LO KIT SING STEVEN v. CHAN KA LING CHARINE

HCA2505/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.2505 OF 2003

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J U D G M E N T

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1. I have before me an application for interlocutory injunction by the plaintiff (who was a close social and business friend of the defendant and they have lived together for a number of years) to restrain the defendant from repeating allegedly defamatory statements that she had made to the press which had been published.

2. The subject matter of the complaint is set out in what is said to be "the 1st Words", "the 2nd Words" and "the 3rd Words" in the summons. There has been an agreement between the parties, in that, in relation to what had been identified as C and D of the 1st Words that there would an undertaking that these words would not be repeated.

3. What divides the parties is the primary case of the plaintiff that the defendant should be enjoined from uttering or repeating the 1st, 2nd and 3rd Words altogether apart from the C and D words, and that application for injunction is resisted by the defendant.

4. There is no doubt that if one reads the affidavit of the defendant fairly that the defendant is saying that she has proper justification for making those statements. There are basically two sets of transactions between the parties : one is in relation to a Sai Kung property and one is in relation to what has been said to be the casino project. I have no doubt that the substance of the defendant's case is that in relation to the casino project, the plaintiff owes her a lot of money, $10 million at least.

5. Mr Pow, for the plaintiff, in his usual skilful and elegant submission to me, said that if one looks at the contemporaneous documents carefully, one can see that her allegation cannot stand up. Basically, the case of the plaintiff is that there have been settlements between the parties in relation to both transactions. In relation to the Sai Kung property project, there was a settlement of payment of $5 million, and in relation to the casino project, there was a settlement by the payment of $1 million.

6. There is of course no dispute that the total payment of $6 million had been received. What is in dispute was whether the $6 million that was received was in relation only to the Sai Kung project and that there had been no payment of the casino project (that is, the case of the defendant) or whether the plaintiff is correct that there is a payment and settlement under both projects. The alleged money owing by the plaintiff to the defendant will be the subject of a counterclaim and if Mr Pow is right, then he is asking me basically to enter summary judgment for the plaintiff to say that there is no case for recovery of the debt at all. There is no way I can reach that conclusion.

7. The burden of proof for a plaintiff to gag a defendant in relation to allegedly defamatory statements, which is sought to be justified, is a very high one. I think Mr Pow recognizes this and therefore he takes a very narrow point.

8. In the circumstances, I am not satisfied that a full or primary injunction order should be granted, and therefore subject to the undertaking that has been given, the summons of the plaintiff is refused.