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DCCJ 1008/2012
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 1008 OF 2012
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BETWEEN
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THE INCORPORATED OWNERS OF HIU TSUI COURT |
1stPlaintiff |
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LAM KWOK PO |
2nd Plaintiff |
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and |
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LAI SING ON |
Defendant |
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| Before: Deputy District Judge R Lai in Court |
| Dates of Hearing: 3 - 6 and 24 June 2013 |
| Date of Judgment: 5 August 2014 |
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JUDGMENT
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Introduction
1. In this judgment page numbers in brackets denote page numbers of the trial bundles.
2. This is a libel action. From the names of the parties, one can tell that this action arose out of management of an estate. The estate is Hiu Tsui Court (the “Estate”).
3. The Estate was built in 1990. It is a residential estate built under the Home Ownership Scheme. The Estate consists of two 33-storey buildings. Each has 330 units, ie 10 units on each floor. The Estate’s units have three different sizes. Large size units (the “Large Unit”) account for 20%; middle size units (the “Middle Unit”) account for 40%; and the small size units (the “Small Unit”) account for the remaining 40%.
4. The 1st plaintiff is the owners incorporated of the Estate. The 2nd plaintiff was, at the material times, the chairman of the management committee of the 1st plaintiff (the “Management Committee”). He was also the owner of a Small Unit. The defendant was the owner of a Middle Unit.
5. The plaintiffs claimed that the defendant had published three letters in September and October 2008 (the “Letters”) which were defamatory of the plaintiffs by sending them to all other owners of the Estate. The first letter was dated 22 September 2008 (the “1st Letter”) (p 472). The second letter was undated but published between 24 and 29 September 2008 (the “2nd Letter”) (p 475). The third letter was dated 2 October 2008 (the “3rd Letter”) (p 476).
6. The defendant did not dispute his sending of the Letters to the other owners of the Estate but denied that the Letters were defamatory. The defendant pleaded the defences of justification, fair comment and qualified privilege. The defendant also relied on sections 26 and 27 of the Defamation Ordinance (Cap 21) to resist the plaintiffs’ claims. The defendant took issue that there was no publication in respect of the 1st plaintiff’s claim and that the 1st plaintiff had no power or duty to maintain this action.
Background
7. This dispute of the parties arose out of the drainage pipes replacement and relocation work (the “Pipe Work”) undertaken by the Estate in 2008 as part of the renovation of the Estate.
8. According to the architectural design of the Estate, some of the communal drainage pipes (the “Pipes”) were installed inside the residential flats. To repair the Pipes, the technician had to enter the residential flats to get access to the Pipes. Permission of the owners of the flats had to be obtained before the staff of the management office of the Estate (the “Management Office”) might inspect or repair the Pipes. This was found to be unsatisfactory.
9. In 2003, the Pipes in a number of the residential flats started to leak. A joint survey by questionnaire was conducted in 2003 by the then Management Committee with Miss Alice Lam (“PW Lam”), a District Council member and chief consultant to the 1stplaintiff at the material times. Joint questionnaires were issued to all the 660 owners of the Estate. Replies were received from 221 owners out of which 169 owners were in favour of carrying out maintenance work to the Pipes to resolve the leakage problem. There were 134 owners in favour of relocating the Pipes from inside the flats to public area (pp 162-163).
10. In March 2004, the then Management Committee invited a surveyors firm, LC Surveyors, to give a seminar to all the owners of the Estate on the leakage problem of the Pipes and the required remedial measures. Owners of 64 units participated in a subsequent leakage survey conducted by LC Surveyors in about April 2004. A survey report was issued by LC Surveyors in September 2004 (pp 164-182). No further action was taken by the 1st plaintiff after issuing of the aforesaid report by LC Surveyors until 2008.
11. The 2nd plaintiff was elected the new chairman of the Management Committee in an annual general meeting of the owners of the Estate held on 12 January 2008. In that meeting a resolution was passed authorizing the Management Committee to engage a consultant to oversee and supervise renovation work of the Estate (the “Renovation Work”) which included the Pipe Work. (pp 344-348) On about 25 April 2008, the 1st plaintiff appointed Kwok, Hauser and Partners Limited (the “Consultant”) as the consultant for the Renovation Work (pp 349-357).
12. In about June 2008, the Consultant prepared tender documents for the Renovation Work and invited tender from contractors (pp 367-427). A total of 13 tenders were received. By a notice dated 2 July 2008, the Management Committee gave notice to all owners of the Estate for a meeting of the owners to be held on 19 July 2008 (the “July Meeting”) (p 432). The agenda for the July Meeting (the “Agenda”) as set out in the said notice was as follow:-
“(1) 主席報告；
(2) 由工程顧問公司〝郭浩建築師事務所有限公司〞 [the Consultant] 講解本苑遷移室內公眾喉管至外牆 [the Pipe Work]，維修外牆紙皮石，加裝冷氣機集水喉工程事宜 [the Renovation Work]；
(3) 議決揀選承辦商承造本苑遷移室內公眾喉管至外牆， 維修外牆紙皮石， 加裝冷氣機集水喉工程。”
13. The Renovation Work did not confine to the Pipe Work but also included works relating to exterior walls and air-conditioners. The July Meeting was attended by 208 owners. Some of the attending owners were not sure whether a resolution was needed to approve the Renovation Work. The 2nd plaintiff decided that a resolution should be passed to approve the Renovation Work before the owners would vote to choose the contractor to be engaged for the Renovation Work. Owners holding 6,456 equal undivided shares of the Estate, representing 82.44% of the voting right of the owners attending the July Meeting voted to approve the Renovation Work (the “July Resolution”) (pp433-437). After Mr Chan Kwok Leung (“Mr Chan”) of the Consultant explained the details of the Renovation Work to the owners attending the July Meeting, the owners voted to select the contractor for the Renovation Work. Tak Cheong (Man Kee) Construction Engineering Company Limited (the “Contractor”) was selected.
14. On about 4 August 2008, the 2nd plaintiff on behalf of the 1st plaintiff signed a contract with the Contractor (the “Renovation Contract”). The contract price was $7,650,000 (pp 438-445).
15. The Contractor commenced the Renovation Work on about 20 August 2008 (p 449).
16. At a meeting of the Management Committeeheld on 28 August 2008, representatives from the Contractor and Mr Chan were invited to report the progress of the Renovation Work to the Management Committee and to answer questions from the owners of the Estate.
17. At about this time, the Management Committee received a letter dated 28 August 2008 jointly signed by the defendant and 45 other owners (the “Joint Letter”) (pp 455-459) requesting a special meeting of the owners to be convened for the following purposes:-
(1) to overturn the July Resolution;
(2) to dissolve the Management Committee; and
(3) to elect a new Management Committee.
18. As a result of the Joint Letter, on about 12 September 2008 the Management Committee gave notice to all the owners for a meeting of the owners of the Estate to be held on 6 October 2008 at 6 pm (the “October Meeting”) (p 466). In the aforesaid notice, the order of agenda proposed in the Joint Letter was changed. The agenda to overturn the July Resolution became the last item.
19. By another notice also dated 12 September 2008 addressed to the owners of the Middle Units, the Management Office organized a briefing meeting for 24 September 2008 (the “September Briefing”) for Mr Chan to explain the Renovation Work to the owners of the Middle Units and to answer their queries (p 467).
20. By a letter dated 15 September 2008, the defendant requested the Management Committee to change the date and time of the October Meeting to 9 October 2008 and after 7 pm respectively (pp 468-469). The defendant’s said request was rejected by the Management Committee by its letter dated 17 September 2008 (p 470).
21. It was against the aforesaid background that the defendant issued the 1st Letter.
22. In the September Briefing, there were heated exchanges between the 2nd plaintiff and the defendant as well as other attending owners.
23. On 25 September 2008 (ie one day after the September Briefing), the Management Committee issued a notice changing the time for the October Meeting to 7:30 pm (p 473).
24. On 30 September 2008, the Management Office issued a notice to theowners of the Middle Units informing them that another briefing by Mr Chan on the Renovation Work to the Middle Units would be held on 10 October 2008 (p 474).
25. After the September Briefing, the defendant sent out the 2nd Letter and the 3rd Letter.
26. The October Meeting was attended by 331 owners. The proposed resolutions to dissolve the Management Committee and to overturn the July Resolution were both voted down (pp 477-480).
27. On 12 October 2008, the Management Office issued a notice to the owners of the Middle Units informing them that a further briefing by Mr Chan on the Renovation Work to the Middle Units would be held on 23 October 2008 (p 481).
28. On 1 November 2008, the Management Office issued a notice to the owners of the Middle Units informing them that a further briefing by Mr Chan on the Pipe Work to the Middle Units would be held on 5 November 2008 to decide the relocation option (p 484).
29. On 10 November 2008, the Management Office issued a further notice to the owners of the Middle Units informing them that a further briefing by Mr Chan on the Renovation Work to the Middle Units would be held on 21 November 2008 (p 486).
30. On 6 November 2008, the plaintiffs’ former solicitors, Messrs Patrick KH Lam & Co, issued a demand letter to the defendant demanding the defendant to refrain from issuing any defamatory statements on the plaintiffs and to issue a public apology to the plaintiffs (p 485).
31. In a reply letter dated 18 November 2008, the defendant denied that the Letters were defamatory (p 487).
32. The plaintiffs commenced this action on 31 March 2009 in the Court of First Instance (the “CFI”). On 20 January 2012, the CFI upon the parties’ application by way of a consent summons ordered that this action be transferred to the District Court (the “Transfer Order”).
The parties’ pleaded cases
The 1st Letter
33. The plaintiffs claimed that the following words of the 1st Letter (the “1st Words”) were defamatory of the plaintiffs:-
〝法團揀選10月6號下午6時在本苑舉行業主大會的時間不適當， 相信大部份上班一族很難於6時後下班兼能趕到登記及開會。 法團及管理委員會是否故意令大家未克出席呢？本人曾去信要求改至晚上7時後， 可惜被主席來信拒絕，…〞
〝在處理上述遷移污水渠工程中，我們不相信現任管理委員會的能力，尤其是在與工程公司簽約前，未有設立徵詢期，今天我們終於接到一個遲來的通告，就是顧問公司的測量師陳國良先生於九月二十四日晚七時到本苑開始了解或解答我們各業戶的問題。但可惜的是在未弄清一切前便與工程公司簽訂近8百萬元的工程合約。我們是否再容許他們繼續負責該項工程的往後運作？如果他日需要各業戶集資 〔如最終工程超支〕，我們願意額外科錢嗎？又或他們做的工程是有違香港建築條例而要把近來所做的工程還原本來面貌，我們可承担這一切嗎？本人早前已致信給屋宇署及房屋署獨立審查組詢問就本苑的情況是否有違反香港建築條例，而他們的回覆是在研究中。〞
〝我們曾到管理處翻閱工程合約內容，發覺部份合約內容不合理及令人費解，由於主席不同意提供副本給我們詳閱及須辦公時間到管理處查閱，時間安排上令我有些困難，現時難以掌握合約全文, 我們不清楚合約是否充分保障業戶利益；…〞
34. The plaintiffs pleaded in para 5 of the statement of claim that:-
“5. In their natural and ordinary meaning and/or inferential meaning the said words [the 1st Words”] meant and were understood to mean that:-
(1) the 1st and 2nd Plaintiffs improperly attempted to prevent the members of the IO from attending the owners’ meeting to be held on 6th October 2008;
(2) the 1st and 2nd Plaintiffs intentionally prevented the Defendant from gaining access to review the renovation contract;
(3) the 1st and 2nd Plaintiffs were acting improperly and/or incompetently in concluding the renovation contract for Hiu Tsui Court; and
(4) there is a possibility that the renovation works to be conducted at Hiu Tsui Court were in contravention of the Buildings Ordinance.”
35. The defendant denied that the 1st Words bore or were understood to bear or were capable of bearing any of the meanings as alleged by the plaintiffs as aforesaid or any defamatory meaning. The defendant averred that the 1st Words in the meanings as set out in the defence were true in substance and in fact.
36. The defendant pleaded that the following sentences of the 1st Words were fair comments on matters of public interests:-
(1) 〝法團揀選10月6號下午6時在本苑舉行業主大會的時間不適當，相信大部份上班一族很難於6時後下班兼能趕到登記及開會。法團及管理委員會是否故意令大家未克出席呢？〞
(2) 〝在處理上述遷移污水渠工程中，我們不相信現任管理委員會的能力，尤其是在與工程公司簽約前，未有設立徵詢期。〞
(3) 〝我們曾到管理處翻閱工程合約內容，發覺部份合約內容不合理及令人費解，〞.
37. The defendant further pleaded that the 1st Letter and the 1st Words were published on an occasion of qualified privilege.
The 2nd Letter
38. The plaintiffs claimed that the following words of the 2nd Letter (the “2nd Words”) were defamatory of the plaintiffs:-
〝如果您是大或細單位的業戶而您的單位已經開始了搬渠工程，您有沒有不滿意的地方？有沒有有冤無路訴的感覺？如果是，您便要参加我們下一輪的〝內部〞會議。〞
〝如果您是大或細單位的業戶，但單位仍未開始搬渠工程，您更要参予。只有對今次工程認識更多才不會被賣豬仔。〞
〝討論點：
…
2. 無論大，中，小單位，如果工程在進行中令到室內建設有所破壞或毀壞而要重新裝修，誰付這單位的裝修費？據我所知合約上有一筆是作賠償用的。但主席或法團或顧問公司至今都未提一字。
3. 今次的搬渠工程, 有否違反公契條款，現時大廈保險是否仍然生效？我查閱過法團的所有例會會議記錄都沒有提及保險，非常擔心。
4. 顧問公司費用才約2萬多元，以今天香港的生活指數我們能期望怎樣的顧問服務呢？
5. 我們是否有信心讓現時的管理委員會繼續管理這八百萬的工程？
6. 我們現在的工程是不尋常的，因為法團如果要做公眾維修，九成九應該在公眾地方，但現在全部單位都要入屋內工作；最後要說的無論是顧問公司或業主提出的方案也好，我覺得在開工前，法團應得到政府有關部門及顧問拿取專業書面保証，弄清楚給各業主，保証進行中的工程是不違法及不違大廈公契的，如沒有以上兩點重要保証，各業主應該不允許工程人員進入室內開工，因為如果我們在法律上被迫還原時，在精神上及金錢上的損失將是非常嚴重的。〞
39. The plaintiffs pleaded in para 7 of the statement of claim that:-
“7. In their natural and ordinary and/or inferential meaning the said words [the 2nd Words”] meant and were understood to mean:-
(1) the 1st and 2nd Plaintiffs failed to consider whether the sewage relocation works conducted at Hui Tsui Court [the Pipe Work] were in compliance with the law and/or the DMC and/or whether they had the appropriate insurance coverage;
(2) the 1st and 2nd Plaintiffs were reckless and/or incompetent and/or were acting contrary to the owners’ interest in dealing with the sewage relocation works;
(3) the owners were being deceived by the 1st and 2nd Plaintiffs.”
40. The defendant denied that the 2nd Words bore or were understood to bear or were capable of bearing any of the meanings as alleged by the plaintiffs as aforesaid or any defamatory meaning. The defendant averred that the 2nd Words in the meanings as set out in the defence were true in substance and in fact.
41. The defendant pleaded that the following sentences of the 2nd Words were fair comments on matters of public interests:-
(1) 〝如果您是大或細單位的業戶而您的單位已經開始了搬渠工程，您有沒有不滿意的地方？有沒有有冤無路訴的感覺？〞
(2) 〝只有對今次工程認識更多才不會被賣豬仔。〞
(3) 〝我們是否有信心讓現時的管理委員會繼續管理這八百萬的工程？〞
(4) 〝我們現在的工程是不尋常的，因為法團如果要做公眾維修，九成九應該在公眾地方，但現在全部單位都要入屋內工作；〞
42. The defendant also pleaded that the 2nd Letter and the 2nd Words were published on an occasion of qualified privilege.
The 3rd Letter
43. The plaintiffs claimed that the following words of the 3rd Letter were defamatory of the plaintiffs:-
〝本人重申，說本人接觸的各業主都表示，如渠管損壞滲漏，絕對同意更換渠管，問題是先確定工程必須是合法合理地進行及不違反大廈公契，避免不合法工程進行引致損失，最佳保障是得到有關政府部門或機構提供書面証明，不是用口講…〞
〝其後在24/9晚工程答問會，出席各業主已看到主席的言行，對其他業主的傲慢態度，已不適合作為曉翠苑法團代表。
加上2007年尾更換鋁窗事件，整個工程費用約$1,500,000.00元，更換電梯大堂鋁窗共134隻，每隻4x8呎，地下大堂鋁窗2隻，以粗略計算，鋁窗每隻$11,000.00元。
你認為這是合理價？超貴價錢？
良好管理，有賴各業主積極參與，起監察作用，才可減少流弊事件。〞
44. The plaintiffs pleaded in para 9 of the statement of claim that:-
“9. In their natural and ordinary and/or inferential meaning the said words [the 3rd Words”] meant and were understood to mean:-
(1) the 1st and 2nd Plaintiffs failed to ensure that the sewage relocation works conducted at Hui Tsui Court were in compliance were legal and complied with the DMC. There is therefore a real risk that the owners will suffer loss in the future; and
(2) the 2nd Plaintiff was arrogant and it was no longer appropriate for him to continue to hold the office the chairman of the IO [the 1st plaintiff].”
45. The defendant denied that the 3rd Words bore or were understood to bear or were capable of bearing any of the meanings as alleged by the plaintiffs as aforesaid or any defamatory meaning. The defendant averred that the 3rd Words in the meanings as set out in the defence were true in substance and in fact.
46. The defendant pleaded that the following sentences of the 3rd Words were fair comment on matters of public interests:-
(1) 〝其後在24/9晚工程答問會，出席各業主已看到主席的言行，對其他業主的傲慢態度，已不適合作為曉翠苑法團代表。〞
(2) 〝你認為這是合理價？超貴價錢？〞
(3) 〝良好管理，有賴各業主積極參與，起監察作用，才可減少流弊事件。〞
47. The defendant also pleaded that the 3rd Letter and the 3rd Words were published on an occasion of qualified privilege.
48. It could be seen that the defendant took issues on the meanings of the 1st Words, the 2nd Words and the 3rd Words. He also defended the plaintiffs’ claims on the grounds of justification, fair comment and qualified privilege. The defendant also relied on sections 26 and 27 of the Defamation Ordinance which provides that:-
“26. Justification
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.
27. Fair comment
In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.”
49. The defendant pleaded that there was no publication of the Letters as regards the 1st plaintiff. The defendant also pleaded that the 1st plaintiff had no power or duty to sue or maintain an action for defamation and the 1st plaintiff being the incorporated owners of the Estate could not as a matter of law bring an action for defamation.
The plaintiffs’ evidence
50. The 2nd plaintiff had signed a witness statement. The plaintiffs had also served witness statements of Mr羅志偉 (“Mr Law”) and PW Lam. They all testified at the trial.
The 2nd plaintiff’s evidence
51. The 2nd plaintiff adopted his witness statement as his evidence-in-chief at the trial.
52. He had been involved in the affairs of the 1st plaintiff since 2002 and was elected chairman of the Management Committee in January 2008.
53. He said that the defendant issued the Letters to the 1st plaintiff and all owners of the Estate on 22 September 2008, between 22 and 24 September 2008, and on 2 October 2008 respectively through inserting the owners’ letter-boxes.
54. He said that the contents of the Letters were without basis and contained serious accusations causing serious damages to the integrity and reputation of him and the 1st plaintiff.
55. The 2nd plaintiff said that the Renovation Contract was drafted by the Consultant and he trusted that the Management Office had sent the Renovation Contract to the 1st plaintiff’s legal advisor for advice.
56. The 2nd plaintiff said that the time for the October Meeting was fixed at 6 pm after discussion amongst the members of the Management Committee. Although the October Meeting was fixed at 6 pm, the 2nd plaintiff said that usually it would only start at 7 pm because meetings often did not start on time. He said that meetings in weekdays would usually start later whereas meetings at weekends would start earlier. He agreed that meetings of the Management Committee usually started after dinner at 8 pm or 8:30 pm.
57. He explained that he refused the defendant’s request to change the time of the October Meeting because notice for the meeting had already been issued on 12 September 2008. After he received the defendant’s request, he had discussed with other members of the Management Committee. They considered that this was a request from the defendant singly and no other owners had made similar request. They decided to refuse the defendant’s request. He said that the time for the October Meeting was eventually changed after further discussion of the Management Committee. He denied that he had changed the time of the October Meeting at the September Briefing. His case was that he only said at the September Briefing that he would change the meeting time but this had to be discussed by members of the Management Committee. He denied defence counsel’s suggestion that he fixed the meeting time at 6 pm because he did not want more owners to attend the October Meeting to overturn the decision to carry out the Renovation Work.
58. He said that the Pipe Work had been considered by the 1st plaintiff before he became chairman in 2008. Consultation had started since 2003. The Management Committee chaired by the plaintiff only completed the project in 2008.
59. The 2nd plaintiff said that the owners had in the meeting of 12 January 2008 resolved to engage consultant for the Renovation Work. The owners had approved the Renovation Work.The July Resolutionwas to clear misunderstanding, if any.
60. The 2nd plaintiff said that as at 28 August 2008, the Consultant had recommended two options for the Pipe Work of the Middle Units. Objections were raised by the Middle Units owners only after the Renovation Work had commenced. As there was no consensus among the owners of the Middle Units, the Pipe Work for the Middle Units was postponed to the last part of the Renovation Work to let the Consultant to come up with more options for the Middle Unit owners’ consideration. He agreed that eventually, the Pipes of the Middle Units were only replaced but not relocated and the full contract sum was paid under the Renovation Contract.
61. The 2nd plaintiff said that there were many consultations before he signed the Renovation Contract on 4 August 2008 but he could not recall the number of such consultations. The Contractor had displayed work models in the Management Office before signing of the Renovation Contract and commencement of the Renovation Work. However, the owners did not voice out their opinion until after the Renovation Work had commenced. As the owners of the Middle Units opposed to the Pipe Work, the 1st plaintiff arranged the September Briefing for the Consultant to explain the Pipe Work to them and to answer their queries. He agreed that the Contractor had issued questionnaire (pp 793-794) to the owners of the Middle Units after the Renovation Contract was signed to obtain their views on three different options for the Pipes Work of the Middle Units. A further questionnaire with four options (pp 795-796) was sent to owners of the Middle Units after the September Briefing.
62. The 2nd plaintiff said that the Consultant was professional and would not recommend unlawful works or works in breach of the deed of mutual covenants of the Estate (the “DMC”) to the 1st plaintiff.
63. The 2nd plaintiff agreed that the Renovation Contract was a lump sum contract but said that he had discussed with the Contractor who had orally agreed that if no work was done to all Middle Units, the 1st plaintiff needed not pay the labour costs for that part of the Renovation Work which was about 40% of the unit price. He agreed that the 1st plaintiff would still have to pay for the materials which had already been purchased even if the Pipe Work to all Middle Units was cancelled. The 2nd plaintiff said that eventually replacement works were carried out to the Pipes in the Middle Units. Same contractual materials were used although he agreed that there was no relocation of the Pipes in the Middle Units.
64. The 2nd plaintiff agreed that contrary to what had been pleaded in the reply (para 37 of the reply), he did attend the September Briefing on 24 September 2008. He explained that he had mixed up the September Briefing with another meeting of the Middle Units in September 2008 which he did not attend. He denied that he acted in an arrogant way at the September Briefing. He said that he only performed his duty as chairman to ensure the owners could speak in an orderly way.
65. The 2nd plaintiff agreed that he had changed the order of the agenda proposed in the Joint Letter for the October Meeting. His explanation was that if the Management Committee was dissolved, there would be no one to supervise the Renovation Work and it would then not be necessary to consider overturning the July Resolution.
66. The 2nd plaintiff agreed that the 1st plaintiff had not posted up the Renovation Contract. If the owners needed to know details of the Renovation Contract, they had to inspect the document at the Management Office in the presence of staff of the Management Office. He explained that this was because the 1st plaintiff had agreed with the Contractor not to divulge commercial information of the Renovation Contract. He confirmed that the owners were not allowed to take away the Renovation Contract and the Management Office would not provide photocopy of the Renovation Contract to the owners. However, the owners could take photographs of the Renovation Contract.
Mr Law’s evidence
67. Mr Law adopted his witness statement as his evidence-in-chief at the trial.
68. Mr Law was the assistant property officer of the management company of the Estate. His employer had been the manager of the Estate since September 2007 but he did not work at the Estate until August 2010. He had no personal knowledge on matters relating to the Estate occurred before he worked at the Estate. His knowledge on those matters came from documents kept at the Management Office and what other told him. He agreed that he did not know whether the documents kept at the Management Office were complete or correct.
69. Mr Law was responsible for paper works of the 1st plaintiff, including taking minutes of meetings and keeping them in files.
70. He learned from the documentary records of the 1st plaintiff that in 2003 the then Management Committee chaired by Mr Chan Kai Yuen had jointly conducted a questionnaire survey with PW Lam on the owners of the Estate in respect of water leakage problem of the Pipes and solution for the same.
71. On 1 March 2004, the then Management Committee arranged a seminar for LC Surveyors to explain the causes for the Pipes leakage problem and feasible repair methods.
72. On 27 April 2004, the then Management Committee invited all the owners to participate in a drainage pipes leakage inspection survey conducted by LC Surveyors. A total of 64 owners participated. LC Surveyors issued a report on 6 September 2004 after the inspection survey. The report was published to all owners.
73. Since 2006, the 1st plaintiff had received many complaints on burst or leakage of the Pipes. The meeting minutes of the Management Committee showed that the Management Office had difficulties to carry out inspection and repair to thePipes which required access to the owners’ units. The Management Office could only act on complaint. The problem remained unresolved when the term of the previous Management Committee expired in 2007.
74. At the general meeting of the owners held on 12 January 2008, the 2nd plaintiff was elected chairman of the Management Committee. The meeting also authorized the Management Committee to engage consultant to proceed with the RenovationWork. The Management Committee invited tenders from consultancy firms. Five firms submitted tender and four of them made presentation to the Management Committee on 25 March 2008. The Management Committee resolved to engage the Consultant. The Consultant prepared the tender documents for the Renovation Work and on 5 June 2008 invited tenders. The 1st plaintiff received 13 tenders.
75. The Management Committee convened the JulyMeeting for the Consultant to explain the Renovation Work to the owners and for the owners to select contractor to do the Renovation Work. At the July Meeting, Mr Chan explained the Renovation Work and result of the tender to the attending owners. When the owners were about to cast their votes to select contractor, some owners did not sure whether they had previously resolved to proceed with the RenovationWork. To avoid doubt, the Management Committee decided to have the owners to vote whether to proceed with the Renovation Work before they voted to selectcontractor.
76. The owners voted in favour of proceeding with the RenovationWork and selected the Contractor for the Renovation Work. The Renovation Contract with the Contractor was signed on 4 August 2008 and the Renovation Work commenced on 20 August 2008.
77. The Management Office received queries from some owners after the Renovation Work had commenced. The queries were forwarded to the Management Committee. The Management Committee held a meeting on 28 August 2008 with a question and answer session for representatives of the Consultant and the Contractor to answer queries of the owners. Eight owners raised questions which were answered by representatives of the Consultant and the Contractor.
78. On about 28 August 2008, the Management Committee received the Joint Letter. On 12 September 2008, the Management Committee issued notice to convene the October Meeting at 6 pm on 6 October 2008. The Management Committee also decided to hold another briefing session on 24 September 2008 for representative of the Consultant to answer the owners’ queries. Notice for the September Briefing was sent to the owners of all Middle Units also on 12 September 2008.
79. On 15 September 2008, the defendant sent letter to the Management Committee to request changing the time of the October Meeting from 6 pm to 7 pm which was initially refused by the Management Committee but the Management Committee had later on 25 September 2008 agreed to change the time for the October Meeting to 7:30 pm.
80. The defendant issued the Letters to the 1st plaintiff and all other owners of the Estate by inserting the Letters into the letter-boxes of all units of the Estate.
81. Mr Law said that he was unable to find any meeting minutes for the September Briefing.
82. Mr Law confirmed that the Pipes in the Middle Units were eventually not relocated but replaced at their original locations. He also confirmed that the full contract sum for the Renovation Work had been paid to the Contractor.
83. Mr Law said that the aluminum windows replacement work referred to in the 3rd Letter had nothing to do with the 2008 Management Committee and the 2nd plaintiff.
84. On 6 November 2008, the 1st plaintiff’s solicitors issued demand letter to the defendant in respect of the Letters. In a reply letter dated 18 November 2008, the defendant said that he was willing to apologize but no specific way of apology was proposed and the defendant had not made any apology to the plaintiffs when this action was commenced on 31 March 2009.
PW Lam’s evidence
85. PW Lam adopted her witness statement as her evidence-in-chief at the trial.
86. PW Lam had been a District Board member for the district of the Estate since 1994. She had attended various owners’ general meetings and meetings of the Management Committee of the 1st plaintiff.
87. She recalled that since about 2002 to 2003 she had received many complaints from owners of the Estate on leakage problem of public pipes. She confirmed Mr Law’s evidence on the joint questionnaire conducted in 2003 by her with the then Management Committee. She confirmed that the purpose of the 2003 questionnaire was to chase the Housing Department to repair the defects of the Pipes.
88. PW Lam relied on the records of the 1st plaintiff and the evidence of Mr Law to confirm her knowledge of the briefing session and inspection survey conducted in 2004.
89. Sheknew that the Management Office had encountered difficulties in carrying out inspection and repair to the Pipes. She said that the aluminum windows replacement work in 2007 was handled by the then Management Committee and had nothing to do with the Management Committee chaired by the 2nd plaintiff.
90. PW Lam said that the Contractor had in November 2008 put forward four options for the consideration of the owners of the Middle Units. She said that options 3 and 4 were proposed after the Renovation Contract was signed. Eventually, option 4 was adopted.
The defendant’s evidence
91. The defendant had signed a witness statement and had served a witness statement of Madam林玉萍 (“DW Lam”). Both of them testified at the trial.
The defendant’s own evidence
92. The defendant adopted his witness statement as his evidence-in-chief at the trial.
93. The defendant worked as an assistant clerk of works in the Housing Department. In his work, he would deal with building contracts for residential buildings. He was the owner of a Middle Unit. He had been living in his property for more than 20 years.
94. He said that he was not aware of the leakage problem of the Pipes until he studied documents on this case. The Pipes in his unit had no leakage. He had no knowledge of the surveys in 2003 and 2004.
95. He stated that in early 2008, the Management Committee proposed to carry out the Renovation Work including the Pipe Work. On 12 January 2008, the Management Committee resolved to engage a consultant for the Renovation Work. He said that he had not attended this meeting. The Management Committee subsequently engaged the Consultant at the fee of $22,800.
96. On 2 July 2008, the Management Committee issued a notice to convene the JulyMeeting for the Consultant to explain the Renovation Work and for selection of contractor for the Renovation Work. He had attended the July Meeting. He agreed that Mr Chan had given a briefing at the July Meeting on the Renovation Work which was not limited to the Pipe Work.
97. The defendant stated that at the July Meeting when the legality of the Renovation Work was challenged by many owners, the 2nd plaintiff, without giving any prior notice, proposed to pass a resolution for approving the Renovation Work. He agreed that the July Resolution was passed by majority at the July Meeting but said that if the July Resolution had been included in the meeting notice, the result might not be the same.
98. The defendant said that up to the July Meeting, the 2nd plaintiff had failed to explain how the Pipe Work in the Middle Units was to be effected; whether the Pipe Work would breach any statutory provisions and the DMC; and how the contractor would be able to gain access to individual unit to carry out the works if objected by the unit’s owner.
99. The Pipes inside the Middle Units were located away from the exteriorwalls. The Consultant proposed at the July Meeting that the drainage pipes with a 6 to 8-inch housing were to run across the balcony of the Middle Unit into the exterior walls. The defendant said that such proposal was strongly opposed by the owners of the Middle Units.
100. The defendant said that in the absence of a valid resolution for the Pipe Work and agreement or proposal as to how to relocate the Pipes of the Middle Units, the 2nd plaintiff proceeded to pass the resolution for selection of contractor for the Renovation Work at the July Meeting. The 2nd plaintiff signed the Renovation Contract with the Contractor on 4 August 2008.
101. The defendant said that no prior notice had been given for passing the July Resolution. This was in breach of section 2(1AA) of Schedule 3 of the Building Management Ordinance (Cap 344) (the “BMO”). He honestly believed that the July Resolution passed at the July Meeting without prior notice was somehow faulted and he took the view that the owners (including him) were entitled to challenge the legality of the Renovation Work. He disagreed that the July Resolution was ancillary or incidental to the agenda to select contractor for the Renovation Work.
102. He said that prior to the notice dated 2 July 2008, discussions including the surveys were informal and only related to water leakage problems occurred in about 2003 to 2004. They bore little relationship with the Renovation Work.
103. The defendant stated that many owners had raised the following queries at the July Meeting:-
(1) the reasons for relocating the Pipes to the exterior walls of the buildings;
(2) the solution for relocating the Pipes in the Middle Units after they were removed;
(3) whether the relocation of the Pipes in the Middle Units would contravene the applicable laws;
(4) whether the relocation of the Pipes to the exterior walls of the buildings would affect the existing insurance cover of the Estate.
104. The defendant said that without proper response and reply to the owners as to whether the Renovation Work would contravene the applicable laws, the plaintiffs signed the Renovation Contract on 4 August 2008. The RenovationWork had commenced on 20 August 2008 without agreement or proposal to effect relocation of the Pipes in the Middle Units.
105. On 28 August 2008, the defendant and other 45 owners sent the Joint Letter to the 2nd plaintiff requesting the 1st plaintiff to convene an owners’ general meeting to overturn the JulyResolution purportedly passed in the July Meeting.
106. The defendant stated that in issuing the Letters to the other owners his concerns were not just the legality of the JulyResolution but also whether there was formal and agreed solution in relation to the carrying out of the Renovation Work. He believed that he was entitled to issue the Letters and the other owners had corresponding interests and duty to receive the same.
107. On 31 August 2008, the defendant sent a letter to the Independent Checking Unit (the “ICU”) of the Housing Department with copy to the Building Department questioning that the Renovation Work was not alteration work and was beyond the power of the 1st plaintiff. He also raised the possibility of damage caused to the structural parts of the buildings of the Estate and of such work being in contravention of the building laws of Hong Kong (p 460).
108. On about 3 September 2008, the owners of the Middle Units received a questionnaire proposing three options for relocating the Pipes in the Middle Units.
109. On 6 September 2008, the defendant sent a notice to call for the other owners to attend a meeting on 10 September 2008 to discuss solution to avoid the Renovation Work being classified as illegal work. The discussion meeting was attended by about 75 owners. The defendant said that he felt that the owners were concerned with whether the Renovation Work would contravene the laws and whether the Renovation Work would have to be reinstated. They were also concerned that the insurance position and relevant compensation arrangement had to be clarified.
110. On 12 September 2008, the Management Committee gave notice to the owners of the Middle Units for the September Briefing on proposals for the relocation of the Pipes in the Middle Units. The Management Committee also gave notice for the October Meeting to be held on 6 October 2008 at 6 pm.
111. The defendant stated that to have the October Meeting held at 6 pm would be very inconvenient to many owners who had to work and could not come to attend the meeting by 6 pm. He said that many owners objected to such arrangement and felt that the 1st plaintiff deliberately prevented them from attending the October Meeting by fixing the meeting at such an early time. He said that normally owners’ meeting of the Estate would commence after 7:30 pm.
112. The defendant stated that 6 October 2008 was a working day between Sunday and a public holiday. Many owners might take that opportunity to leave Hong Kong for holidays.
113. By a letter dated 15 September 2008, the defendant requested the 2nd plaintiff to change the date and time for the October Meeting. His request was refused.
114. On 19 September 2008, he sent another letter to the ICU enclosing plans and photos to enquire whether the Renovation Work had obtained their approval (pp 787-792).
115. The defendant said that the 1st plaintiff did not exhibit the tender documents or the contract for theRenovation Work at the July Meeting and the plaintiffs did not inform the owners where these documents would be made available for inspection. The owners had to inspect the documents at the Management Office. The defendant said that the procedure to inspect the documents was unnecessarily cumbersome. After notifying the Management Office, appointment had to be made with a Mr Kwan of the Management Office and inspection had to be done in Mr Kwan’s presence. Only inspection but no photocopying was allowed. He had asked for permission to take photograph of the Renovation Contract but was refused. These would render it difficult for the owners to properly apprehend the contents of the contract documents.
116. Before he issued the 1st Letter, the defendant did attend the Management Office to inspect the Renovation Contract. He discovered some clauses which were of concerns. After discussed with some owners, he decided to publish the 1st Letter on 22 September 2008 and sent it to the other owners by inserting the same in their letter-boxes. The defendant said that the 1st Letter merely reflected the majority wishes and concerns of the owners.
117. The defendant stated that by issuing the 1st Letter, he just invited the other owners to consider the ability of the Management Committee to handle the Pipe Work and whether the Pipe Work would be in contravention of any relevant provisions of the Buildings Ordinance (Cap 123). He also pointed out difficulties encountered by him in studying the content of the Renovation Contract.
118. The defendant said that on 25 September 2008, the 2nd plaintiff issued a notice to change the time for the October Meeting and this notice proved that his concern was legitimate and had been addressed accordingly.
119. The defendant said that he was advised by his lawyers that the proposal that the drainage pipes with a 6 to 8-inch housing were to run across the balcony of the unit into the exterior walls might contravene the Buildings Ordinance including section 3A of the Building (Planning) Regulations (Cap 123F). He said that the proposed work would reduce the height of the fence of the balcony to about 1,050 mm which was less than the statutory requirement of 1,100 mm. He said that this was not considered or explained by the 2nd plaintiff at the July Meeting. The defendant wrote to the ICU on 23 January 2009 (pp 492-496). The ICU replied on 17 February 2009 confirming the statutory requirement of section 3A of the Building (Planning) Regulations (p 497).
120. By a letter dated 20 October 2008, the ICU informed the defendant that the Renovation Work was exempted work and did not need prior approval before commencement of the work but drilling of holes onto the exterior walls as part of the Renovation Work which involved impact on the structure of the buildings would need prior approval from the ICU. The Housing Department had directed the Contractor to suspend the drilling works pending submission of detailed data to and granting of approval by the Housing Department (p 482).
121. By a letter dated 28 October 2008, the ICU informed the defendant that the analyst report submitted by recognized person and registered structural engineer proved that the drilling work did not affect the safety and stability of the buildings (p 483). The defendant said that this showed that the necessary step of getting approval from relevant governmental department which should be done before the signing of the Renovation Contract and commencement of the Renovation Work had been omitted by the Contractor and the 1st plaintiff.
122. The defendant raised another issues about installing new clothes-horse at the exterior walls of the buildings of the Estate with the ICU on 15 December 2008 (p 490). The ICU replied on 15 January 2009 that if no approval had been obtained from the Housing Department, installation of new clothes-horse at the exterior walls should constitute unauthorized building work (p 491).
123. The defendant said that the 1st Letter was not defamatory as he had the legal or moral or social duty to bring the issues to the attention of the other owners of the Estate and to protect his legitimate interest as an owner of the Estate so as to voice his concerns of the Renovation Work and the other owners of the Estate as recipients had corresponding interests or duties to receive the 1st Letter and were entitled to receive the same. He said that his concerns were all justified.
124. The defendant said that the 2nd plaintiff had attended the September Briefing. Some of the owners present at the September Briefing found that the 2nd plaintiff showed an arrogant attitude toward them and were not satisfied with this. The defendant said that the 2nd plaintiff asked the defendant to shut up when the defendant questioned about the possible solutions regarding the removal of the Pipes and queried that the 2nd plaintiff might mislead the owners. The defendant also referred to the 2nd plaintiff saying at the September Briefing that it was not necessary to consult the owners when he fixed the time for the October Meeting and the owners could sue him. The 2nd plaintiff also threatened the owners attending the September Briefing not to use any excuse to mess around. The defendant produced the audio recordings for the September Briefing and the transcripts of the same to substantiate his case.
125. The defendant said that Mr Chan had answered some of the questions raised in the September Briefing but he did not answer all of them satisfactorily. He had heard complaints from two to three owners of the Large and Small Units about the Contractor not making good damage caused by the Renovation Work to their units. He had also heard other owners expressing their worries as to who would bear the loss if the Renovation Work was unlawful and reinstatement was required. Some owners had mentioned the words〝賣豬仔〞 in their discussions.
126. The defendant stated that after the meeting of 10 September 2008 and the September Briefing, he felt that the owners were concerned with the following issues:-
(1) whether the Renovation Work would contravene the DMC and the applicable laws;
(2) whether the Renovation Work would have to be reinstated in the mid-way;
(3) the issue of insurance coverage and compensation in the event of damage;
(4) whether the Renovation Work would increase the insurance premium payable in respect of the buildings of the Estate.
127. The defendant said that his concerns on whether the DMC had been complied with and on the issue of insurance were justified. He planned to convene another discussion on 29 September 2008. He and some other owners consolidated the issues discussed in the meeting of 10 September 2008 and the September Briefing and distributed the same to other owners of the Estate on about 27 September 2008. This was the 2nd Letter. It was issued with a view to raise the concerns of the other owners and to invite them to attend the meeting on 29 September 2008. The defendant stated that this meeting was held with the ultimate aim of enabling the other owners to make a correct decision in the October Meeting.
128. The defendant said that in the 2nd Letter, he just invited the other owners to consider whether they were satisfied with the Renovation Work and to know more about the Renovation Work so as to protect their own rights and interests and not to be misled. He said that he intended to raise the concerns of the other owners with no dominant or improper motive of injuring the reputation of the plaintiffs. He invited the other owners to discuss whether they were confident to allow the Management Committee to continue to handle the Renovation Work. He raised his concerns as to whether the relocation of the Pipes would breach the DMC and the relevant statutory provisions and whether the validity of the insurance coverage of the Estate would be affected as the Renovation Work would alter the outlook features of the buildings of the Estate. He had raised his concern on possible breach of the DMC in the July Meeting and the September Briefing but received no answer. He had asked Mr Kwan of the Management Office and was told to ask the Consultant. He had called the Consultant two to three times. He was told to leave messages which he did but no one called back. In the discussion held on 10 September 2008, a District Board member who was also a lawyer had attended and advised them that the Renovation Work had breached the DMC and the statutory provisions. The defendant then wrote to the ICU on 19 September 2008 to seek clarification. He was also advised by his lawyers that the Renovation Work might contravene clause 6 of the Third Schedule of the DMC.
129. The defendant said that the minutes for the meeting of the owners held on 28 August 2008 did not record the signing of the Renovation Contract and did not disclose all the contents of the Renovation Contract, in particular the contract sum, liability or insurance clauses. Before he issued the 1st and 2nd Letters, the defendant attended the Management Office to inspect the Renovation Contract and discovered some of the clauses of the Contract were of concerned. The defendant cited clause 6.1 of Part 8 of the tender documents which provided for the 1st plaintiff to pay about $389,800 to cover compensation for damages done to the internal parts of the units (p 420). At the trial, the defendant said that he also considered clause 9 of the maincontract to be unreasonable as it provided that the work scope could be reduced but the parties could not claim for loss (p 442).
130. The defendant said that the 2nd Letter was not defamatory since he just raised the concerns of the owners and these concerns were all justified.
131. The defendant said that the meeting of 10 September 2008 was attended by about 75 owners and the meeting of 29 September 2008 was attended by about 90 owners. In view of the fact that these owners had shown care and concern with their interest, he decided to publish the 3rd Letter on 2 October 2008 as the last attempt to raise the concerns of the other owners over the issues of the Renovation Work.
132. By the 3rd Letter, he invited the other owners to give their proxies to him to attend the October Meeting. The defendant stated that in the 3rd Letter he just pointed out that it had to be made sure that the Renovation Work had to be carried out lawfully and reasonably and in compliance with the DMC so as to avoid any loss. He proposed that the best guarantee was to obtain documentary proof in support from the relevant government authorities. He also pointed out that good estate management required the active participation of the owners so as to provide effective supervision and minimize improper matters. The defendant said that the 2nd plaintiff had behaved arrogantly in the September Briefing and questioned his suitability to be representative of the 1st plaintiff.
133. The defendant explained that his comments in the 3rd Letter on the reasonableness of the price charged for the replacement of aluminum windows of the Estate in 2007 was based on information available in the resolution passed on 15 December 2007. The defendant said that the 1st plaintiff and/or the 2nd plaintiff did not disclose the necessary information in the meeting minutes to enable the owners to properly assess the reasonableness of the price charged for the replacement of the aluminum windows. He only discovered later from the contractual documents that the charges also covered the costs of installation of fire damper to window blind at garbage chamber. He said that he did not receive the contract documents relating to the replacement of aluminum windows until 1 June 2009. The defendant said that he just voiced out his concerns and honest belief regarding this issue in the 3rd Letter.
134. The defendant said that the order of the items on theagenda for the October Meeting was different from the order set out in the Joint Letter. He said that such change created an absurd voting result and the resolutions passed at the October Meeting did not prove or were not determinative of whether the statements in the Letters were true and correct.
135. On 30 September 2008, 12 October 2008, 1 November 2008 and 19 November 2008 the Management Office issued further notices to convene four additional project discussion meetings in respect of the Middle Units. The defendant said that this clearly showed that the owners of the Middle Units had serious concerns over the exact solution of carrying out the Renovation Work and no consensus of the owners had been reached even after the commencement of the Renovation Work.
136. On 21 November 2008, the Management Office proposed four options for discussion by the owners.
137. The Pipe Work was finished at the end of May 2009.
138. The defendant said that the plaintiffs’ former solicitors had sent him a letter dated 6 November 2008 demanding him to refrain from issuing any publication containing any defamatory statements and demand an apology from him but he held the view that there were no defamatory words in the Letters. He stated that before issuing the Letters, he had discussed the content with the owners concerned. He said that the owners of the Estate had common and corresponding interests in the matters raised in the Letters.
DW Lam’s evidence
139. DW Lam adopted her witness statement as her evidence-in-chief at the trial.
140. DW Lam had been living in the Estate since 1990. She had attended the September Briefing.
141. She said that at the September Briefing, most of the owners requested the 2nd plaintiff to change the time for the October Meeting from 6 pm to 7 pm but the 2nd plaintiff replied “no change” (冇得改) in an uncompromising and arrogant way . When the owners discussed about the Pipe Work and the October Meeting, the 2nd plaintiff had said: 〝我係黑箱作業架啦，告我啦〞. The 2nd plaintiff had more than once told the owners to “shut up” when they discussed the Pipe Work with the 2nd plaintiff.
142. The 2nd plaintiff had told the owners who had concern about the time for the October Meeting that〝你哋班人係到借啲意攪嘢〞 and〝我開大會使乜諮詢你呀〞.
143. She felt that the 2nd plaintiff had behaved arrogantly at the September Briefing with no respect to other attending owners.
144. DW Lam said that she opposed to the Pipe Work as she considered the options proposed by the Contractor and the Consultant not workable and unlawful. She was concerned that if accident occurred, the owners might have to share the claim. She was also worried about the liability insurance of the Estate being affected. She said that at the July Meeting, Mr Chan had explained the insurance for the Renovation Work but had not mentioned insurance of the Estate.
145. She said that the 1st plaintiff had not displayed the contract documents at the notice board before discussion meetings or before voting. The 1st plaintiff had refused to provide copy of the Renovation Contract to the owners and the owners had to inspect the Renovation Contract at the Management Office and make their own notes. The defendant had told her many times that the 1st plaintiff had refused to provide copy of the contract for the Pipe Work to him and he could only inspect the same and made his notes at the Management Office.
146. DW Lam said that before proceed with and commencing the Pipe Work, the 1st plaintiff had not held consultation meeting for the owners to work out a consensus on the work proposal. She had attended the July Meeting. She said that although Mr Chan had attended the July Meeting to explain the Renovation Work, the owners did not have much chance to ask questions at the JulyMeeting. They were told that the meeting was for voting to select contractor and not for detailed discussion. She said that there was no consultation at the July Meeting.
Discussion
147. Before I deal with grounds of defence which are applicable to the claims of both plaintiffs, I shall deal with the defence addressed only to the 1st plaintiff’s claim. The defendant advanced three lines of defence to argue that the 1st plaintiff had no claim against the defendant, namely: (1) there was no publication against the 1st plaintiff; (2) the 1st plaintiff has no power or duty under the BMO to sue for defamation; and (3) the 1st plaintiff may not sue on defamation as a matter of law.
No publication against the 1st plaintiff
148. The defendant pleaded that there was no publication of the Letters as regard the 1st plaintiff since the 1st plaintiffs was the body corporate of the owners for the time being of the Estate and the Letters were issued by the defendant being an owner of the Estate to other owners of the Estate at the material times.
149. It is trite law that no civil action can be maintained for libel unless the words complained of have been published. In order to constitute publication, the matter must be published by the defendant to a third party. Defamation protects a person’s reputation and his reputation is not the good opinion he has of himself but the estimation in which others hold him. A defamatory statement about the claimant communicated to the claimant alone may injure his self-esteem but it cannot injure his reputation. (See Gatley on Libel and Slander (12th ed) at para 6.1)
150. The 1st plaintiff is an incorporation registered under the BMO. Section 7(1) of the BMO provides for a management committee of a building to apply to the Land Registrar for the registration of the owners of the building as a corporation under the BMO. Section 8(2) of the BMO further provides that upon issuance of the certificate of registration, the owners of a building for the time being shall be a body corporate with perpetual succession and shall in the name of the corporation be capable of suing and be sued. In such case, an owners incorporated is in law a registration of all the owners of the building. The 1st plaintiff is a registration of all the owners of the Estate. A publication to the owners of the Estate is not publication to third parties other than the 1st plaintiff.
151. In the statement of claim, the plaintiffs pleaded that:-
“4. In a letter dated 22nd September 2008 (the “1st Letter”), written and signed by the Defendant and addressed to the owners of Hiu Tsui Court, the Defendant wrote and published or caused to be written and published the following words, which are defamatory of the 1st and 2nd Plaintiffs: …”
“6. In an undated letter written and signed by the Defendant and addressed to the owners of Hiu Tsui Court which were sent or delivered to the residents of Hiu Tsui Court between 24th and 29th September 2008 (the “2nd Letter”), the Defendant wrote and published or caused to be written and published the following words, which are defamatory of the 1st and 2nd Plaintiffs: …”
“8. In a letter dated 2nd October 2008 (the “3rd Letter”), written and signed by the Defendant and addressed to the owners of Hiu Tsui Court, the Defendant wrote and published or caused to be written and published the following words, which are defamatory of the 1st and 2nd Plaintiffs: …”
152. According to the plaintiffs’ pleaded case, the 1st and 3rd Letters were addressed to the owners of the Estate and the 2nd Letter was sent and delivered to the residents of the Estate. The residents of the Estate might not be owners of the Estate. In such case, according to the plaintiffs’ pleaded case, for the purpose of the 1st plaintiff’s claim only the 2nd Letter might have been published to third parties other than the 1st plaintiff. Even on the plaintiffs’ own case, there was no publication of the 1st and 3rd Letters to third parties in respect of the 1st plaintiff’s claim herein.
153. The defendant had taken specific issue on publication of the Letters in respect of the 1st plaintiff’s claim. The defendant pleaded in para 16 of the defence that:-
“Further since the 1st, 2nd and 3rd Letters were sent to the owners of the Estate, and the 1st Plaintiff has been the body corporate of the owners for the time being of the Estate, the 1st Plaintiff cannot have any cause of action for defamation against the Defendant in that there was no publication of the 1st, 2nd and 3rd Letters as regards the 1st Plaintiff.”
154. Although the plaintiffs pleaded that the 2nd Letter was sent and delivered to the residents of the Estate, no evidence was adduced to show that the 2nd Letters had been read by a person who was not an owner of the Estate at the material times.
155. Miss Kei representing the plaintiffs did not seek to contend the otherwise. In her closing submissions, she submitted that:-
“5. It is undisputed that the first letter was dated 22 September 2008, copies of which were published and circulated to the other 659 owners through their letterbox by D on the same day (‘the 1st Letter’) [C2: 472]. The second letter was undated, but D admitted that he published and circulated copies thereof to the owners through their letterbox on 27 September 2008 (‘the 2nd Letter’) [C2: 475]. The third letter was dated 2 October 2008, copies of which were published and circulated to the owners through their letterbox by D on the same day [C2: 476].”
156. I find that the plaintiffs had failed to prove that the Letters or any of them had been published to people other than the owners of the Estate at the material times. In the premise, there was no publication of the Letters in respect of the 1st plaintiff and the 1st plaintiff has no claim for defamation against the defendant in respect of the Letters.
Powers and duties under the BMO
157. The defendant further pleaded that the 1st plaintiff had no power or duty to pursue or maintain an action for defamation pursuant to section 18 of the BMO.
158. Section 18(2)(g) of the BMO provides that an owners incorporated may in its discretion act on behalf of the owners in respect of any matter in which the owners have a common interest. In The Incorporated Owners of Swiss Towers v Chow Yum Wah (unrep., CACV 122/2006, 20 October 2006), the Court of Appeal pointed out that the purpose of the BMO was to facilitate the incorporation of owners of flats in buildings to provide for the management of their buildings and for matters incidental or connected with such a purpose. The words “any other matters in which the owners have a common interest” in section 18(2)(g) had to be read in that light. They had to be referable to the management and maintenance of the buildings and matters relating to such purposes (paras 12-13 of the judgment).
159. The Letters were on the Renovation Work undertaken by the Estate. Most of the imputations alleged to have been contained in the Letters were relating to the management of the Estate. Whether the statements and/or comments made by the defendant in the Letter in respect of the 1st plaintiff were true or accurate was a matter in which the owners of the Estate had common interests. If the 1st plaintiff is entitled in law to maintain an action in defamation, I do not see that the provisions of the BMO will be an obstacle.
Whether owners incorporated may sue on defamation in law
160. Although by virtue of section 8(2) of the BMO, an owners incorporated is capable of suing, I agree that the 1st plaintiff being an owners incorporated may not bring an action for defamation. At common law, for an imputation to be treated as defamatory it must be to the claimant’s discredit; or tend to lower him in the estimation of others; or cause him to be shunned or avoided; or expose him to hatred, contempt or ridicule. An imputation will not have the aforesaid effects on an owners incorporated.
161. An owners incorporated is a body corporate by virtue of section 8(2)(a) of the BMO. The reputation of a corporate body is capable of being an asset of positive value to it. It may maintain an action of libel or slander for any words which have a tendency to damage it in the way of its business. As Lord Reid pointed out in Lewis v Daily Telegraph Ltd [1964] AC 234 at 262 that:-
“A company cannot be injured in its feelings, it can only be injured in its pocket. Its reputation can be injured by a libel but that injury must sound in money. The injury need not necessarily be confined to loss of income. Its goodwill may be injured. But in so far as the company establishes that the libel has, or has probably, diminished its profits, I think that Gourley’s case is relevant.”
162. As an owners incorporated does not carry on any business for profit, it cannot get injured in its pocket. As a body corporate, it cannot get injured in its feelings. It is not a non-trading corporation authorized to acquire property which may be the source of income or revenue which might be affected by injurious charges.
163. In Oriental Daily Publisher Limited and anor v Ming Pao Holdings Ltd and ors [2012] 15 HKCFAR 299 the Court of Final Appeal cited with approval the view of Lord Hoffmann expressed in Jameel v Wall Street Journal Eurpoe Sprl [2007] 1 AC 359 on whether a trading company which conducted no business but had a trading reputation within the jurisdiction was entitled to recover general damages for libel without pleading or proving special damage. Ribeiro PJ stated in para 124 of the judgment that:-
“124. Lord Hoffmann’s judgment in Jameel v Wall Street Journal Europe Sprl, clearly indicates he would not have been prepared to equate the position of companies with the position of individuals as the plaintiffs suggest. His was a dissenting judgment, but that does not matter for present purposes. The House of Lords was split on the issue of whether a trading company which conducted no business but had a trading reputation within the jurisdiction was entitled to recover general damages for libel without pleading or proving special damage. While it was accepted that a human plaintiff does not need to prove such harm, Lord Hoffmann, agreeing in dissent with Baroness Hale, held that companies stood on a wholly different footing:-
‘In the case of an individual, his reputation is a part of his personality, the ‘immortal part’ of himself and it is right that he should be entitled to vindicate his reputation and receive compensation for a slur upon it without proof of financial loss. But a commercial company has no soul and its reputation is no more than a commercial asset, something attached to its trading name which brings in customers. I see no reason why the rule which requires proof of damage to commercial assets in other torts, such as malicious falsehood, should not also apply to defamation.’
A company without a soul, whose reputation is merely a commercial asset, is hardly likely to be regarded as having feelings capable of being injured, whether borrowed from its officers or employees or otherwise.”
164. An owners incorporated has no soul. It does not even have a trading reputation. It has no customers. It is different from a charity when defamatory statements may discourage subscribers or otherwise impair its ability to carry on its charitable objects. The powers and duties of an owners incorporated are defined by the BMO which would not be affected by defamatory statements. It also differed from a trade union when defamatory matter may adversely affect the union’s ability to keep its members or attract new ones or to maintain a convincing attitude towards employers. An owners incorporated needs not attract new members. Anyone who becomes owner of a unit in a building with an owners incorporated will become a member of the owners incorporated. As Lord Esher MR pointed out in South-Hetton Coal Co v North-Eastern News [1894] 1 QB 133 CA at 138 that:-
“There are statements which, with regard to some plaintiffs, would undoubtedly constitute a libel, but which, if published of another kind of plaintiffs, would not have the same effect. For instance, it might be stated of a person that his manners were contrary to all sense of decency or comity, and such that, if the statement were true, they would render him deserving in the minds of persons of ordinary sense of contempt, hatred, or ridicule; but, if the same thing were said with regard to a firm or company, it would be impossible that it should have the same effect, because a firm or company as such cannot have indecent or vulgar manners.”
165. In view of the nature of its constitution and the activities of an owners incorporated, I agree that it may not maintain an action for defamation as a matter of law. Miss Kei representing the plaintiff did not show me authorities to the contrary.
Ruling on the 1st plaintiff’s claims
166. In the premise, I find that the 1st plaintiff is incapable in law to maintain this action against the defendant. The 1st plaintiff also failed to prove publication of the Letters for the purpose of a defamation claim. The above are sufficient to dispose of the 1st plaintiff’s claim and I dismiss the same.
167. I shall now proceed to consider other grounds of defence put forward by the defendant. As these grounds of defence are pleaded to resist claims of both plaintiffs, I shall consider them in such context on the assumption that contrary to my above ruling, the 1st plaintiff is entitled to sue and maintain this action of defamation.
Whether words defamatory
168. The torts of libel is the publication of the matters (usually words) conveying a defamatory imputation. The burden of proof lies on the plaintiff. As stated in Lo Ki Chung v Hong Kong Nam Hoi (Sha Tau District) Association Ltd [2004] HKEC 868 at para 49:-
“The complaint must plead in his statement of claim and prove at trial the defamatory imputation which he contends the words complained of, in their natural and ordinary meaning, convey.”
169. In determining whether words are defamatory, there are two stages: (1) to decide what they mean; and (2) to decide whether the meaning is defamatory (Gatley(supra) at para 2.1).
170. In determining the meaning of words in a libel action, the words are to be construed in their natural and ordinary meaning. Natural and ordinary meaning of the words refer to the meaning in which reasonable people of ordinary intelligence, with the ordinary person’s general knowledge and experience of worldly affairs, would be likely to understand them. No evidence of their meaning or of the sense in which they were understood is admissible. As pointed out by Le Pichon J (as she then was) in Hung Yuen Chan Robert v Hong Kong Standard Newspapers Ltd & Ors (unrep., HCA 9417/1994, 25 July 1996) at para 21 that:-
“Whether the words complained of are defamatory is a question of construction and not of evidence.”
171. The question is what would the words convey to the mind of the ordinary, reasonable, fair‑minded reader? (Gatley (supra) at para 3.17)
172. The natural and ordinary meaning of words may be either the literal meaning or it may be implied or inferred or an indirect meaning. It is immaterial whether the defamatory imputation is conveyed by words of direct assertion or by suggestion, for insinuation may be defamatory as an explicit statement. (Gatley (supra) at para 3.18)
173. As stated by Lord Reid in the Lewis case (supra) at 258:-
“There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs. …
What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning.”
174. In determining the natural and ordinary meanings of words, Neill LJ stated in Hartt v Newspaper Publishing plc(The Times, 9 November 1989) that:-
“The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in 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.”
175. Where a judge is sitting alone to try a libel action without a jury, the only questions he has to ask himself are: “Is the natural and ordinary meaning of the words that which is alleged in the statement of claim?” and: “If not, what, if any, less injurious defamatory meaning do they bear?” (per Diplock LJ in Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 176) After the natural and ordinary meanings are ascertained, the court will move on to decide on whether the meanings of the words are defamatory. The learned editors of Gatley (supra)stated at para 1.7 that:-
“In layman’s terms, words are defamatory when they cause harm to reputation. However, there is no wholly satisfactory legal definition of the term. Three formulae have been particularly influential: (1) would the imputation tend to ‘lower the plaintiff in the estimation of right-thinking members of society generally’? (2) would the imputation tend to cause others to shun or avoid the claimant? (3) would the words tend to expose the claimant to ‘hatred, contempt or ridicule’?”
176. It was stated in Tolley v Fry [1930] 1 KB 467 at p 479 that:-
“Words are not defamatory unless they amount to an attack on a man’s reputation or character; they must tend to disparage him in the eyes of the average sensible citizen. Words are not actionable as defamatory, however much they may damage a man in the eyes of a section of the community, unless they also amount to disparagement of his reputation in the eyes of right thinking men generally. To write or say of a man something that will disparage him in the eyes of a particular section of the community, but will not affect his reputation in the eyes of the average right thinking man, is not actionable within the law of defamation.”
177. When considering if the words are defamatory, the court shall consider the words as a whole. The learned editors of Gatley (supra) had summarized the general approach at para 3.14 as follows:-
“(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naive but he is not unduly suspicious. He can read between the lines. He can read in 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 anotherthe words might be understood in a defamatory sense.”
The 1st Words
178. The defendant pleaded that the true meanings of the 1st Words were:-
(1) to raise the issue (inter alia) concerning the propriety of the time and date of the OctoberMeeting which would make it very difficult for those owners who had to work to come to attend the meeting by 6 pm;
(2) to invite the owners of the Estate to consider the ability of the Management Committee to handle the relocation of the Pipes in the light of the matters pleaded in the defence and particularly when the 2nd plaintiff signed the Renovation Contract with the Contractor before there was any agreement or proposal to effect the relocation of the Pipes in the Middle Units;
(3) to invite the owners of the Estate to consider whether the relocation of the Pipes would be in contravention of any relevant provisions of the Buildings Ordinance in respect of which the defendant had written to the Housing Authority and the Building Department with a view to invite them to comment and/or clarify on the legality of the Renovation Work and the Pipe Work; and
(4) to point out as a matter of fact that when the defendant tried to study the contents of the Renovation Contract,he was not allowed to make any copy of the contract and was only permitted to read the contract at the Management Office during office hours which made it difficult for him to consider carefully the contents of the Renovation Contract.
179. The plaintiffs pleaded four stings in the 1st Words (see para 34 above).
180. In the 1st Words, the defendant asked the question: 〝法團及管理委員會是否故意令大家未克出席呢？〞 (Emphasis added). Such words did not simply raise the issue concerning the propriety of the time and date of the October Meeting. The defendant queried whether the 1st plaintiff and the Management Committee were deliberately preventing the owners from attending the October Meeting. The natural and ordinary meaning of these words bear the meaning pleaded in para 5(1) of the statement of claim, ie the 1st and 2nd plaintiff improperly attempted to prevent the members of the 1st plaintiff from attending the October Meeting. Such meaning was defamatory. The plaintiffs proved the 1st sting in the 1st Word.
181. In the 1st Words, the defendant stated that〝由於主席不同意提供副本給我們詳閱及須辦公時間到管理處查閱，時間安排上令我有些困難。〞 I agree that the defendant was only stating a fact. The defendant did not state that he was unable to access to the Renovation Contract. He only stated the difficulties encountered. The natural and ordinary meaning of these words did not mean that the plaintiffs intentionally prevented the defendant from gaining access to review the Renovation Contract as pleaded in para 5(2) of the statement of claim (emphasis added). I find that the plaintiffs had failed to prove the 2nd sting in the 1st Words.
182. In the 1st Words, the defendant stated that〝在處理上述遷移污水渠工程中，我們不相信現任管理委員會的能力，尤其是在與工程公司簽約前，未有設立徵詢期，今天我們終於接到一個遲來的通告，就是顧問公司的測量師陳國良先生於九月二十四日晚七時到本苑開始了解或解答我們各業戶的問題。但可惜的是在未弄清一切前便與工程公司簽訂近8百萬元的工程合約。我們是否再容許他們繼續負責該項工程的往後運作？如果他日需要各業戶集資〔如最終工程超支〕，我們願意額外科錢嗎？又或他們做的工程是有違香港建築條例而要把近來所做的工程還原本來面貌，我們可承擔這一切嗎？〞
183. These words did not only invite the owners to consider the ability of the Management Committee to handle the relocation of the Pipes. Their natural and ordinary meaning means that the 1st and 2nd plaintiffs were acting improperly and/or incompetently in concluding the Renovation Contract. Such words are defamatory. The plaintiffs had proved the 3rd sting in the 1st Word.
184. In the 1st Words, the defendant stated that: 〝又或他們做的工程是有違香港建築條例而要把近來所做的工程還原本來面貌，我們可承擔這一切嗎？本人早前已致信給屋宇署及房屋署獨立審查組詢問就本苑的情況是否有違反香港建築條例，而他們的回覆是在研究中。〞
185. These words not only invited the other owners of the Estate to consider whether the relocation of the Pipes would be in contravention of any relevant provisions of the Buildings Ordinance in respect of which the defendant had written to the Housing Authority and the Building Department to invite them to comment and/or clarify on the legality of the Renovation Work and the Pipe Work. They meant that there was a possibility that the Renovation Workwas in contravention of the Buildings Ordinance. Reading between the lines, they suggested that the 1st plaintiff had entered the Renovation Contract which might contravene the Buildings Ordinance or the 1stplaintiff had entered the Renovation Contract without ensuring that it would not contravene the Buildings Ordinance. Such acts of the plaintiffs might cause loss to the owners. These words are defamatory. The plaintiffs also proved the 4th sting in the 1st Words.
The 2nd Words
186. The defendant pleaded that the true meanings of the 2nd Words were:-
(1) to invite the owners to consider whether they were satisfied with the Renovation Work and to know more about the Renovation Work so as to protect their own rights and interests;
(2) to invite the owners to discuss whether they were confident to allow the Management Committee to continue to handle the Renovation Work;
(3) to raise the defendant’s concerns as to whether the relocation of the Pipes would constitute a breach of the DMC and the relevant statutory provisions and whether the validity of the insurance coverage of the Estate would be affected when the Renovation work would alter the outlook features of the buildings of the Estate; and
(4) to propose that the 1st plaintiff should warrant to the owners that the Pipe Work would be carried out in compliance with the DMC and the statutory provisions.
187. The plaintiffs pleaded that there were three stings in the 2nd Words (see para 39 above).
188. The defendant asked the following questions in the 2nd Words:-
(1) 〝您有沒有不滿意的地方？有沒有有冤無路訴的感覺？〞
(2) 〝如果工程在進行中令到室內建設有所破壞或毀壞而要重新裝修，誰付這單位的裝修費？〞
(3) 〝今次的搬渠工程，有否違反公契條款，現時大廈保險是否仍然生效？〞
(4) 〝顧問公司費用才約2萬多元，以今天香港的生活指數我們能期望怎樣的顧問服務呢？〞
(5) 〝我們是否有信心讓現時的管理委員會繼續管理這八百萬的工程？〞
189. The defendant also made the following statements in the 2nd Words:-
(1) 〝只有對今次工程認識更多才不會被賣豬仔。〞
(2) 〝據我所知合約上有一筆是作賠償用的，但主席或法團或顧問公司至今都未提一字。〞
(3) 〝我查閱過法團的所有例會會議記錄都沒有提及保險，非常擔心。〞
(4) 〝我們現在的工程是不尋常的。〞
(5) 〝我覺得在開工前，法團應得到政府有關部門及顧問拿取專業書面保証，弄清楚給各業主，保証進行中的工程是不違法及不違大廈公契的，如沒有以上兩點重要保証，各業主應該不允許工程人員進入室內開工，因為如果我們在法律上被迫還原時，在精神上及金錢上的損失將是非常嚴重的。〞
190. These words did not simply invite the other owners to consider or discuss certain matters relating to the Renovation Work or to raise certain concerns of the defendant. They suggested that the plaintiffs had not considered whether the Pipe Work would breach the DMC or the statutory provisions which might cause substantial loss to the owners if reinstatement was required. They suggested that the plaintiffs had not provided full information on the Renovation Work and the Renovation Contract to the owners. I agree with the plaintiffs that reading the 2nd Words and between the lines, their natural and ordinary and/or inferential meanings did have the meanings pleaded in para 7 of the statement of claim except that the 2ndWords did not query whether the Pipe Work had appropriate insurance coverage. The defendant’s query was whether the Renovation Work would affect the validity of the existing insurance of the Estate. The defendant had not queried the Renovation Work not being covered by insurance as alleged. Save as to the aforesaid insurance issue, I find that the plaintiffs had proved the three stings in the 2nd Words.
The 3rd Words
191. The defendant pleaded that the true meanings of the 3rd Words were to point out that:-
(1) if the Pipes were defective, the owners whom the defendant contacted did not object to replace the same, but it had to be made sure that the Pipe Work had to be carried out lawfully and reasonably and in compliance with the DMC so as to avoid any loss and the best guarantee was to obtain documentary proof in support from the relevant government departments or authority;
(2) good estate management required the active participation of the owners so as to provide effective supervision and minimize improper matters;
(3) the 2nd plaintiff behaved arrogantly in the September Briefing and his suitability to be a representative of the 1stplaintiff was questionable;and
(4) the reasonableness of the price charge for the replacement of aluminum windows in the 2007 project was of concern.
192. The plaintiffs pleaded that there were two stings in the 3rd Words (see para 44 above).
193. I agree with the plaintiffs that reading the 3rd Words and between the lines, their natural and ordinary and/or inferential meanings did have the meanings pleaded in para 9 of the statement of claim. The 3rd Words clearly suggested that the legality and DMC compliance of the Pipe Work had not been ensured. The defendant’s pleaded case also agreed that the 3rd Words did mean that the 2nd plaintiff was arrogant and was no longer suitable to represent the 1st plaintiff. I find that the plaintiffs had proved the two stings in the 3rd Words.
Findings on meanings of the 1st Words, the 2nd Words and the 3rd Words
194. I find that the plaintiffs had proved the three stings claimed in the 1st Words, the first part of the 1st sting claimed in the 2nd Words, the other two stings claimed in the 2nd Words, and the two stings claimed in the 3rd Words. There are altogether eight imputations which I shall consider below.
195. Miss Lau representing the defendant submitted that even if the 1st Words and the 2nd Words were defamatory, they did not refer to the 2nd plaintiff. (See para 50 of the closing submissions of the defendant) This I do not agree. The 1st Letter specifically referred to the 2nd plaintiff refusing to change the time for the October Meeting and refusing to provide copy of the Renovation Contract to the defendant and other owners. It also queried the Management Committee (which was chaired by the 2nd plaintiff) deliberately preventing the owners to attend the October Meeting and the ability of the Management Committee to supervise the Pipe Work. The 2nd Letter specifically referred to the 2nd plaintiff failing to explain the operation of the compensation fund provided for in the Renovation Contract. It also queried the ability of the Management Committee to supervise the Renovation Work. I find that the 1st and 2nd Letters did refer to the 2nd plaintiff and if they defamed the 2nd plaintiff, the 2nd plaintiff had the right to sue on them.
196. I shall now consider the various defences put forward by the defendant to resist the plaintiffs’ claims. I shall first consider the defence of qualified privilege which, if established, is a complete answer to the plaintiffs’ claims unless it is defeated by express malice. In this case, the plaintiffs had not pleaded express malice. If qualified privilege is not established, I shall then consider whether the defendant can successfully justify the parts complained of and whether the defence of fair comment can be made out.
Defence of qualified privilege
197. Gatley (supra) explained this defence at para 14.1 as follows:-
“There are circumstances in 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 of fact about another which are defamatory and in fact untrue. These are cases of qualified privilege (or ‘conditional privilege’ as it is sometimes called in the United States).”
198. A person is protected if the statement was fairly warranted by the occasion, ie within the scope of the purpose for which the law grants the privilege and so long as it is not shown that the statement was made with malice, ie with some indirect or improper motive or knowing it to be untrue, or with reckless indifference as to its truth.
199. Under common law, occasions of qualified privilege can broadly be classified into two categories: first, 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, secondly, 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. The classic statements of law on this subject is found in Toogood v Spyring [1824-34] All ER Rep 735 at 737-738 when Parke B said:-
“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 upon 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; and the law has not restricted the right to make them within any narrow limits.”
200. In Adam v Ward [1917] AC 309, at 318, Lord Finlay LC stated that:-
“If the communication was made in pursuance of a duty or on a matter in which there was a common interest on the party making and the party receiving it, the occasion is said to be privileged. This privilege is only qualified and may be rebutted by proof of express malice.”
201. Lord Atkinson also said at 334 in the same case that:-
“It was not disputed, in this case on either side, that a privileged occasion is, in reference to qualified privilege, 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.”
202. Of course, the privilege extends only to a communication upon the subject with respect to which privilege exists, and it does not extend to a communication upon any other extraneous matter which the defendant may have made at the same time. Anything that is not relevant and pertinent to the discharge of the duty or the exercise of right or the safeguard of the interest which creates 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, or has given to it a publicity incommensurate to the occasion. (per Lord Finlay LC and Earl Loreburn in the Adam case (supra) at 318 and 320-321)
203. Whether there is such a duty is a question of law. The court will apply the standard of the ordinary reasonable man and ask whether a duty, moral or social, as the case may be, would arise. The court will regard the alleged libel and will examine by whom and to whom it was published, when, why and in what circumstances it was published, and will see whether these things established a relation between the parties which gives rise to a social or moral right or duty. (See the Lo Ki Chung case (supra))
204. As regards the corresponding interest, Higgins J. in Howe v. Lees (1910) 11 CLR 361 said at 398:-
“The truth seems to be that the word ‘interest’, as used in the cases, is not used in any technical sense. It is used in the broadest popular sense, as when we say that a man is ‘interested’ in knowing a fact – not interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news.”
205. It is not sufficient that the defendant honestly believed that it was his duty to speak. Similarly, in deciding whether the recipient had a legitimate interest in the matter, it is not sufficient that the defendant believed that to be the case. If, in fact, the recipient did not have any such duty, there is no privileged occasion.
206. To establish the defence of qualified privilege, the defendant has to prove that it was his honest belief that what he published was true. In Horrock v Lowe [1975] AC 135 at 150, Lord Diplock had explained the honest belief for this defence as follows:-
“If he [a defendant] 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. In 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 conclusion on inadequate evidence and fail to recognise 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 is, a positive belief that the conclusions they have reached are true. The law demands no more,”
207. It had been argued in Kearns v General Council of the Bar [2003] 1 WLR 1357 that common interest cases and duty-interest cases were quite distinct. Communications in the former category attracted privilege on a wide and generous basis whilst communications in the latter category had to be much more closely scrutinized on the facts. Simon Brown LJ expressed his following view at 1368-1369:-
“30. The argument, as it seems to me, has been much bedeviled by the use of the terms ‘common interest’ and ‘duty-interest’, for all the world as if these are clear-cut categories and any particular case is instantly recognisable as falling within one or other of them. It also seems to me surprising and unsatisfactory that privilege should be thought to attach more readily to communications made in the service of one’s own interests than in the discharge of a duty – as at first blush this distinction would suggest. To my mind an altogether more helpful categorisation is to be found by distinguishing between, on the one hand, cases where the communicator and the communicatee, are in an existing and established relationship (irrespective of whether within that relationship the communications between them relate to reciprocal interests or reciprocal duties or a mixture of both) and, on the other hand, cases where no such relationship has been established and the communication is between strangers (or at any rate is volunteered otherwise than by reference to their relationship). …… Once the distinction is made in this way, moreover, it becomes to my mind understandable that the law should attach privilege more readily to communications within an existing relationship than to those between strangers. The latter present particular problems. I find it unsurprising that many of the cases where the court has been divided or where the defence has been held to fail have been cases of communications by strangers.”
208. The defendant and the recipients of the Letters were owners of the Estate. They together constituted the 1st plaintiff. The defendant was also the representative of those owners who had requested the October Meeting. Both the defendant and the recipients of the Letters were people eligible to attend and vote at the October Meeting. There was existing relationship between the defendant and the recipients of the Letters.
209. The Estate had contractually committed to renovation work worth $7.65 million (in the words of the defendant about $8 million). The properties of the defendant and the recipients of the Letters would be affected by the Renovation Work and the Renovation Contract. They had common interests in the Renovation Work and the Renovation Contract. They also had common interests in the subject matters of the October Meeting.
210. The defendant had doubts as to whether the Renovation Work which included the Pipe Work would be in breach of the statutory provisions and the DMC. He was concerned whether the Renovation Work would affect the validity of the existing insurance of the Estate. He inspected the Renovation Contract and the meeting minutes of the Management Committee to search for answers. He also wrote to the ICU to seek clarification.
211. The defendant was concerned about the substantial financial commitment committed by the plaintiffs on behalf of the owners of the Estate before the method for relocation of Pipes in the Middle Units was agreed by the owners. As the Renovation Work would affect the internal part of the units, he was concerned about damages caused to the units. These were matters of common interest to the defendant and the recipients of the Letters.
212. The defendant was also concerned whether the July Resolution had been validly passed at the July Meeting when the resolution was not stated on the Agenda. The defendant organized a meeting of the Middle Units owners on 10 September 2008 to discuss his concerns which resulted in the defendant and 45 other owners joined together to issue the Joint Letter requesting holding of a general meeting of the owners to set aside the July Resolution and to dissolve the Management Committee. The defendant as representative of the requesting owners of course wished to have more owners to attend the October Meeting and to participate in the discussion relating to the Renovation Contract. When the plaintiffs issued the notice for the October Meeting setting the meeting time at 6 pm on a weekday between two general holidays, the defendant requested the plaintiffs to change the date and time for the October Meeting to enable more owners to attend the meeting. The plaintiffs turned down the defendant’s said request. The defendant issued the 1st Letter to all the other owners to set out his concerns and to urge the other owners to attend the October Meeting. In the premise, I agree with Miss Lau representing the defendant that the defendant had a social or moral duty to inform the other owners of the Estate of the information contained in the 1st Letter and the other owners also had corresponding interests to receive the information. They also had common interests on these matters.
213. The 2nd Letter was issued after the September Briefing to invite the other owners of the estate to attend a discussion to be held on 29 September 2008 before the October Meeting. In the 2nd Letter, the defendant set out the items to be discussed on the 29 September 2008 meeting and the reasons for raising these matters for discussion. The discussion was about the Renovation Contract which concerned all the owners of the Estate. I find that the defendant as convener of the discussion meeting had a duty, be it social or moral, to inform all other owners of the Estate what would be discussed at that meeting and to invite them to participate at the discussion. The other owners also had corresponding interests to receive the information contained in the 2nd Letter. These were also matters on which they had common interests.
214. The 3rd Letter was issued by the defendant on 2 October 2008, ie four days before the October Meeting, to urge the other owners to attend the October Meeting in person or by proxy. The defendant also informed them in the 3rd Letter that he was prepared to act as their proxy. As the defendant was the representative of the owners requesting the October Meeting, he had the social and moral duty to issue the 3rd Letter to urge more owners to attend the October Meeting and to inform them that he was prepared to act as their proxy. The other owners also had corresponding interests to receive the information contained in the 3rd Letter.
215. I do not accept Miss Kei’s contention that the Letters were not warranted by the occasion because it was unreasonable on the part of the defendant to publish and distribute them to all other owners of the Estate.
216. Miss Kei submitted that if the matters stated in the Letters were of the defendant’s real concerns, the defendant should have directed them to the relevant government authorities, the 1st plaintiff’s legal adviser or the representative of the Consultant. She referred to the Australian case of Guise v Kouvelis [1947] 74 CLR 102 to submit that the defence of qualified privilege was not available to the defendant as the defendant could have directed his concerns to the 1st plaintiff’s legal adviser, the representative of the Consultant or the relevant government authorities.
217. In the Guise case, the defendant accused the claimant in a loud voice in a club of cheating at cards. He relied upon an alleged moral or social duty to say what he did say, upon a claim to protect his own interests, and upon a claim to protect the common interests of himself and other members of the club. The High Court of Australia held that the interests of the defendant or of the members of the club or any social or other duty did not warrant the public statement which was actually made. It held that there was no privilege because the defendant could have reported the matter to the general committee of the club which clearly would have been privileged.
218. The conduct of the members and visitors of a club was subject to the regulations of the club administered by its general committee. The High Court of Australia held that the privilege in question was social welfare and it was not conducive to social welfare to lay down a rule that a member of a club who was doubtful of the honest, or was satisfied of the dishonesty, of another person who was in the club on a particular occasion was privileged in expressing his opinion to members of the club in general. Latham CJ said that to hold the contrary would amount to granting a wide licence to officious and interfering mischief-makers. His Lordship was of the view that whether there was such a duty or interest as claimed by the defendant had to be determined upon a consideration of the surrounding circumstances and of what is reasonable in those circumstances. The question to be asked where an interest or a social duty was relied upon was whether there was the warrant of some interest or social duty created by the “reasonable occasion or exigency”. The question was whether such an interest warranted a broadcasting in the club of any belief, if honestly held, as to the bad character of a person who happened to be in the club and who might come there again. (See the Guise case (supra) at 110-112) The High Court of Australia answered that question in the negative by majority (Dixon J dissenting). His Lordship was of the view that a report to the general committee of the club would have adequately protected the common interests of the members of the club and even of potential visitors and that there was no justification for holding that the interests of the defendant or of the members of the club or any social or other duty fairly warranted the public statement which was actually made.
219. The case before me is different. The Letters in this case were issued in respect of a general meeting of the owners of the Estate to be held on 6 October 2008. The defendant as representative of the requesting owners was providing information relevant to the October Meeting to the other owners and urging them to attend the October Meeting. I do not agree that the defendant should have sent the Letters to the people proposed by Miss Kei instead of to the other owners of the Estate. The people proposed by Miss Kei had no entitlement to attend or vote at the October Meeting which was a meeting of the owners of the Estate. Whether the owners would approve the resolutions proposed by the requesting owners for the October Meeting was a matter for the owners of the Estate. The people proposed by Miss Kei had no role to play at the October Meeting. Sending the Letters to them would not have protected the common interests of the owners of the Estate. The Guise case does not assist the plaintiffs.
220. In the words of Simon Brown LT: “the communication is made within an established relationship and is relevant to it, the necessary conditions [for a defence of qualified privilege] are satisfied.” (Original emphasis) (See the Kearns case (supra) at 1370) I find that the circumstances in which the Letters were issued by the defendant were occasions covered by qualified privilege.
221. Miss Kei further submitted that the defendant’s defence of qualified privilege failed at the outset before the stage of malice was reached because the defendant’s imputations of the illegality of the Pipe Work, the lack of insurance protection under the Renovation Contract and other problems of the Renovation Contract in the Letters could never be objectively justified from the materials which the defendant himself relied upon. Miss Kei relied on the legal principles laid down by the English Court of Appeal in Downtex Plc v Flatley [2003] EWCA Civ 1282.
222. Miss Lau submitted that the plaintiffs had not pleaded malice. They should not be allowed to rely on evidence which hinted that the defendant did not honestly believe in what he said as that would be bringing the malice point from the backdoor.
223. The defence of qualified privilege may be defeated by malice which has to be specifically pleaded. Order 82, rule 3(3) of the Rules of the District Court provides that:-
“(3) Where in an action for libel or slander the plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in his statement of claim give particulars of the facts on which he relies in support of the allegation of malice, but if the defendant pleads that any of those words or matters are fair comment on a matter of public interest or were published on a privileged occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he must serve a reply giving particulars of the facts and matters from which the malice is to be inferred.”
224. The defendant had pleaded both fair comment and qualified privilege as his defences. The plaintiffs had served their reply but had not pleaded express malice. It is not the plaintiffs’ pleaded case that the defendant was actuated by express malice and no evidence had been adduced at the trial to show express malice on the part of the defendant. However, this does not relieve the defendant from proving that he honestly believed in the truth of the matters stated in the Letters before he might establish the defence of qualified privilege. As Lord Buckmaster LC stated in London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 23 that:-
“Again, it is, I think, essential to consider every circumstance associated with the origin and publication of the defamatory matter, in order to ascertain whether the necessary conditions are satisfied by which alone protection can be obtained, but in this investigation it is important to keep distinct matter which would be solely evidence of malice, and matter which would show that the occasion itself was outside the area of protection.”
225. In the Downtex case the English Court of Appeal found that imputation of insolvency or near insolvency of the claimant could not be objectively justified from the materials which the defendants themselves relied upon as founding the plea of qualified privilege. There was no reason pleaded or relied upon as to why the suppliers (the recipients of the communication) might be concerned or should concern themselves with the claimant’s financial position as there was no evidence to show that the claimant’s creditors did not get paid and thus the suppliers who got paid would have no interests in the communication. The Court found that the recipients of the communication did not have “reciprocal” interest in the matters covered by the communication. The English Court of Appeal held that in the circumstances of the Downtex case, the “qualified privilege” defences advanced were bad in law.
226. The case before me is clearly distinguishable from the Downtex case. There was pre-existing relation between the defendants and the other owners, ie the recipients of the Letters. The defendant being one of the requesting owners for the October Meeting had a duty to provide information on matters relating to the Renovation Work and the October Meeting to the other owners and the other owners had the reciprocal interests of receiving the same. The matters raised in the Letters were matters of common interest to the defendant and the other owners.
227. I shall deal with in more details the various imputations complained of by the plaintiffs when I considered the defence of justification. Suffice it to say for the present purpose that I find that the defendant had satisfied me that he honestly believed that the facts and matters stated in the Letters were true. Even if the defendant had jumped to conclusions which were irrational, reached without adequate inquiry or based on insufficient evidence, this was not enough to constitute malice if he nevertheless did believe in the truth of the statement itself. The only kind of recklessness which destroys qualified privilege is indifference to its truth or falsity. (per Lord Diplock in the Horrocks case (supra) at 152-153) Viscount Dilhorne also expressed similar views in the Horrocks case (supra) at 145-146 when he stated that:-
“Can a man who believes what he says on a privileged occasion to be true and which if true would not be an abuse of the occasion be held to have made his statements ‘recklessly whether they are true or false’? Gross and unreasoning prejudice may have led him to have uttered them recklessly whether they were true or false, but if he believes the truth of what he said, can he at the same time be said to be reckless of the truth or falsity of his statements? May be that others with more judgment and more wisdom would not have formed the same belief, but if, in fact, he believes what he says, he cannot at the same time, in my opinion, be reckless whether it is true or false. …
......
While it is true that a man may believe in the truth of what he says and yet be reckless whether his belief is well founded or not, recklessness whether the belief is well founded, while relevant to the question whether the defendant believed what he said, is not, if the defendant in fact believed, evidence of malice. If it were, then the man who honestly and out of a sense of duty made observations based on information found to be inaccurate or incorrect would have his freedom of speech on a privileged occasion unduly restricted.”
228. Lord Diplock further pointed out in the Horrcks case at 151 that:-
“But where, as in the instant case, conduct extraneous to the privileged occasion itself is not relied on, and the only evidence of improper motives is the content of the defamatory matter itself or the steps taken by the defendant to verify its accuracy, there is only one exception to the rule that in order to succeed the plaintiff must show affirmatively that the defendant did not believe it to be true or was indifferent to its truth or falsity. Juries should be instructed and judges should remind themselves that this burden of affirmative proof is not one that is lightly satisfied.
The exception is where what is published incorporates defamatory matter that is not really necessary to the fulfillment of the particular duty or the protection of the particular interest upon which the privilege is found. Logically it might be said that such irrelevant matter falls outside the privilege altogether. But if this were so it would involve 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 fulfillment of the duty or the protection of the right upon which the privilege was founded. As Lord Dunedin pointed out in Adam v. Ward [1917] A.C. 309, 326-327 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. Here, too, judges and juries should be slow to draw this inference”
229. The defendant might have misunderstood the provisions of BMO, the Buildings Ordinance and the DMC. He might have misunderstood the content of the Renovation Contract and the 2007 aluminum windows replacement contract. However, he formed his belief on the matters stated in the Letters after he had spent hours in inspecting documents in the Management Office, discussing with other owners and making enquiries with the ICU. I do not see gross and unreasoning prejudice on his part. Even if there was gross and unreasoning prejudice, it does not per se destroy the privilege. If what it does is to cause the defendant honestly to believe what a more rational or impartial person would reject or doubt, he does not thereby lose the protection of the qualified privilege. (per Lord Diplock in the Horrocks case (supra) at 152) The plaintiffs in this action failed to prove affirmatively that the defendant did not believe the matters stated in the Letters to be true or was indifferent to its truth or falsity. The Downtex case does not assist the plaintiffs and I reject the said contention of Miss Kei. I find that the defendant honestly believed in what he had stated in the Letters.
230. A man who honestly believes what he says may yet be actuated by malice and such malice may be established by other evidence then the inference to be drawn from the falsity of the statement. Express malice is not in issue in this case. There was no evidence, indeed no suggestion, that the occasion gave rise to qualified privilege was misused.
231. I find that the defence of qualified privilege is established for all the Letters. It is a complete answer to the plaintiffs’ claims. On this basis, the plaintiffs’ claims are dismissed. In light of my aforesaid finding, it is not necessary for me to deal with the defences of justification and fair comment advanced by the defendant. However, for the sake of completeness, I shall set out below my views on those issues.
Defence of justification
232. The defendant pleaded that what he said in the 1st Words, the 2nd Words and the 3rd Words were true in substance and in fact.
233. For the purpose of justification, “there must be a final finding on the merits by a court (usually a jury) on admissible evidence that the defamatory ‘sting’ of the allegation complained of is objectively true as a matter of fact. The defendant does not have to prove that every word he/she published was true. He/she has to establish the ‘essential’ or ‘substantial’ truth of the sting of the libel.” (per Brooke LJ in Chase v News Group Newspapers [2002] EWCA Civ 1772 at para 34) This has been codified under section 26 of the Defamation Ordinance set out in para 48 above which is also relied on by the defendant.
234. Dealing with the defence of justification is a two-stage process. The court must first decide whether the defendant has proved to its satisfaction all or at least some of the factual propositions asserted by the particulars of justification. The court must then decide whether the whole of the facts which have been proved are such as to establish the essential or substantial truth of the “sting of the libel”. (See The Chase case (supra))
235. In the Chase case (supra), Brooke LJ recognized that the sting of a libel might be capable of different meanings which might be categorized into the following three levels (see para 45 of judgment of the Chase case (supra)):-
(1) Level 1: the claimant has in fact committed some impugned act;
(2) Level 2: there are reasonable grounds to suspect that the claimant has committed such impugned act; and
(3) Level 3: there are grounds for investigating whether the claimant has been responsible for such impugned act.
236. The approach to the defence of justification for different levels is different. In the words of Lord Devlin: “there could have been three distinct categories of justification – proof of the fact of an inquiry, proof of reasonable grounds for it and proof of guilt.” (See the Lewis case (supra) at 282)
237. When an allegation is made with the highest degree of certitude (ie level 1 in the Chase case), the imputation of guilt must be defended. (See para 11.13 of Gatley (supra))
238. In order to justify a publication to the effect that there are reasonable grounds to suspect that a claimant is guilty of some impugned act (ie level 2 in the Chase case), a defendant has to establish that there are objectively reasonable grounds for such suspicion. A defendant may also rely on matters which do not directly focus on some conduct on the claimant’s part giving rise to a relevant suspicion. (See paras 48-51 of the Chase case (surpa))
239. The position where the defendant seeks to justify a Chase level 3 meaning is less clear. The learned editors of Gatley (supra) suggested at para 11.13 that such grounds might exist independently of the conduct of the claimant. They might even base on pure hearsay and the repetition rule might not apply to Chase level 3 imputation.
240. Miss Lau submitted that the level of certainty for the imputations in this action was level 2 in the Chase case. I shall consider the level of certainty of each imputation when the same is discussed below.
The 1st Words
241. The imputations established by the plaintiffs in respect of the 1st Words were:-
(1) the plaintiffs improperly attempted to prevent the owners from attending the OctoberMeeting (the “1st Imputation”);
(2) the plaintiffs were acting improperly and/or incompetently in concluding the Renovation Contract (the “2nd Imputation”); and
(3) there is a possibility that the Renovation Work was in contravention of the Buildings Ordinance (the “3rd Imputation”).
The 1st Imputation
242. For the 1st Imputation, the sting contained in the following question put forward by the defendant in the 1st Letter:-
〝法團及管理委員會是否故意令大家未克出席呢？〞
243. If the plaintiffs had done something deliberately to make the owners unable to attend the October Meeting, they had improperly attempted to prevent the owners from attending the meeting. The defendant did not allege that the plaintiffs had deliberately prevented the owners from attending the October Meeting. He only queried whether the 1st plaintiff and the Management Committee chaired by the 2nd plaintiff had acted with the intent of making the owners unable to attend the meeting. I agree that the imputation falls into level 2 of the Chase case.
244. To establish the defence of justification in level 2 cases, it is necessary for the defendant to prove the primary facts and matters giving rise to reasonable grounds of suspicion objectively judged. Generally, it is necessary to plead allegations of fact tending to show that it was some conduct on the claimant’s part that gave rise to the grounds of suspicion. A defendant cannot rely on post-publication events to establish the existence of reasonable grounds. The issue has to be judged as at the time of publication. In this case, the 1st Letter was issued on 22 September 2008. The defendant may not rely on events occurred after 22 September 2008 to justify the imputations in the 1st Words. But the defendant may rely upon facts subsisting at the time of publication of the 1st Letter, even if he was unaware of them at that time. A defendant may not confine the issue of reasonable grounds to particular facts of his own choosing. The issue has to be determined against the overall factual position as it stood at the material time including any true explanation the claimant may have given for the apparently suspicious circumstances pleaded by the defendant. (See para 11.13 of Gatley (supra))
245. The October Meeting was convened upon a request made by the defendant and 45 other owners on 28 August 2008 to overturn the JulyResolution. On 12 September 2008, the Management Committee gave notice to convene the OctoberMeeting on 6 October 2008 at 6 pm. On 15 September 2008, the defendant wrote to the 2nd plaintiff requesting to change the date and time of the OctoberMeeting. By a letter dated 17 September 2008, the 2nd plaintiff refused the defendant’s said request. These facts were not in dispute.
246. The defendant pleaded that since 6 October 2008 was a working day between the Sunday on 5 October 2008 and a public holiday on 7 October 2008, many owners might leave Hong Kong for their holidays. It could not be disputed that 5 October 2008 was a Sunday and 7 October 2008 was a public holiday. In his letter dated 15 September 2008, the defendant asked to change the date of meeting to 9 October 2008 which was refused by the 2nd plaintiff.
247. The defendant further pleaded that to have the meeting commenced at 6 pm would be very inconvenient to many owners who had to work and could not attend the meeting by 6 pm. In his letter dated 15 September 2008, the defendant requested the meeting time to be changed to after 7 pm. This again was refused by the 2nd plaintiff.
248. The aforesaid pleaded matters (ie the reasons for the requests) had been stated in the defendant’s letter dated 15 September 2008.
249. Miss Lau submitted that the 2nd plaintiff could not explain why he picked 6 pm while the monthly meeting of the Management Committee was held at 8:30 pm.
250. All meeting minutes of the Management Committee produced to the court showed that these meetings were all commenced at 8:30 pm. These included meetings of the Management Committee held between 2006 and 2008 on 5 January 2006, 24 February 2006, 28 April 2006, 26 May 2006, 5 June 2006, 25 August 2006, 29 November 2006, 24 January 2007, 15 December 2007, 25 March 2008, 25 April 2008, 28 June 2008 and 28 August 2008.
251. The meeting minutes of the Management Committee meeting held on 28 August 2008 did not discuss the request of the defendant and the other 45 owners to convene a general meeting. The meeting minutes stated that the next meeting of the Management Committee would be held on 26 September 2008. The plaintiffs adduced no evidence to show that the Management Committee had met between 28 August 2008 and 26 September 2008. The notice for the OctoberMeeting was issued on 12 September 2008 and signed by the 2nd plaintiff. As no meeting was held by the Management Committee between 28 August 2008 and 12 September 2008, I accepted that the time for the October Meeting stated on the said notice was decided by the 2nd plaintiff. The 2nd plaintiff might have consulted some other members of the Management Committee but the decision was not a decision of the Management Committee.
252. In the letter dated 17 September 2008 signed by the 2nd plaintiff as the chairman of the Management Committee, the plaintiffs refused the defendant’s request to change the date and time of the October Meeting. In the said letter, the 2nd plaintiff stated that:-
〝查本人早前收到百份之五之業主聯署函件要求召開業主大會討論所指事宜，本人亦依法例要求於2008年9月12日通告各業主於2008年10月6日召開大會。
惟於2008年9月15日收到聲稱為召集人身份之閣下，來函要求更改開會時間、日期、程序及次序等。由於本人已按照建築物條例附表3第1〔2〕條：「在不少於5%的業主要求下，管理委員會主席須在收到要求後14天內，就業主所指明的事宜召開法團的業主大會，並在收到要求後的45天內舉行該業主大會。」於2008年10月6日召開業主大會，因此對閣下之要求更改大會日期及時間等，實無法答允。因為不論大會於任何時間舉行均可能有業戶無暇出席，再者，大會通告已經派發給各業戶，業主如無暇出席大會，解決辦法只有授權可信賴的人仕代為出席投票。〞
253. The plaintiffs relied on paragraph 1(2) of Schedule 3 of the BMO and the fact that the notice had been issued to the owners as grounds for refusing the defendant’s request.
254. Paragraph 1(2) of Schedule 3 of the BMO does not prohibit changing date and time of meeting after issuance of notice for the meeting. The time and date proposed by the defendant in his letter dated 15 September 2008 would not take the October Meeting beyond the 45 days period stipulated in the BMO. The fact that meeting notice had already been issued to the owners was neither here nor there.
255. The defendant had stated in his letter dated 15 September 2008 the reasons for his requests to change the date and time of the October Meeting. The defendant did not accept the grounds cited by the plaintiffs in refusing his request. On the same date of the 1st Letter (ie 22 September 2008), the defendant also sent the following letter to the 2nd plaintiff (p 471):-
〝法團管理委員會主席2008年9月17日的來信已經收到。
我們感到非常失望，我們觀點是
〔一〕業主要求召開業主大會的信件於8月29日送交管理處轉交主席，即主席必須於45天內，即10月14日或之前依法例召開業主大會；
〔二〕管委會主席在9月12日發出通告，於10月6日下午5時召開業主大會，即發信當天距離開會日期有23日；
〔三〕9月15日召集人發出信件，要求更改開會日期、時間及依5%業主要求開會的議程次序進行會議，即發信當天距離10月6日開會日期有21日；
〔四〕9月17日管委會主席發信表明拒絕更改日期及時間，即發信當天距離10月6日開會日期有19日。
依據上述四點事項的流程記錄，主席是有足夠時間糾正不合理的事情。
依現行條例，召開業主大會通告須於開會日期前14日發出，明顯是只要主席合理思考、合理行事、合理決定，在法例容許下，是有足夠時間更改開會日期和時間，使更多業主能出席業主大會，關心切身問題；
主席，你來信內容說不論大會於任何時間舉行均可能有業主無暇出席 … 解決辦法只有授權可信賴的人士代表出席投票。這好明顯是主席無替他人著想，因為很多業主都是在職人士，要準時出席會議實有困難，你是否要想出席大會的業主向顧 [sic] 主請假，才能參加會議嗎？
一般來說，只有主席及管委會去鼓勵更多業主出席會議，共同參與大廈管理事務；那有主席決定開會時間是在一般人的返工時間內呢？
現行法例，雖然並無規管開會時間，主席定開會時間可以是早上8時、下午3時或晚上11時，這都是合法，但是否合情合理，心 [sic] 思熟慮行事，公道自在人心。
我等堅持及重申9月15日的信件內容的理據，要求更改開會日期、時間及議程次序。〞
256. In support of the plea of justification, Miss Lau submitted that the 2nd plaintiff refused to change the time of the October Meeting on 17 September 2008 but could actually decide to change the same on his own very easily on 24 September 2008 at the September Briefing. As pointed out above, a defendant may not rely on post-publication events to establish the existence of reasonable grounds to suspect. The defendant could not rely on the event occurred on 24 September 2008 to justify the 1st Imputation which was published on 22 September 2008.
257. Objectively judged the permissible proven facts and matters, I agree that the defendant had reasonable grounds to suspect that the plaintiffs had improperly attempted to prevent the owners from attending the October Meeting. I find that the 1st Imputation was true in substance and in fact.
The 2nd Imputation
258. The 2nd Imputation was that the plaintiffs were acting improperly and/or incompetently in concluding the Renovation Contract.
259. In the 1st Words, the defendant stated that 〝在處理上述遷移污水渠工程中，我們不相信現任管理委員會的能力〞. The defendant further asked the following questions:-
(1) 〝我們是否再容許他們繼續負責該項工程的往後運作？〞
(2) 〝如果他日需要各業戶集資(如最終工程超支) ，我們願意額外科錢嗎？〞
(3) 〝又或他們做的工程是有違香港建築條例而要把近來所做的工程還原本來面貌，我們可承担這一切嗎？〞
260. I am of the view that the degree of certainty of the 2nd Imputation falls within level 1 of the Chase case. The defendant had to defend the imputation of guilt.
261. The defendant pleaded that the July Resolution was not specified in the Agenda and was in breach of the BMO. It was unlawfully and invalidly passed at the July Meeting.
262. The defendant further pleaded that up to and during the JulyMeeting, the 2nd plaintiff had failed to explained to the owners of the Middle Units as to how the relocation of the Pipes was to be effected in the Middle Units and whether the relocation of the Pipes would be in breach of any statutory provisions and the DMC and how the contractor would be able to gain access to individual unit to carry out the Pipe Work in the event of objection from individual owner.
263. The defendant pleaded that the proposal of the Consultant in respect of relocation of the Pipes inside the Middle Units was strongly opposed by the owners of the Middle Units. Such proposal might contravene the provisions of the Buildings Ordinance including section 3A of the Building (Planning) Regulations and clause 5(c)(2) and clause 6(a) of the House Rules of the DMC which were not considered or explained by the 2nd plaintiff at the JulyMeeting.
264. The defendant pleaded that in the absence of a valid resolution for the relocation of the Pipes and any agreement or proposal as to how the relocation of the Pipes in the Middle Units was to be effected, the 2nd plaintiff proceeded to pass the resolution at the JulyMeeting for the selection of contractor for the Renovation Work which included the Pipe Work and signed the Renovation Contract with the Contractor on 4 August 2008 for the sum of $7,650,000. The Contractor proceeded to commence the Renovation Work on 20 August 2008 without any agreement or proposal to effect the relocation of the Pipes in the Middle Units.
265. The parties had disputes as to whether the July Resolution was valid or not. I do not think that I need to go into details of the parties’ arguments and to rule on the validity of the JulyResolution for the purpose of these proceedings. The 1st Letter did not assert that the July Resolution was invalid. The 1st Letter did not even mention the JulyResolution. The sting of the 2nd Imputation was not in whether the JulyResolution was valid. The fact was that the defendant had questioned the validity of the JulyResolution which led to the October Meeting. This was only the background under which the 1st Letter was issued.
266. In the 1st Letter, the defendant referred to lack of consultation period and the signing of Renovation Contract before details were finalized. He also stated that some terms of the Renovation Contract were unreasonable and difficult to understand (令人費解).
267. The 2nd plaintiff signed the Renovation Contractor with the Contractor on 4 August 2008. The Renovation Contract was a lump sum contract for a substantial sum of $7,650,000. The Contractor had commenced work on about 20 August 2008. There was no dispute that the method for relocation of the Pipes in the Middle Unit had not been finalized when the Renovation Contract was signed and when the Renovation Work commenced. On 12 September 2008, the 1st plaintiff had to arrange the SeptemberBriefing to be held on 24 September 2008 for Mr Chan of the Consultant to explain to the owners of the Middle Units as to how the Pipes in their units would be relocated.
268. Miss Kei submitted that the defendant knew that the exact amount of the consideration of the Renovation Contract was $7,650,000 but the defendant put close to $8 million (近8百萬元) to describe the contract price in the 1st Letter. She further submitted that for those who had not participated in the owners’ meetings on 12 January 2008 and 19 July 2008, they would not know that the exact amount of the contract price was $7.65 million.
269. The defendant did not state in the 1st Words that the contract sum for the Renovation Contract was $8 million. He stated that it was close to $8 million. If the defendant used a complete million figure to describe the contract sum, 8 million was closer to $7.65 million than 7 million. Although such description was not accurate to the dollar, it was not inaccurate when it was qualified by the adjective “close to” (〝近〞). The readers reading the 1st Letter would know that the contract sum for the Renovation Contract was not exactly $8 million. In any event, I do not see that Miss Kei’s above criticism will defeat the defendant’s plea of justification. As stated in para 11.8 of Gatley (supra):-
“The requirement that the defendant need prove only the substantial truth of what has been published entails that a defence of truth may succeed even though the publication was inaccurate in a number of respects. If the defendant can prove that the main charge or gist of the libel is true, a slight inaccuracy in one or more of its details will not prevent him from succeeding in a defence of truth.”
270. The main charge or gist of the libel was that the plaintiffs had signed a lump sum contract of a substantial amount before details for the Pipe Work had been finalized. I find that the defendant had proved that this was true in substance and in fact.
271. The defendant said that no consultation period was provided before the signing of the Renovation Contract. The plaintiff had adduced evidence to show that the drainage pipes problem had been an issue for the Estate since 2002/2003 and the owners had passed a resolution on 12 January 2008 to engage a consultancy firm to study this problem. The plaintiffs also adduced evidence to show that the Consultant had attended the July Meeting to explain the Renovation Work to the owners. It is noted that the owners were also required to select the contractor for the Renovation Work at the July Meeting immediately after Mr Chan’s briefing. In such case, no consultation period was provided before the signing of the Renovation Contract.
272. The 1st plaintiff had signed the Renovation Contract before finalizing how the Pipes in the Middle Units would be relocated. The defendant had reasonable grounds to suspect that extra payments might be required in future. Miss Kei submitted that at the time of writing the 1st Letter, there was nothing to suggest that the owners would be required to make extra payments for the purpose of financing the works under the Renovation Contract in the future. The defendant did not assert in the 1st Letter that the owners had to make extra payment. He only expressed his worry. Based on proven facts, there were reasonable grounds for the defendant to suspect that extra payments might be required.
273. I agree that the plaintiffs were acting improperly and/or incompetently in concluding the Renovation Contract in contractually committed the 1st plaintiff to a lump sum contract for a substantial sum when how to relocate the Pipes in the Middle Units had not been finalized and there was reasonable grounds to suspect that extra payment mights be required. I find that that defendant had proved that the 2nd Imputation was true in substance and in fact.
274. Miss Kei had criticized the defendant on the following matters in respect of the 1st Letter (see para 54 of the plaintiffs’ closing submissions):-
(1) “Each of the “we” (〝我們〞) in this letter bore a different meaning and meant different combination of people.”
(2) “D could not explain why he did not list out all the owners he lined up in this letter like the one he did in the joint letter.”
(3) “While D knew as a fact that Mr K L Chan had conducted a briefing once in the owners’ meeting on 19 July 2008 and that he attended the meeting of the management committee of P1 on 28 August 2008 to answer the inquiries of the owners, he could not explain why he did not mention these 2 occasions in this letter.”
(4) “While D admitted that his only concern was over the relocation work but not over the other 2 construction works under the Contract [the Renovation Contract], he could not explain why he did not specify it in this letter.”
(5) “D could not explain why he did not specify which part of the Contract was〝不合理及令人費解〞. In fact, what he thought〝不合理及令人費解〞were only 2 clauses under the Contract, …”
275. If the 1st Letter was written by someone other than the defendant, the other writers might include different matters in the letter. For a plea of justification, the issue is whether the defendant may establish that the imputation in respect of which he is sued is substantially true. Of course, when a defendant proving his case, he may not confine to particular facts of his own choosing since the issue has to be determined against the overall factual position as it stood at the material time. However, I do not see that the aforesaid matters raised by Miss Kei would render the defendant’s plea of justification a failure.
276. I accept that the defendant had proved the 2nd Imputation substantially true.
The 3rd Imputation
277. The 3rd Imputation was that there was a possibility that the Renovation Work was in contravention of the Buildings Ordinance.
278. In the 1st Words, the defendant stated that: 〝又或他們做的工程是有違香港建築條例而要把近來所做的工程還原本來面貌，我們可承担這一切嗎？本人早前已致信給屋宇署及房屋署獨立審查組詢問就本苑的情況是否有違反香港建築條例，而他們的回覆是在研究中。〞
279. I am of the view that the degree of certainty of the 3rd Imputation fell within level 2 of the Chase case. The defendant has to prove the truth of the facts supporting his reasonable grounds to suspect.
280. Miss Kei submitted that at the time of writing the 1st Letter, there was nothing to suggest that the Pipe Work contravened the Buildings Ordinance.
281. The defendant said that as the Pipes inside the Middle Units were located away from the exterior walls, the Consultant proposed at the July Meeting that the drainage pipes with a 6 to 8-inch housing were to run across the balcony of the unit into the exterior wall. The said proposal might contravene the provisions of regulation 3A of the Building (Planning)Regulations.
282. Regulation 3A(1) of the Building (Planning ) Regulations provides that:-
“Every opening placed on an external wall above the ground floor of any building shall be protected by a barrier which shall not less than 1100 mm high and the lowermost 150 mm of such barrier shall be built solid.”
283. The defendant had explained at the trial that the aforesaid proposed method of relocating the Pipes in the Middle Units would reduce the height of the barrier to less than 1,100 mm in contravention of the Building (Planning) Regulations.
284. The defendant had proved the primary facts and matters giving rise to reasonable grounds of suspicion objectively judged that there was a possibility that the Renovation Work was in contravention of the Building Ordinance.
285. I accept that the defendant had proved that the 3rd Imputation was true in substance and in fact.
286. The defendant pleaded that he had written a letter to the ICU on 15 December 2008 questioning the legality of the installation of new clothes-horses at the exterior walls of the buildings of the Estate as part of the Renovation Work and the ICU had replied on 15th January 2009 that according to the Buildings Ordinance, without the approval and consent of the ICU, the installation of new clothes-horses at the exterior walls of the buildings should constitute unauthorized building works.
287. As pointed out above, a defendant may not rely on post-publication events to establish the existence of a reasonable ground. In such case, the defendant might not rely on his correspondences with the ICU in December 2008 and January 2009 to substantiate his plea of justification for the 1st Letter issued on 22 September 2008.
The 2nd Words
288. The imputations established by the plaintiffs in respect of the 2nd Words were:-
(1) the plaintiffs failed to consider whether the Pipe Work was in compliance with the law and/or the DMC (the “4th Imputation”);
(2) the plaintiffs were reckless and/or incompetent and/or were acting contrary to the owners’ interest in dealing with the Pipe Work (the “5th Imputation”); and
(3) the owners were being deceived by the plaintiffs (the “6th Imputation”).
289. The 2nd Letter was undated. The plaintiffs pleaded that it was issued between 24th and 29th September 2008. The defendant said that it was issued on about 27 September 2008. I accept that the 2nd Letter was issued on or about 27 September 2008.
290. The defendant also relied on the facts and matters pleaded in support of his justification plea in respect of the 1st Words to support his plea of justification to the 2nd Words.
The 4th Imputation and the 5th Imputation
291. The 4th and 5th Imputations alleged that the plaintiffs failed to consider whether the Pipe Work was in compliance with the law and/or the DMC and the plaintiffs were reckless and/or incompetent and/or acting contrary to the owners’ interest in dealing with these works. The 5th Imputation was premised on the 4th Imputation. They could be dealt with together conveniently.
292. In the 2nd Letter, the defendant asked the questions set out in para 188 above. He also made the statements set out in para 189 above. I am of the view that the degree of certainty of the 4th and 5th Imputations fell within level 2 of the Chase case.
293. The defendant referred to possible contravention of regulation 3A of the Building (Planning) Regulations and para 6(a) of the House Rules of the DMC in support of his justification plea.
294. I have dealt with possible contravention of regulation 3A of the Building (Planning) Regulations above and do not propose to repeat myself here. Suffice it to say that I accept that the defendant had reasonable grounds to suspect that the Pipe Work might contravene the Building (Planning) Regulations.
295. Para 6(a) of the House Rules of the DMC provides that:-
“No external shades awnings or window guards shall be used in or about any building within the Estate and no owner shall paint the outside of any such building or any part thereof nor alter the exterior window glass nor do any other act or thing which would alter or affect the external appearance of any such building except such as shall have been approved in writing by the Manager.”
296. The relocation of the Pipes to the exterior walls might affect the external appearance of the buildings of the Estate. Under para 6(a) of the House Rules, this could not be done without written approval of the Manager of the Estate. As the Renovation Work including the Pipe Work was undertaken and supervised by the Management Committee and the Management Office, I do not see how they could be considered as being done without the approval of the Manager of the Estate. I see no reasonable grounds for the defendant to suspect that para 6(a) of the DMC would be breached by the Renovation Work.
297. The defendant had inspected the Renovation Contract before he issued the 2nd Letter. Miss Kei pointed out that the defendant knew that there was a 3rd party insurance policy under the Renovation Contract and a special provision of fund by the Contractor to use as compensation in relation to potential damage caused to individual owner in the course of the Renovation Work.
298. The defendant had stated in the 2nd Words that he was aware of a compensation fund in the Renovation Contract. The defendant only asserted that the plaintiffs and the Consultant had not explained how the compensation fund would be operated. The defendant’s case was that no explanation on how such compensation fund would be used had been given at all previous meetings and briefings. No evidence to the contrary had been adduced by the plaintiff. The defendant had proved this fact.
299. The queries raised by the defendant in the 2nd Words were not that there was no third party insurance for the Renovation Work but that the Renovation Work might affect the validity of the existing liability insurance of the Estate. Third party insurance coverage for the Renovation Work only confined to claims relation to the Renovation Work. Coverage of liability insurance for the Estate would be much wider. They were different. If the Renovation Work would render the liability insurance for the Estate invalid, the defendant’s concern was legitimate. However, this was not the imputation in respect of which the defendant was being sued.
300. Miss Kei submitted that the defendant used the phrase〝有冤無路訴〞only because he personally thought that the explanation from Mr Chan in relation to the Pipe Work was still “not enough” despite the briefing done by Mr Chan in the July Meeting and the September Briefing. No evidence had been adduced by the defendant to show that Mr Chan had refused to answer any questions from the owners at those briefing sessions. The defendant admitted that no one actually said those words to him. The evidence adduced before me showed that the plaintiffs had made arrangements for the owners to voice their queries in respect of the Pipe Work. I find that the defendant failed to prove the primary facts and matters to substantiate this assertion. As pointed out by Miss Kei, the defendant personally thought that the explanation from Mr Chan was not enough. This support the defendant’s case that he honest believed in what he had stated in the 2nd Letter despite the fact that such conclusion might not have been supported by adequate evidence. The defendant’s inability to justify this fact objectively does not affect his assertion of honest belief.
301. The defendant stated in the 2nd Words that: 〝顧問公司費用才約2萬多元，以今天香港的生活指數我們能期望怎樣的顧問服務呢？〞The Consultant advised the plaintiffs to proceed with tendering for the Renovation Work before the method to relocate the Pipes in the Middle Units had been finalized. I accept that the defendant had proved that he had reasonable grounds to doubt the quality of services provided by the Consultant at the modest consultancy fees paid by the 1st plaintiff.
302. Miss Kei submitted that notwithstanding the fact that the Pipes were installed inside the residential flats, the defendant alleged that the works were “unusual” because they needed to be done inside the flats. I agree that such statement of the defendant was not justified in the circumstances of this case.
303. Miss Kei further submitted that at the time of writing the 2nd Letter, there was nothing to suggest that someone had suffered any loss “psychologically” and “financially” or that there was a risk that the owners would be forced to “reinstate” their flats in the future because of the illegality of the Renovation Work.
304. The defendant in the 2nd Letter did not assert that any owner had already suffered any loss. He only raised a suspicion as to whether the Renovation Work would be in breach of the law. He had proved that there were reasonable grounds for his said suspicion. If the Renovation Work was unlawful, there was of course a risk that the owners would be forced to “reinstate”. I do not accept Miss’s Kei’s said contention.
305. I find that the defendant had proved that he had reasonable grounds to suspect that the plaintiffs had failed to consider whether the Pipe Work was in compliance with the law but he failed to prove that he had reasonable grounds to suspect that the plaintiffs had failed to consider whether the Renovation Work was in compliance with the DMC.
306. With the possibility that the Renovation Work might contravene the Building (Planning) Regulations and without finalizing the method to relocate the Pipes in the Middle Units before the plaintiffs signed the Renovation Contract and allowing the Renovation Work to commence, I accept that the defendant had proved the primary facts and matters giving rise to a reasonable suspicion objectively judged as to the plaintiffs were reckless and/or incompetent and/or were acting contrary to the owners’ interest in dealing with the PipeWork.
307. Although I am of the view that the defendant did not have reasonable grounds to suspect that the plaintiffs had failed to consider whether the Renovation Work was in compliance with the DMC, this does not render the plea of justification unavailable to the defendant by virtue of section 26 of the Defamation Ordinance.
308. Miss Kei criticized the defendant that while he raised his concerns in the 2nd Letter to all owners, he had never asked the 1st plaintiff’s legal adviser or Mr Chan (either orally or in writing) the same questions. The defendant had made his own study and investigation before he wrote the 2nd Letter. I do not agree that the defendant should be required to make certain specific investigation which the plaintiffs considered appropriate before he was availed of the plea of justification. The issue is whether he might establish that the relevant imputation was substantially true.
The 6th Imputation
309. The 6th Imputation stated that the owners were being deceived by the plaintiffs.
310. The words in the 2nd Words giving rise to this imputation were:
〝只有對今次工程認識更多才不會被賣豬仔。〞
311. In the context when this statement was made in the 2nd Letter, I am of the view that the degree of certainty of this imputation fell within level 2 of the Chase case.
312. Miss Kei submitted that at the time of writing the 2nd Letter, there was nothing to suggest that someone was betrayed or any work done under the Renovation Contract was illegal.
313. Miss Lau submitted that the owners had been told that the Renovation Contract was divisible in that if the Pipes in the Middle Units were not relocated, contract fee for that part of relocation needed not be paid which was in fact not the case as the Renovation Contract was a lump sum contract. Miss Lau further submitted that the owners were led to believe that the Renovation Contract did not contravene the law and/or the DMC and that it was signed in the interest of the owners.
314. I have dealt with the possible breach of the Building (planning) Regulations and the DMC above and shall not repeat myself here.
315. The Renovation Contract was a lump sum contract. Even if the owners of the Middle Units did not agree to relocate the Pipes in their units, the whole contract sum was still payable to the Contractor. The consequence of signing a lump sum contract and possible breach of the Buildings Ordinance raised by the defendant had not been clarified to the owners when the defendant wrote the 2nd Letter, I accept that the defendant had proved reasonable grounds to suspect that the owners had been deceived to the true effect of the Renovation Contract.
The 3rd Words
316. The imputations complained by the plaintiffs in respect of the 3rd Words were:-
(1) the plaintiffs failed to consider and ensure the PipeWork conducted at the Estate was legal and in compliance with the DMC. There is therefore a real risk that the owners will suffer loss in the future (the “7th Imputation”); and
(2) the 2nd plaintiffs was arrogant and it was no longer appropriate for him to continue to hold the office of the chairman of Management Committee of the 1st plaintiff (the “8th Imputation”).
317. The 3rd Letter was dated 2 October 2008. The defendant also relied on the facts and matters in support of his plea of justification in respect of the 1st Letter to support his plea of justification to the 3rd Letter.
The 7th Imputation
318. I am of the view that the 7th Imputation also belongs to level 2 of the Chase case.
319. Matters relevant for consideration in respect of the 7th Imputation had been dealt with above. On the findings set out in the earlier part of this judgment, I find that the defendant had proved the facts and matters giving rise to the reasonable suspicion that the plaintiffs failed to ensure that the PipeWork was legal. I find that the defendant failed to prove the facts and matters to support a reasonable suspicion that the plaintiff failed to ensure that the PipeWork complied with the DMC. However, even without breaching the DMC, breach of the Building (Planning) Regulations would already cause a real risk of loss in future.
320. By virtue of section 26 of the Defamation Ordinance, I accept that the defendant had established his plea of justification in respect of the 7th Imputation.
The 8th Imputation
321. In the 3rd Letter the defendant stated that: 〝其後在24/9晚工程答問會 [the September Briefing]，出席各業主已看到主席 [the 2nd plaintiff] 的言行，對其他業主的傲慢態度，已不適合作為曉翠苑法團 [the 1st plaintiff]代表。〞 I am of the view that the degree of certainty of the 8th Imputation belongs to level 1 of the Chase case.
322. The defendant pleaded the following matters in para 11.7 of the defence:-
“11.7.1 when the Defendant and certain other owners voiced their discontent with the relocation works, the 2nd Plaintiff showed an arrogant attitude towards them and in particular, had asked the Defendant to shut up;
11.7.2 the 2nd Plaintiff stated that he would not change the time for the general meeting which was to take place on 6 October 2008;
11.7.3 the 2nd Plaintiff stated to one of the attending owner, Mr K C Au, that in convening the general meeting of the Estate on 6 October 2008, it is not necessary to consult him;
11.7.4 the 2nd Plaintiff further stated that it was an operation in a black box; and that the owners can sue him for this if they would like to;
11.7.5 the 2nd Plaintiff also threatened the owners attending the said meeting on 24 September 2008 not to use any excuse to mess around.”
323. Miss Kei submitted that the defendant commented that the 2nd plaintiff was arrogant at the September Briefing without disclosing the defendant’s prior and offensive language to the 2nd plaintiff and without giving a full picture of what had actually happened in that meeting.
324. The proceedings of the September Briefing had been recorded by one of the attending owners. Transcripts were produced and the relevant parts of the recorded conversation were played at the trial.
325. From the recorded conversation, it could be seen that the 2nd plaintiff had explained a third option for the Middle Units, ie replacing the Pipes at their existing locations. He told the meeting that if the owners wanted to withhold works for the Middle Units, that could be done and there would be refund to the 1st plaintiff’s account. The 2nd plaintiff said that the unit price for each unit was stated in the Renovation Contract. He stated that he would consider other options put forward by the owners (pp 646-647). The following conversations then took place (pp 647-650):-
(P: the 2nd plaintiff, D: the defendant, O: other owners)
D: 嗱，阿主席，唔好意思，我打斷你嘅講法，你呢而家喺度誤導緊 …… (item 986）
P: 收聲。 (item 987)
D: 你收聲呀，你喺度誤導緊人呀，你知唔知呀？ (988)
P: 你係咩嘢 －－代表咩嘢嘅？ (item 989)
D: 我代表咩嘢，我代表我自己。 (item 990)
P: 你代表你自己，…… (item 991)
D: 因為你喺度亂嗡。 (item 992)
P: ……我講緊嘢。 (item 993)
D: 而家人哋個陳先生喺度呀，你話嗰啲錢係唔做呀，…… (item 994)
P: 你－－你 ……
D: ……會畀番你呀，…… (item 996)
O: ……〔聽不清〕
P: 我講緊 ……
D: 你識唔識合約嘅，你呀？ (item 999)
P: 你要求我講嘢吖嘛。 (item 1000)
D: Lump sum contract呀，唔做都要畀錢呀，傻佬。 (item 1001)
P: 你要求我講嘢吖嘛。吓？ (item 1002)
D: 亂咁點人哋。 (item 1003)
P: 邊個話？ (item 1004)
D: 而家阿陳生－－你問一問阿陳生〔嘈雜聲〕喺度，你話佢 …… (item 1005)
P: 吓？ (item 1006)
D: ……收唔收錢嗰個合約？你唔識，唔好講。你問阿陳生，睇下佢收唔收錢？你唔好亂－－亂點人呀，我話你聽。 (item 1007)
P: 你收聲呀。 (item 1008)
D: 嘩，留番畀法團啲錢， …… (item 1009)
P: 你係邊一屆呀？ (item 1010)
D: 我代表我自己呀，傻佬。我一鈫呀， …… (item 1011)
P: …… 〔 聽不清〕 呀。
D: 我一鈫主席，可唔可以講嘢先？ (item 1013)
O: 唔係嘅，每個戶籍……
P: 個個都唔知掟。 (item 1015)
D: 你都白痴嘅，梗係個個都可以講咩嘢喇。 (item 1016)
326. It could be seen that the defendant had challenged the 2nd plaintiff of misleading the owners in telling the owners that part of the contract sum under the Renovation Contract could be refunded if the owners of the Middle Units decided not to relocate the Pipes in their units (see item 986). Although the defendant was challenging the 2nd plaintiff, he did not use any offensive language as submitted by Miss Kei when the 2nd plaintiff told the defendant to “shut up” at item 987. The 2nd plaintiff even queries the locus of the defendant (see item 989). Only after that the defendant started to use offensive language such as 〝你喺度亂嗡〞 (item 992)，〝傻佬〞 (item 1001) and 〝白痴〞 (item 1016).
327. When another owner requested the 2nd plaintiff to change the time for the October Meeting, the 2nd plaintiff first said that the meeting time could not be changed after the notice of meeting had been issued (see item 1063 at p 658). He also referred to the BMO (see item 1073 at p 659). When the owners persisted with the request, the 2nd plaintiff said 〝冇得改〞 (see item 1101 at p 663). He further told the owners that they might boycott the October Meeting (see item 1103 at p 663). No offensive language was used by any of the owners at the meeting before the 2nd plaintiff told the owners that they might boycott the October Meeting.
328. Further discussion on the time of the October Meeting continued as follows (pp 665- 673):-
(P: the 2nd plaintiff, D: the defendant, O: other owners)
O1: …… 知道我哋呢個時間唔係咁方便，點解你唔會去希望可 以為咗多啲人去參與到，而做一個更改呢？
P: 嗱，……
O1: 你－－我哋唔係 ……
P: …… 好簡單講句說話，好簡單講句說話，〔嘈雜聲〕 如果你係要求呢個立案法團為工程而開嘅立－－嗰個工程嗰個呢個居民大會呢，冇問題。
O2: 之前又唔開。
O3: 係囉，之前唔開。
O2: 係囉。
O3: 之前你唔講，你而家先講。
O2: 係囉。
P: 做咩嘢啫，匿埋講，出嚟講吖。
O3: 好，出嚟講，我出嚟講。
P: 好。
O4: 好。
O1: 好。好。好。〔掌聲〕
P: 吓？邊個出嚟之前唔講呀？咩嘢之前唔講？我開大會使乜諮詢你啫，你有人要求我開大會吖嘛？ (item 1129)
O4: 嘩。
O5: 嘩。〔嘈雜聲〕
O4: 嘩。嘩，好嘢，好嘢。
P: 我哋根據呢個問題，吓，呢位先生要求我開業主大 會， ……
O6: 炒呢條友都得喇。 (item 1134)
P: …… 我接受佢開業主大會。
D: 因為你黑箱作業呀，吓。
P: 時間、地點任我哋做。〔嘈雜聲〕你代表六百六十戶，係咪？ (item 1137)
D: 代咩嘢表呀？你代表哂呀你？
P: 你唔係代表六百六十戶吖嘛？ (item 1139)
O7: 噓。
P: 咁我梗係會做呢個動作喇，吓。
O3: 嗱，而家得番十日，仲有幾多日呀？ …… 〔聽不清〕？〔嘈 雜聲〕
O2: 係囉，誒黑箱作業。
P: 嗄，係呀，係黑箱嘛，如果你咁樣認為就。〔現場眾人噓聲〕係呀，告我喇。 (item 1144)
O8: 錄晒嘞，呢啲。
O4: 錄晒呀。全部錄晒。
P: 去告我喇。 (item 1147)
O4: 錄晒呀，唉，當我哋死嘅，真係。
O2: 好呀，大家 …… 〔聽不清〕
O5: 噓。噓。
O6: 咪就當我哋黑箱作業呀。
O4: 係呀。
O6: 唉。〔嘈雜聲〕
O2: 個個都係業主喇。
O6: 係呀。〔嘈雜聲〕黑箱作業。頭先都聽到。
P: 咁勞氣做咩嘢呀？
O2: …… 〔聽不清〕吖嘛。
O9: 係你自己都勞氣喇。
P: 你要我出聲嘅，我唔想出聲嘅，今晚。
O5: 噓。
D: 誒講嘢，做咩嘢？
O2: 講嘢。時間唔畀人改。
P: 係呀。 (item 1166)
O2: 喂，…… 〔聽不清〕。〔嘈雜聲〕喂，你亦都唔使做嘢，喺度，你，揾飯食。我－－我覺得呢，……
P: 嗱，我話你聽吖，……
O2: …… 呢個－－呢個 ……
P: …… 唔好爭拗呢啲嘢嘞。
O2: …… 〔聽不清〕呢就係 ……
P: 今晚呢個會呢就係負責呢 ……
O2: …… 所有嘢都係為咗自己嘅利益。
P: …… 就係陳先生，向你哋解釋工程嘅結構點樣去做。
O2: …… 〔聽不聽〕業主嘅利益。
P: …… 吓。唔係話你哋而家係借啲意 …… (item 1177)
O2: 啱唔啱？
P: ……喺度去搞嘢嘅。 (item 1179)
O8: 我哋冇搞嘢呀。
O6: 冇搞嘢。
O8: 哎呀。〔嘈雜聲〕
P: 我冇搞嘢，我不嬲我都唔想出聲，……
329. It could be seen that when the defendant challenged the 2nd plaintiff’s decision, the 2nd plaintiff would challenge the defendant not representing all owners of the Estate. In other words, the 2nd plaintiff held out that no one was entitled to challenge his decision unless that person represented all the owners. When the other owners commented this as “operation in a black box” (黑箱作業), the 2nd plaintiff then invited the owners to sue him. I do not see that the defendant or the other owners had used offensive languages before the 2nd plaintiff made the aforesaid remarks.
330. The 2nd plaintiff told the defendant to shut up when the defendant challenged him of misleading the owners. When he was asked to change the time for the October Meeting to allow more owners to attend, the 2nd plaintiff challenged the requesting owners’ locus to represent all owners of the Estate. He even invited the owners to boycott the October Meeting or to sue him. The 2nd plaintiff also accused the owners of using the occasion to cause trouble (借啲意去搞嘢). I had listened to the audio recording of the September Briefing. I do not agree with Miss Kei that the 2nd plaintiff had been provoked by offensive languages of the other owners to make such remarks. I find that it was these remarks of the 2nd plaintiff which provoked other owners using offensive languages to respond. I find that the defendant had proved the primary facts and matters substantiating the 8th Imputation substantially true.
Ruling on the defence of justification
331. I find that the defendant had proved the primary facts and matters substantiating all the Imputations complained by the plaintiff substantially true and I uphold the defendant’s defence of justification. I shall also dismiss the plaintiffs’ claims on this ground.
Defence of fair comment
332. The parties have no disputes on the ingredients of the defence of fair comment which have been set out by the Court of Final Appeal in Cheng & Anor v Tse Wai Chun [2000] 3 HKCFAR 339 at 347B-348A. The comment must:-
(a) be on a matter of public interest and public interest is not to be confined within narrow limits;
(b) be recognisable as comment, as distinct from an imputation of fact;
(c) be based on facts which were true or protected by privilege;
(d) explicitly or implicitly indicate, at least in general terms, what were the facts on which the comment was being made to enable the reader or hearer to judge for himself how far the comment was well founded; and
(e) be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views.
333. In Cohen v Daily Telegraph Ltd [1968] 1 WLR 916 Lord Denning MR observed at 919 G-H that:-
“In order to make good a plea of fair comment, it must be a comment on facts existing at the time. No man can comment on facts which may happen in the future.” (Original emphasis)
334. The burden of establishing that a comment falls within the aforesaid limits, and hence within the scope of the defence, lies upon the defendant who wishes to rely upon this defence. But Li CJ had pointed out in of the Cheng case (supra)at 345 that:-
“In a society which greatly values the freedom of speech and safeguards it by a constitutional guarantee, it is right that the courts, when considering and developing the common law, should not adopt a narrow approach to the defence of fair comment. See Eastern Express Publisher Ltd & Another v Mo Man Ching & Another (1999) 2 HKCFAR 264 at 278. The courts should adopt a generous approach so that the right of fair comment on matters of public interest is maintained in its full vigour.”
335. The claimant may defeat the defence of fair comment by proving that when the defendant made his comment the defendant was actuated by malice. In the context of the defence of fair comment, malice is subjective and covers the case of the defendant who does not genuinely hold the view he expressed. “In other words, when making the defamatory comment the defendant acted dishonestly. He put forward as his view something which, in truth, was not his view. It was a pretence. The law does not protect such statements.” (per Lord Nicholls NPJ in the Cheng case (supra) at 348)
336. Lord Denning MR had said in The Slimcase (Supra)at 170B-D that:-
“The important thing is to determine whether or not the writer was actuated by malice. If he was an honest man expressing his genuine opinion on a subject of public interest, then no matter that his words conveyed derogatory imputations: no matter that his opinion was wrong or exaggerated or prejudiced; and no matter that it was badly expressed so that other people read all sorts of innuendoes into it; nevertheless, he has a good defence of fair comment. His honesty is the cardinal test. He must honestly express his real view. So long as he does this, he has nothing to fear, even though other people may read more into it, …”
337. In this case, it was not the plaintiffs’ pleaded case that the defendant was actuated by malice.
338. Miss Lau submitted that the defendant had discharged the burden in establishing the defence of fair comment. The defendant also relied on section 27 of the Defamation Ordinance.
339. Miss Kei submitted that the matters raised by the defendant in the Letters, subject of the plaintiffs’ complaints, were all contrary to the defendant’s personal knowledge at that time which defeated his defence of fair comment.
340. Lord Phillips stated in Joseph and ors v Spiller and anor [2011] 1 AC 852 at 886F-G that:-
“The concept [of fair comment] was a simple one. The writer had to be expressing his honest opinion on a matter of public interest. He had to get his facts right. The area of inquiry was relatively limited. What were the facts on which the writer had made his comment? Were they matters of public interest? Were they accurate?” (Original emphasis)
341. The defendant pleaded that the various sentences contained in the 1st Words, the 2nd Words and the 3rd Words complained of were fair comments on matters of public interest, namely, the operation of the 1st plaintiff and the conduct of the 2nd plaintiff by reason that the 1st plaintiff had been the body corporate of the owners of about 660 units of residential flats of the Estate.
342. Miss Kei did not dispute that the comments made by the defendant in the Letters were on matters of public interest. I accept that the defendant had satisfied the ingredient of public interest for the defence of fair comment. This defence is available to the defendant if other ingredients for this defence are also made out. I shall now consider each of the sentences which the defendant pleaded as fair comments.
The 1st Letter
343. The defendant pleaded that the following sentences of the 1st Letter were fair comments:-
(1) 〝法團揀選10月6號下午6時在本苑舉行業主大會的時間不適當，相信大部份上班一族很難於6時後下班兼能趕到登記及開會。法團及管理委員會是否故意令大家未克出席呢？〞 (the “1st Sentence”)
(2) 〝在處理上述遷移污水渠工程中，我們不相信現任管理委員會的能力，尤其是在與工程公司簽約前，未有設立徵詢期。〞 (the “2nd Sentence”)
(3) 〝我們曾到管理處翻閱工程合約內容，發覺部份合約內容不合理及令人費解，〞 (the “3rd Sentence”)
344. The 1st Sentence was comment on the appropriateness of the timing of the October Meeting and the intention of the plaintiffs in setting the time of the October Meeting at 6 pm. The facts supporting the comment were set out in the 1st Letter, ie owners who had to attend work would have difficulties to attend meeting at 6 pm in time and the defendant’s request to reschedule the meeting time had been refused by the 2nd plaintiff. I have held that the defendant had proved these facts substantially true. I agree that in the circumstances of this case, this was a comment which could be made by an honest person. I do not accept Miss Kei’s contention that this matter was contrary to the defendant’s personal knowledge at that time. I find that the defendant had established that the 1st Sentence was a fair comment.
345. The 2nd Sentence was comment on the ability of the Management Committee chaired by the 2nd plaintiff to supervise the Pipe Work. The facts supporting this comment had been set out in the 1st Letter. I have held that the defendant had proved that these facts were substantially true in substantiating his plea of justification. I find that this comment was one which could be made by an honest person in the circumstances of this case and was a fair comment.
346. The 3rd Sentence was comment on the terms of the Renovation Contract. The defendant had not stated which part of the Renovation Contract was unreasonable and puzzling. The defendant only stated and proved the fact that he had encountered difficulties in inspecting the Renovation Contract. This could not be the factual basis for his comment that some terms of the Renovation Contract were unreasonable and puzzling. Without informing the readers of the 1st Letter which terms of the Renovation Contract were unreasonable or puzzling, the reader would not be in a position to assess whether the comment made by the defendant was one which an honest person could have been made.
347. I find that the defendant failed to establish that the 3rd Sentence qualified as a fair comment.
348. Section 27 of the Defamation Ordinance does not assist the defendant as even with regard to such of the facts alleged or referred to in the 1st Words as are proved, one still could not form any view as to whether the 3rd Sentence was a fair comment.
The 2nd Letter
349. The defendant pleaded that the following sentences of the 2nd Letter were fair comments:-
(1) 〝如果您是大或細單位的業戶而您的單位已經開始了搬渠工程，您有沒有不滿意的地方？有沒有有冤無路訴的感覺？〞 (the “4th Sentence”)
(2) 〝只有對今次工程認識更多才不會被賣豬仔。〞 (the “5th Sentence”)
(3) 〝我們是否有信心讓現時的管理委員會繼續管理這八百萬的工程？〞 (the “6th Sentence”)
(4) 〝我們現在的工程是不尋常的，因為法團如果要做公眾維修，九成九應該在公眾地方，但現在全部單位都要入屋內工作；〞 (the “7th Sentence”)
350. The 4th Sentence was a comment on the plaintiffs not addressing the dissatisfaction of the owners of the Large and Small Units and not providing channel for these owners to voice their grievances. The 2nd Letter referred to the September Briefing. However, no records of the September Briefing had been produced and the defendant had not set out the facts based on which he made this comment. Without knowing the supporting facts, the readers of the 2nd Letter would not be able to form any view as to whether the 4th Sentence was a comment which could have been made by an honest person. I find that the defendant failed to establish the defence of fair comment in respect of the 4th Sentence.
351. The 5th Sentence criticized the plaintiffs for not providing sufficient information on the Pipe Work to the owners of the Large and Small Units. In the 2nd Letter, the defendant referred to the facts that the plaintiffs had not explained the operation of the compensation fund stipulated in the Renovation Contract and thePipe Work might contravene statutory provisions. I have found that the defendant had proved that these facts were substantially true. Although I had found that the defendant failed to prove that the Pipe Work would breach the DMC which was also alleged in the 2nd Letter, this would not defeat the defendant’s plea of fair comment by virtue of section 27 of the Defamation Ordinance. The learned editors of Gatley (supra) when commenting on section 6 of the English Defamation Act 1952 (which is identical to section 27 of the Defamation Ordinance) stated in para 12.18 that:-
“The section does not require all the facts upon which the comment is made are proven substantially true, although that will often be its effect. Rather, the defendant must prove the truth enough of the supporting facts for the comment to be said to be honest (in the sense of being an opinion that an honest person could hold on those facts). The court is only concerned with the comment in the statement complained of: if that is fair in relation to such of the facts on which it is based as are proved, the defence of honest comment is made out.”
352. I accept that based on the facts proved by the defendant, the 5th Sentence was a comment which could have been made by an honest person.
353. The 6th Sentence was criticizing the ability of the Management Committee to supervise the Renovation Work. The 2nd Letter had set out facts substantiating this comment including the fact that all the proposed methods for relocation of Pipes in the Middle Units had problems; uncertainty as to how damages caused by the Renovation Work to the units would be compensated; possibility of breaching statutory provisions; and possible impacts of the Renovation Work on the existing insurance of the Estate. The defendant had proved that these uncertainties had not been resolved before the plaintiffs signed the Renovation Contract with the Contractor and allowed the Renovation Work to commence. I agree that the 6th Sentence was also a comment which could have been made by an honest person in the circumstances of this case.
354. The 7thSentence said that the Renovation Work was unusual as access to the units was required to carry out the work. There was no dispute that it was necessary for the workers to have access to the units in order to carry out the Renovation Work. However, with the knowledge that the drainage pipes of the Estate were located inside the units of the Estate, I do not agree that an honest person could have commented the Renovation Work as “unusual” because of such access being required. I do not accept that the 7th Sentence was a fair comment.
The 3rd Letter
355. The defendant pleaded that the following sentences of the 3rd Letter were fair comments:-
(1) 〝其後在24/9晚工程答問會，出席各業主已看到主席的言行，對其他業主的傲慢態度，已不適合作為曉翠苑法團代表。〞 (the “8th Sentence”)
(2) 〝你認為這是合理價？超貴價錢？〞 (the “9th Sentence”)
(3) 〝良好管理，有賴業主積極參與，起監察作用，才可減少流弊事件。〞 (the 10th Sentence”)
356. The 8th Sentence was on the attitude of the 2nd plaintiff in the September Briefing and the suitability for him to continue to be the Chairman of the Management Committee. The defendant relied on the attitude of the 2nd plaintiff towards other owners at the SeptemberBriefing to substantiate his said comment. I had discussed above the attitude demonstrated by the 2nd plaintiff toward the other owners at the SeptemberBriefing when I considered the defendant’s defence of justification. Based on the facts proved, I am of the view that the 8th Sentence was one which an honest person could have been made. Although particulars of the 2nd plaintiff’s attitude at the September Briefing relied on had not been set out in the 3rd Letter, the 8th Sentence had indicated in general terms the facts on which it was based (ie the arrogant attitude of the 2nd plaintiff towards other owners at the September Briefing) so that the reader could understand what the comment was about.
357. The 9th Sentence was comment on the replacement of aluminum windows of the Estate in 2007. The defendant relied on the fact that the 1st plaintiff spent about $1,500,000 to replace the aluminum windows at the common area of the Estate. The defendant said that the cost of replacing each aluminum window was about $11,000. Based on this figure, he made his comment in the 9th Sentence. The evidence adduced at the trial showed that the sum of $1,500,000 paid by the 1st plaintiff not only covered replacement of aluminum windows at common area of the Estate but also included other works. The facts relied on by the defendant to make this comment were proved to be not true. The defendant blamed the plaintiff for not disclosing the necessary information in the meeting minutes. As Lord Denning pointed out in London Artists Ltd v Littler [1969] 2 QB 375 at 391 that:-
“In order to be fair, the commentator must get his basic facts right. The basic facts are those which go to the pitch and substance of the matter: see Cunningham-Howie v Dimbleby [1951] 1 KB 360, 364. They are the facts on which the comments are based or from which the inferences are drawn – as distinct from the comments or inferences themselves.”
358. The defence of fair comment is not available to the defendant in respect of the 9th Sentence when it was based on facts which were not true. In the words of Lord Oaksey: “A comment based on facts untruly stated cannot be fair.” (Kemsley v Foot [1952] AC 345 at 361)
359. The 10th Sentence was on supervision of the Estate’s management by the owners’ participation. In the 3rd Letter, the defendant again raised the possibilities of breaches of statutory provisions and the DMC by the Pipe Work. He also raised the 2nd plaintiff’s attitude at the SeptemberBriefing and the costs paid by the 1st plaintiff for the aluminum window replacement work in 2007 to substantiate his comment that more participation of the owners was required to supervise the management of the Estate to minimize common improper practices. I have found that the defendant had failed to prove the facts to substantiate his comment on the price for replacement of the aluminum windows being unreasonable. However, the defendant had proved the other facts in support of this comment. I am of the view that having regard to the proven facts, the 10th Sentence was a comment which an honest person could have been made. The defendant had established that the 10th Sentence was a fair comment.
Ruling on the defence of fair comment
360. I find that the defendant had established the defence of fair comment in respect of the sentences pleaded in the defence as fair comment except the 4th, 7th and 9th Sentences.
361. The 4th and 7th Sentences were contained in the 2nd Letter. The stings established by the plaintiffs in respect of the 2nd Letter were the imputations that the plaintiffs failed to consider whether the Pipe Work was in compliance with the law and/or the DMC; the plaintiffs were reckless and/or incompetent and/or were acting contrary to the owners’ interest in dealing with the Pipe Work; and the owners were being deceived by the plaintiffs. Having regard to the other facts alleged or referred to in the 2nd Letters as were proved by the defendant, I am of the view that the opinion expressed in the aforesaid imputations established in respect of the 2nd Letter was nevertheless a fair comment. The defendant’s plea of fair comment in respect of the 2nd Words is established.
362. The defendant had failed to establish that the 9th Sentence was a fair comment. The 9th Sentence was contained in the 3rd Letter. The stings established by the plaintiffs in respect of the 3rd Letter were the imputations that the plaintiffs failed to ensure that the Pipe Work were legal and in compliance with the DMC; there was a real risk that the owners would suffer loss in the future; and the 2nd plaintiff was arrogant and was no longer appropriate to be the chairman of the Management Committee. The plaintiffs raised no specific complaint on the comment made by the defendant in respect of the replacement of aluminum windows in 2007. Having regard to the other facts alleged or referred to in the 3rd Letters as were proved by the defendant, I am of the view that the opinion expressed in the aforesaid imputations established in respect of the 3rd Letter remained fair comment. The defendant’s plea of fair comment in respect of the 3rd Words is not defeated by his failure to establish the 9th Sentence as a fair comment.
363. If I have not dismissed the plaintiffs’ claims on other grounds, I shall dismiss the plaintiffs’ claim on this ground of fair comment.
Conclusion
364. In the premise, I dismiss the plaintiffs’ claims against the defendant. Given my above ruling, it will not be necessary for me to deal with the issue of quantum.
365. I make a costs order nisithat the plaintiffs shall pay the defendant’s costs of this action (including costs previously reserved), with certificate for Counsel, to be taxed if not agreed.
366. The Transfer Order provided that the costs of this action up to and including the date of the Transfer Order should be taxed under the High Court scale instead of the District Court scale in any event. Accordingly, I order that the costs payable by the plaintiffs to the defendant up to and including 20 January 2012 shall be taxed at the High Court scale and thereafter at the District Court scale.
367. Unless application is received within 14 days from the date of this judgment to vary this costs order nisi, it shall become absolute after this 14 day period.
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( R Lai )
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Deputy District Judge |
Miss Carmen Kei, instructed by Jesse HY Kwok & Co, for the 1st and 2nd plaintiffs
Miss Lorinda Lau, instructed by Bennett Chan & Co, for the defendant
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