-ownership in House D, may be reasonably regarded as her acquiescence in the attitude of Mr Li.

68. Regarding the alleged ulterior motive in opposing the formation of the owners incorporated (i.e. avoidance of payment of management fees), that I am not so sure about. In this regard, Mr Chan argues that he relies on the defence of fair comment, because he says this part of paragraph 4(f) is a comment rather than a fact. In other words, he does not seek to justify this part of paragraph 4(f). I will deal with fair comment in the latter part of this judgment.

69. Nonetheless, for the sake of completeness, I should say that on the question of justification regarding this part of paragraph 4(f), I am quite unable to conclude on the evidence before me that this is a correct, as opposed to a fair, comment. In any event, as I said, Mr Chan does not rely on justification in relation to this part of paragraph 4(f), and I need not make any definite finding on it.

70. Before I turn to the rest of paragraph 4, I should note that paragraph 4(f) does not qualify the attempts to prevent the formation of the owners incorporated by reference to the unreasonableness of the attempts, although that may be a justifiable imputation from the letter. In those circumstances, the reasonableness or otherwise of Mr Li's objection is not in issue, and I need not deal with, for example, the merits of Mr Li's grounds of objection as set out in, for instance, p. 30 of Bundle C (a letter he wrote to the relevant authorities opposing the intended formation of the owners incorporated). The net effect of the Plaintiff's pleading is that it makes life much easier for the running of the defence of justification in relation to the first part of paragraph 4(f), which as I have concluded is successful. Mr Lok accepted in final submission that he was bound by his own pleading.

Paragraph 4(g): "the Plaintiff did not abide by the law"

71. I accept that this is a valid imputation and is defamatory.

72. Again, paragraph 4(g) suffers from being too loose. It simply says that the Plaintiff did not abide by the law - without any qualification, notwithstanding that in my view, the letter could permit the placing of restrictive qualifications regarding this particular imputation, thereby making the defence of justification more difficult to run.

73. As it is, in my judgment, it can be easily justified, and I need only refer to Mr Chan's argument based on the contravention of section 28 of the Waterworks Ordinance relating to water wasting by reason of the non-repair of the leaking water pipe to conclude that the defence of justification is successful here. Of course, Mr Chan also refers to the contravention of the Deed of Mutual Covenant and the provisions in the Buildings Ordinance (Cap. 123) regarding the alleged presence of illegal structures in House D. In view of my conclusion, I need not lengthen this judgment by making reference to these further arguments.

Paragraph 4(h): "the Plaintiff partially assigned the property she purchased by using taxpayers' money"

74. I accept that this is a valid imputation.

75. But I disagree that the imputation is defamatory at all. I reject Mr Lok's argument that when read with the rest of the letter, there is an (unpleaded) suggestion in paragraph 4(h) that the Plaintiff has improperly used taxpayers' money.

76. In my judgment, this is a misreading of the letter. The sentence in question is simply saying, in a rather clumsy way, that the Plaintiff purchased House D with the assistance of housing benefits that she enjoyed as a civil servant, and in return the property was mortgaged to the Financial Secretary Incorporation as security. In any event, the imputation is fully justified. There is nothing in paragraph 4(h).

Paragraph 4(i): "the Plaintiff abused her rights, the civil servants' regulations and the Deed of Mutual Covenant"

77. Again the Plaintiff is a victim of her own pleading. I accept that "the Plaintiff abused her rights" is a valid imputation and is also defamatory. But I reject as a viable imputation the rest of paragraph 4(i), namely "the Plaintiff abused ... the civil servants' regulations and the Deed of Mutual Covenant". What was alleged in the letter was that the Plaintiff abused her right, "and this has definitely violated the civil servants' regulations, and obviously the Deed of Mutual Covenant". In relation to the civil servants' regulations and the Deed of Mutual Covenant, the complaint in the letter was the violation of the provisions in the civil servants' regulations and the Deed of Mutual Covenant. There was no allegation of any "abuse".

78. I do not accept that in its natural and ordinary meaning, the relevant sentence in the letter meant or was understood to mean an allegation of abuse.

79. Mr Lok, if I have not understood him incorrectly, eventually accepted during final submission that abusing is different from violating, and in any event, regardless of Mr Lok's position, that is my judgment. There was no application to amend. Again, the Plaintiff is "stuck with" her own pleading.

80. In relation to the Plaintiff abusing her rights, Mr Chan on behalf of the Defendant relies both on the defence of justification and the defence of fair comment.

81. In my judgment, Mr Chan is correct with his submission that the Plaintiff as a co-owner of House D has abused her rights in that whilst on the one hand, she and her family enjoyed fully the management services provided in the estate, on the other she as a co-owner refused to pay management fees on the highly technical argument that there was no lawful manager to collect them. On the evidence, as I said, I do not accept that the Plaintiff can divorce herself from the position of Mr Li. The situation is particularly objectionable when Mr Li himself was the "chairman" of the estate, albeit that it was only an informal title.

82. In my judgment, the defence of justification has been made out.

Paragraph 5: "the Plaintiff is uncivilized"

83. I accept that this is a valid (and defamatory) imputation, particularly when one bears in mind the LPG cylinder incident. By insisting to place the LPG cylinders in the open car parking space, notwithstanding that the obvious danger posed by the cylinders has been expressly and vigorously pointed out by the Defendant and his wife, at the very least, the Plaintiff and Mr Li may be said to have resorted to an uncivilized means to further their argument regarding the open car parking spaces. To that extent, one may say that the Plaintiff was "uncivilized".

84. But there also lies the answer to the Plaintiff's complaint. Given my finding above, in the present context, the imputation was correct. In other words, the defence of justification can be made out, although to be fair, I must point out that Mr Chan in his final submission only argued that this is not a valid imputation, and therefore the question of justification does not arise.

85. Technically speaking, the defence of justification, which has not been pleaded in relation to the present imputation, does not assist the Defendant. But in my view, this is in any event an appropriate instance for applying section 26 of the Defamation Ordinance (Cap. 21), which has been pleaded and which Mr Chan has placed reliance on. Put another way, given my finding that in relation to paragraph 4(b) (regarding the LPG cylinder incident) the defence of justification has been made out, section 26 is applicable. Section 26 reads as follows:

"In an action for libel or slander in respect of words containing 2 or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges."

86. In my judgment, the LPG cylinder incident gave rise to the allegation in paragraph 4(b) as well as the allegation that the Plaintiff is an uncivilized person in paragraph 5. On the facts of the present case, in my judgment, section 26 is applicable.

Paragraph 5: "the Plaintiff is not a law-abiding citizen"

87. This is no different in substance from paragraph 4(g) which has already been dealt with above.

88. There is nothing in it.

Paragraph 5: "the Plaintiff is generally unfit to hold a civil service position in the HKSAR Government"

89. In my judgment, this is too wide an imputation, although I agree that based on the natural and ordinary meanings pleaded in paragraph 4, the Plaintiff's character, temperament, ethics and personal integrity have been put in issue. I also bear in mind the pleaded context, namely a complaint against the Plaintiff as a civil servant. However, in my judgment, it is a quantum leap to say that the imputation in the letter is that she is "generally unfit" to hold "a" civil service position in the government. Other milder imputations that one can think of include the imputations that she is of doubtful fitness for her job in question, that she is liable to be disciplined by the civil service, and so forth.

90. In conclusion, based on the evidence before me, I reject the alleged imputation (which is no doubt defamatory).

Summary

91. In summary, in my judgment, the Plaintiff's case of defamation as pleaded in paragraphs 4 and 5 of the Amended Statement of Claim fails, save and except paragraph 4(c) (threatening neighbours), (d) ("unlawfully" refusing to pay management fees), and (f) ("with a view to avoiding payment of management fees"), subject to the Defendant's further defences of fair comment and qualified privilege.

Qualified privilege

92. For reasons that will become immediately apparent, I will deal with the defence of qualified privilege first.

93. The essence of the defence has been well summarized by the leading authority on the subject, Gatley, at paras. 14.1, 14.2, 14.3, 14.5 and 14.55:

"14.1 Introductory. There are occasions upon which, on grounds of public policy and convenience, less compelling than those which give rise to absolute privilege, a person may yet, without incurring liability for defamation, make statements about another which are defamatory and in fact untrue. On such occasions of privilege a person is protected if the statement was fairly warranted by the occasion (that is to say, was reasonably necessary to achieve the purpose for which the law grants the privilege) and so long as it is not shown that he made the statement with malice, i.e. knowing it to be untrue or with some indirect or improper motive. These occasions are called occasions of qualified privilege, for the protection which the law, on grounds of public policy, affords is not absolute but depends on the honesty of purpose with which the defamatory statement is made.

...

14.2 The reason for the defence. Statements published on an occasion of qualified privilege "are protected for the common convenience and welfare of society". "It was in the public interest that the rules of our law relating to privileged occasions and privileged communications were introduced, because it is in the public interest that persons should be allowed to speak freely on occasions when it is their duty to speak, and to tell all they know or believe, or on occasions when it is necessary to speak in the protection of some (self or) common interest." "In such cases no matter how harsh, hasty, untrue, or libellous the publication would be but for the circumstances, the law declares it privileged because the amount of public inconvenience from the restriction of freedom of speech or writing would far out-balance that arising from the infliction of a private injury." "It may be unfortunate that a person against whom a charge that is not true is made should have no redress, but it would be contrary to public policy and the general interest of business and society that persons should be hampered in the discharge of their duty or the exercise of their rights by constant fear of actions for slander. "It is better for the general good that individuals should occasionally suffer than that freedom of communication between persons in certain relations should be in any way impeded. But the freedom of communication which it is desirous to protect is honest and kindly freedom. It is not expedient that liberty should be made the cloak of maliciousness." "The principle on which these cases are founded is a universal one, that the public convenience is to be preferred to private interests and that communications which the interests of society require to be unfettered may freely be made by persons acting honestly without actual malice notwithstanding that they involve relevant comments condemnatory of individuals." If the defendant is malicious, that is, if he uses the occasion for some other purpose than that for which the law gives protection, he will not be able to rely on the privilege. ...

14.3 Fairly warranted by the occasion. To gain protection, the statement must be fairly warranted by the occasion, that is to say it must be reasonably necessary for the performance of the duty or the protection of the interest which underlies the privilege. This may exclude the publication of some irrelevant matter, but it also means that the court may have to balance the relative harm to the defendant if the statement is not published and to the plaintiff's reputation if it is.

...

14.5 "The occasions [of qualified] privilege can never be catalogued and rendered exact" but most privileged occasions under the common law may be very broadly classified into one of two classes: where the maker of the statement has a duty (whether legal, social or moral) to make the statement and the recipient has a corresponding interest to receive it; or where the maker of the statement is acting in pursuance of an interest of his and the recipient has such a corresponding interest or duty in relation to the statement or where he is acting in a matter in which he has a common interest with the recipient. "It may be accepted as a well-established rule that some duty or interest must exist in the party to whom the communication is made as well as in the party making it. The duty or interest may be common to both parties, but this is not essential. It is enough if there is a duty or interest on one side, and a duty or interest, or interest or duty (whether common or corresponding or not) on the other." Two formulations have become almost canonical in this area. First, the Toogood v Spyring Parke B. stated the law in the following terms. "In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another, and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases the occasion prevents the inference of malice which the law draws from unauthorized communications, and affords a qualified defence depending on the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society." ...

Secondly, and more briefly, Lord Atkinson said in Adam v Ward: "A privileged occasion is ... an occasion where the person who makes a communication has an interest, or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential".

...

14.55 Complaints and redress. Just as statements made in order to recover stolen property or find a criminal may be seen as made out of duty and in aid of public justice or in furtherance of the interests of the victim, so too complaints about the conduct of those in authority or with responsibilities to the public may be seen as made from a duty to bring the facts to the attention of those who control or are concerned with the conduct in question, or in furtherance of the interests of those affected in securing redress. ...

Thus, it is not only for the victim, in his own interests, but it is the duty of everyone, in the interests of public efficiency and good order, to bring any misconduct or neglect of duty on the part of a public officer or employee, or any public abuse, to the notice of the proper authority for investigation. Any complaint or information as to such misconduct, neglect of duty, or abuse is privileged, provided it is made in good faith to the person or body who has the power or duty to remove, punish or reprimand the offender, or merely to inquire into the subject-matter of the complaint. Any citizen who bona fide believes that wrong has been done has the right and duty to bring the alleged fact before the proper authority for investigation. In doing so he exercises an undoubted privilege which it is not in the public interest to penalise."

94. The crux of the dispute between the parties is, predictably, whether the writing of the letter was a qualified occasion. The emphasis here is on the occasion, although the content of the letter would also be relevant regarding irrelevant publication (Gatley at para. 14.59 et seq.) as well as malice, which defeats the qualified privilege (see Gatley, Chap. 16, and the First Supplement to the 9th edition of Gatley, Chap. 16). All this turns on the duty and interest of the author and the recipient in question.

95. In the present case, there are three named recipients (the privilege, if applicable, would also carry with it an incidental privilege regarding publication to secretaries and so forth - according to the Plaintiff's estimate, about ten odd people should have seen the letter, although according to her pleading the letter is said to have been published to three recipients only).

96. In my judgment, for all practical purposes under the present heading, the Secretary for Education and Manpower and the Secretary for Civil Service may be treated on the same footing.

97. The letter was no doubt a complaint letter against the Plaintiff as a civil servant. The rubric of the letter said so in so many words. Having heard the parties' arguments carefully, in my judgment, the crux of the dispute lies in whether this letter could be properly regarded as a complaint letter against a civil servant based on relevant grounds of complaint. I do not think counsel suggested that in the case of a complaint letter against a civil servant, the complaint must be well-founded before the occasion is covered by qualified privilege. Otherwise, the qualified privilege would be rather illusory, and the underlying public policy in protecting genuine complaints would be defeated. However, it would seem to me, on authorities and on reasoning, that setting the test as low as a genuine bona fide complaint subjectively believed by the complainant to be justified, is unwarranted by the underlying public policy and inapt as regards the protection of a person's reputation and good name.

98. In terms of the facts in the present case, it cannot be seriously denied that even on the Plaintiff's own case, the letter was a letter of complaint, and the "cumulative effect" of the various imputations was that the Plaintiff "is uncivilized, is not a law abiding citizen and is generally unfit to hold a civil service position in the HKSAR Government" (paragraph 5 of the Amended Statement of Claim). I have already said above that in relation to the last bit, the allegation of general unfitness is too strong. That notwithstanding, it is indeed an admission by the Plaintiff on her own pleading that the letter is about her fitness to remain in office. In any event, as I said, in my judgment, the more correct imputation, although milder than the one pleaded in paragraph 5 (generally unfitness), still has much to do with her office in the civil service.

99. This being the case, how can it be argued that the two Secretaries in question did not have an interest to receive the letter, and the Defendant as a citizen did not have a social or moral duty to make the complaint? Mr Lok, however, argues that this per se cannot be a conclusive answer. One must look at the grounds relied on in the complaint letter. If those grounds were entirely irrelevant to the ultimate charge made against the Plaintiff, then not only would it indicate malice on the part of the Defendant, it would also go to the applicability of the privilege in the first place.

100. I agree that Mr Lok's submission has some support of the authorities. I do not pretend that I can better state or summarize the law than Gatley at paras. 14.59 to 14.60, which read as follows:

"14.59 Irrelevant statements not privileged: general principle. Privilege will not protect matter which cannot be said, broadly speaking, to be relevant to the occasion. There is, however, some theoretical difficulty here about the relationship between the occasion and malice. The traditional approach is to say that irrelevant matter is simply outside the privilege. "The fact that an occasion is privileged", said Lord Loreburn in Adam v Ward "does not necessarily protect all that is said or written on that occasion. Anything that is not relevant and pertinent to the discharge of the duty or exercise of the right or the safeguarding of the interest which creates the privilege [or, in the words of Lord Atkinson, 'foreign and irrelevant subjects not pertinent to the discharge of the duty, or the protection of the interest which forms the basis of the privilege'] will not be protected... The judge has to consider the nature of the duty or right or interest and to rule whether or not the defendant has published something beyond what was germane and reasonably appropriate to the occasion... A man ought not to be protected if he publishes what is in fact untrue of someone else when there is no occasion for his doing so." "If, accordingly, and in so far as the communication deals with matter not in any reasonable sense germane to the subject-manner of the occasion, the protection is gone: the occasion with its privilege does not reach a communication upon this foreign and totally unconnected matter." "The exercise of privilege on one matter gives no protection to irrelevant libels introduced into the same communication." The occasion remains privileged and protection is conferred (in the absence of malice) upon those portions of the statement which relate to the occasion: it is only the irrelevant and foreign matter which is not privileged.

However, in Horrocks v Lowe, a case on malice and qualified privilege, Lord Diplock spoke in the following terms of the inclusion of irrelevant matter in a statement otherwise privileged: "Logically it might be said that matter [which is irrelevant because it is not necessary for the fulfilment of the particular duty or the protection of the particular interest upon which the privilege is founded] falls outside the privilege altogether. But if this were so it would involve the application by the court of an objective test of relevance to every part of the defamatory matter published on the privileged occasion; whereas, as everyone knows, ordinary human beings vary in their ability to distinguish that which is logically relevant from that which is not and few, apart from lawyers, have had any training which qualifies them to do so. So the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory matter which upon logical analysis could be shown to be irrelevant to the fulfilment of the duty or the protection of the right upon which the privilege was founded. As Lord Dunedin pointed out in Adam v Ward the proper rule as respects irrelevant defamatory matter incorporated in a statement made on a privileged occasion is to treat it as one of the factors to be taken into consideration in deciding whether, in all the circumstances, an inference that the defendant was actuated by express malice can properly be drawn. As regards irrelevant matter the test is not whether it is logically relevant but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, though believing it to be true, realised that it had nothing to do with the particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive." On the face of it, this amounts to saying that even irrelevant matter does not fall outside the privilege (which would be a question for the judge), but can only be evidence of malice (a question for the jury); or that the test of irrelevance is not "objective" but "subjective", which in practical terms has much the same effect because it would blur the boundaries between irrelevance and malice. This, it is submitted, is difficult to reconcile with the clear terms of four of the five judgments in Adam v Ward and even Lord Dunedin, upon whom Lord Diplock relies, admitted that "if the defamatory statement is quite unconnected with and irrelevant to the main statement which is ex hypothesi privileged, then I think it is more accurate to say that the privilege does not extend thereto, than to say, though the result may be the same, that the defamatory statement is evidence of malice". Perhaps the two approaches can be reconciled (though there is some difficulty in accommodating the last sentence of the passage quoted above) by saying that what Lord Diplock is concerned with is what is "logically relevant", i.e. that which is relevant when subjected to a close analysis such as would be given to the relevance or admissibility of evidence. This is a valuable caution against too restrictive an approach to the language which may be used on a privileged occasion, which would seriously reduce the protection of qualified privilege. If, however, the statement is wholly extraneous to the matter in question, it is difficult to see why protection should be granted even if the defendant, from eccentric reasons of his own, believes it is relevant, bearing in mind that even "gross, unreasoning prejudice" does not amount to malice...... The more extreme view would seem to strike at the very purpose for which privilege is granted. It is not the law that a person is protected in making statements about another which he believes to be true but that he is so protected where he is acting in the discharge of a duty or interest which the law considers to outweigh the protection of reputation and it is well established that where that duty or interest does not exist (or there is no reciprocal interest in the person addressed), privilege is not created merely because the defendant believes it to exist. It is difficult to see why this principle should be abandoned merely because the defendant has an interest or duty in respect of some entirely different matter about which, on that occasion, he speaks...

Excess and exaggeration not irrelevance. The test of relevance is not whether the statement complained of is strictly necessary for or logically relevant to the discharge of the duty or protection of the interest which is the foundation of the privilege. Where the statement has any reference to the subject-matter of the privilege, or is in any way pertinent or germane to it, it is material only as evidence of malice to take the case out of the privilege. "There may be an excess of the privilege in the sense that something has been published which is not within the privileged occasion at all, because it can have no reference to it... But when there is only an excessive statement having reference to the privileged occasion, and which, therefore, comes within it, then the only way in which the excess is material is as being evidence of malice. In none of the cases on the subject, so far as I know, has it been held that the privilege is taken away when there has been such an excessive statement, unless the jury has found that there was malice.""

See also the two leading cases of Adam v Ward [1917] AC 309 and Horrocks v Lowe [1975] AC 135, both discussed in some detail in the above extract.

101. Having carefully considered the grounds of complaint relied on in the letter, in my judgment, I would not describe them as wholly extraneous or irrelevant to the ultimate complaint against the Plaintiff.

102. I also take into account the evidence that the government may take disciplinary action against a civil servant if he or she misconducts "in any manner", which is not qualified or restricted to misconduct in the performance of the civil servant's duty (Bundle C p. 102). I also bear in mind the reply by the government in relation to the present letter of complaint, which did not say that the complaint was not a proper complaint that could be entertained, but only that after investigation, the government did not see fit to take any action as it concerned the private affairs of the Plaintiff. I further bear in mind the job nature and work responsibilities of the Plaintiff. I fully take into account all this in my deliberation.

103. In my judgment, the letter, as per the Plaintiff's own pleaded case and as Mr Lok has submitted with much enthusiasm, calls into question the Plaintiff's character, temperament, ethics and personal integrity, although the evidence relied on to justify it related to her private affairs. Here, one must distinguish the relevant issues from the supporting evidence. The relevant issues here were the character, temperament, ethics and personal integrity of the Plaintiff; they were in turn relevant to whether as Mr Lok has put it, she was fit for her office or she should be disciplined, and so on. The evidence in relation to these issues may, in my judgment, come from both the Plaintiff's performance of duties as a civil servant and her handling of her private affairs.

104. All in all, I consider that the writing of the letter to the Secretary for Education and Manpower and the Secretary for Civil Service was an occasion of qualified privilege, subject to the express malice point. In so concluding, I have also borne in mind that in relation to qualified privilege, a certain degree of tolerance should be meted out to excessive and exaggerated material published on the occasion: see Gatley at para. 14.60. In my judgment, viewed as a whole, the entire letter was covered by the privilege.

105. As regards the publication to the Financial Secretary, in my judgment, given the Financial Secretary Incorporation's monetary interest in the property, there was a sufficient interest for the Financial Secretary to be made aware of the complaints, and there was a social or moral duty on the part of the Defendant as a private citizen to report the matter, regarding the non-payment of management fees.

106. I accept that on general principles, the Financial Secretary Incorporation's second charge over the property should not be affected by any charge that may result from the enforcement of payment of outstanding management fees. However, taking a general view of the matter, I am still of the view that the Financial Secretary has a sufficient monetary interest in the property to warrant receipt of information regarding non-payment of management fees.

107. What about the compliant regarding the relationship with neighbours and so forth? In my judgment, the answer lies in this: the letter, rightly or wrongly, suggested that the threatening of neighbours and so forth had an ulterior motive behind them, i.e. the stopping of the neighbours from complaining about the non-payment of management fees. Likewise, the opposition to the formation of the owners incorporated was motivated by the same ulterior motive. I have already remarked above (paragraph 22) that in relation to the first allegation, somehow this has not been made an imputation in either paragraph 4 or 5 of the Amended Statement of Claim and therefore I need not deal with it. However, in the present context, of course the focus of attention is on the letter itself, and I am bound to take into account the whole letter in deciding whether there has been irrelevant (as opposed to merely excessive) publication of matters not concerning management fees to the Financial Secretary.

108. As analysed by me above, everything in the letter boiled down substantively to the question of management fees. As such, I would not categorise the complaints regarding threatening neighbours and opposition to the formation of the owners incorporated as being extraneous to the question of management fees. I conclude, therefore, that there has not been an "entirely irrelevant and extraneous" publication to the Financial Secretary.

109. I also find that the defence of qualified privilege applies here, subject to the question of express malice.

Express malice and qualified privilege

110. Put simply, if the Plaintiff can establish that the Defendant did not write the complaint letter to the three Secretaries, believing the content of complaint to be true, or if he did so with some other extraneous or ulterior motive in mind, the privilege would not attach. In Horrocks v. Lowe at pages 150A/B to 151B, Lord Diplock explained the law thus:

" Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, "honest belief". If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. If affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognize the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be "honest", that sis, a positive belief that the conclusions they have reached are true. The law demands no more.

Even a positive belief in the truth of what is published on a privileged occasion - which is presumed unless the contrary is proved - may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled. There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant's dominant motive may have been to obtain some private advantage unconnected with the duty or the interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true.

Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. The motives with which human beings act are mixed. They find it difficult to hate the sin but love the sinner. Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that "express malice" can properly be found."

111. This is a question of fact. I have considered all the evidence before me, including the oral evidence given by all witnesses - particularly the evidence of the Defendant and his wife (after all one is concerned with what went through the Defendant's mind), the objective as well as circumstantial evidence (including the disputes and quarrels between the two neighbours both before and after the writing of the letter and the so-called video taping incidents towards the end of 2000/beginning of 2001 - which has limited probative value only despite the time devoted to it by the parties given that so much has happened since the letter of 9 May 2000), the inherent probabilities, the education, character, intelligence and expected commonsense of the Defendant, and generally the whole of the circumstances of the case.

112. I find as a fact that firstly, the Defendant genuinely and honestly believed in the truthfulness of the substantive contents of his letter; and secondly, his main purpose in writing the letter was to make a complaint against the Plaintiff as civil servant to the relevant Secretaries. As has been explained in the relevant authorities, the fact that the Plaintiff may not have been the most likable person on earth in the eyes of the Defendant is in and of itself not determinative, and the fact that the Defendant might rejoice in the government taking some action against the Plaintiff as a result of his letter of complaint is again in and of itself not conclusive on the issue in question, although they must be relevant circumstances or evidence to be taken into account in deciding the question of malice.

113. As I said, on the totality of the evidence before me, I have arrived at a finding against the plea of express malice, on which the Plaintiff bears the burden of proof.

114. In conclusion, I find that the defence of qualified privilege has been made out. It is a complete defence, and therefore the Plaintiff's action on defamation must fail.

Fair comment

115. Given my above conclusion, it is unnecessary for me to go into this defence, save for me to say that I agree with Mr Lok that in the present case, there was insufficient public interest involved, and therefore for this reason, the Defendant's reliance on the defence of fair comment must fail. I need not therefore go into the other arguments raised by both sides relating to this defence. But given my conclusion regarding qualified privilege, my view in relation to fair comment does not really matter.

Quantum

116. Again, given my above conclusion, I need not deal with this issue.

117. Suffice to say that having considered the circumstances of the case, bearing in my mind my conclusion on what libellous imputations have been made out (assuming that I was wrong in relation to the qualified privilege defence), and having considered counsel's submissions and the authorities that they have cited, I am of the view that, in case I was wrong with the defence of qualified privilege, an appropriate award in the present case is in the region of $20,000.00. (I should record that Mr Lok in his final submission only asked for damages in the region of $30,000.00 to $50,000.00, together with interest and costs on the District Court scale.)

118. Reputation is in some sense priceless, and I do not wish to make any comment on the wisdom or necessity of bringing the present action of libel, by simply judging it from the amount of damages sought, notwithstanding the obvious costs to the society in terms of the time, money and resources of the judiciary that have been expended in holding this trial of 11 days for the purpose of resolving the dispute between the parties. Nor need I mention the costs similarly in terms of the time, resources, energy and so forth of all those who are involved in this unfortunate piece of litigation, who are so obviously well-educated and who, one would have imagined, must have preferred to devote their great education, training, learning and abilities to the pursuit of more fruitful ends that may benefit the society that we all live in.

Order

119. The action is dismissed with costs to the Defendant, such costs to be taxed if not agreed (on a costs order nisi basis). With due respect to Mr Chan and his junior, I have specifically considered but decided against the grant of a certificate for two counsel. However, if either party is not happy with the costs order nisi, he or she may apply to have it varied within 14 days after this judgment is handed down, failing which the same shall become absolute.

120. My above order should not be interpreted as my being against the retaining of a silk in this case; all that I am saying is that I am not prepared to allow a claim for the fees of two counsel in this case, now that the two counsel rule has been abolished. Of course, the quantum of counsel's fees is a matter for taxation.

121. Lastly, I would like to thank counsel on both sides for their helpful assistance.