LEUNG CHI CHING CANDY v. YEUNG HON SING

DCCJ 5079/2015

[2022] HKDC 1036

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5079 OF 2015

-----------------------------------

-----------------------------------

--------------------------------------------

REASONS FOR DECISION

-------------------------------------------

1.  By a writ of summons dated 10 November 2015, the plaintiff (“P”) commenced these proceedings against the defendant (“D”) for libel. The original trial took place before Deputy District Judge Vincent Lung (“the Judge”) on 11, 14-18, 21 and 31 May 2018. On 15 November 2019, the Judge handed down his judgment and ruled in favour of P (“the DC Judgment”).[1] D took the matter to the Court of Appeal. By a judgment dated 26 November 2021 (“the CA Judgment”)[2], the Court of Appeal allowed the appeal and remitted the case for retrial before a different judge of the District Court. However, the remission is limited to the issue of malice in the context of the defence of qualified privilege only (“the Limited Remitter Order”).

2.  For the purpose of seeking directions concerning the retrial, P and D have respectively issued the following summonses:-

(1)  P’s summons dated 22 April 2022 for directions (“P’s Summons”);

(2)  D’s summons dated 17 June 2022 for leave to file and serve a rejoinder (“the Rejoinder”) in the form of the draft annexed to the summons (“the Rejoinder Summons”), alternatively for leave to file and serve a statement of further and better particulars (“the FBP Statement”) as per the contents of the Rejoinder;

(3)  D’s summons dated 17 June 2022 for leave to file and serve the 2^nd supplemental witness statement of D (“the WS”) in the form of the draft annexed to the summons (“the WS Summons”); and

(4)  D’s summons dated 17 June 2022 for an order requiring P to make specific discovery of the documents specified in the summons (“the SD Summons”).

3.  The substantive hearing of the aforesaid summonses took place before me on 29 September 2022. The parties were represented by counsel. P was represented by Mr. Andrew Mak (together with Mr. Abel Lam), and D was represented by Mr. Ken To. At the end of the hearing, I dismissed the Rejoinder Summons, the WS Summons and the SD Summons with costs. I also gave directions for the further conduct of these proceedings. These are my reasons.

A.  PROCEDURAL HISTORY

4.  The background facts of this case have been set out in the DC Judgment and in the CA Judgment in detail, and I would not repeat the same in this decision. For ease of reference, unless otherwise indicated, the abbreviations used in the CA Judgment are adopted herein.

5.  As recorded in the CA Judgment, D only pursued 4 substantive grounds in the appeal. Among these 4 grounds, the Court of Appeal is of the view that there are merits in the following grounds[3]: -

(1)  the Judge was wrong in applying an objective or a predominantly objective test in finding malice which defeated the defence of qualified privilege, and thereby excluded most, if not all, of the factors affecting the subjective views of D; and

(2)  the Judge failed to take into account the evidence of Ma Chun Fat in deciding the underlying events and D’s subjective views.

6.  The Court of Appeal allowed D’s appeal and made the Limited Remitter Order. The Court of Appeal expressly said the following in the CA Judgment: -

“79. For all the above reasons, we are satisfied that it is appropriate to exercise our discretion to order a re-trial of this case before a different judge of the District Court, limited to the issue of malice in the context of qualified privilege. We would allow the appeal on this ground.

89. We therefore allow this appeal and remit the case for re-trial before a different judge of the District Court, restricted to the issue of malice in the context of qualified privilege.” (Emphasis added)

7.  On 22 April 2022, P took out P’s Summons, seeking directions concerning the retrial. The summons was fixed to be heard before me on 27 May 2022.

8.  On 10 May 2022, I issued directions to the parties, asking the parties to provide proposed directions concerning the retrial to the court.

9.  Since then, there has been discussion between the parties concerning what directions should be given for the retrial. No agreement can be reached between the parties.

10.  In the hearing on 27 May 2022, Mr. Ken To for D indicated that D intended to take out some interlocutory applications. I directed that D should take out all interlocutory applications within 21 days. I also ordered that no further interlocutory application should be taken out without leave of the court.

11.  On 17 June 2022, D took out the 3 summonses mentioned in [2(2)] to [2(4)].

(1)  By the Rejoinder Summons, D intends to introduce the Rejoinder, which consists of 16 pages and 60 paragraphs.

(2)  By the WS, D intends to introduce the WS into the evidence. There are 168 paragraphs in the WS, and the WS runs to 43 pages.

(3)  By the SD Summons, D seeks specific discovery of the following documents (“the Documents”):-

(a)  all notice(s) and/or written document(s) regarding the recruitment of the volunteers among owners of the Estate issued by or otherwise involving the By Elected 1^st MC, for the purpose of any proposed renovation work(s) of the Estate;

(b)  all lists and/or written records and/or documents on the subject matter of the names and/or particulars of volunteers, owners and/or persons engaged by the By Elected 1^st MC for the purpose of any proposed renovation work(s) of the Estate and/or selection of consultant for the said proposed renovation work(s) for the period between 21 August 2011 and 22 July 2012;

(c)  all scoring sheets, and/or written documents and/or records on the subject matter of scoring of bidders for the position of consultant of any proposed renovation work(s) of the Estate for the period between 17 February 2012 and 31 March 2012;

(d)  all reports, written documents and/or records and/or part(s) thereof issued by W&K on the subject matter of the proposed renovation work(s) of the Estate, including but not limited to on the subject matter of price estimate(s) of the said proposed renovation work(s), other than [two documents mentioned in the summons];

(e)  all letter(s), written communication(s) and/or document(s) issued by P to the 2^nd MC on the subject matter of the minutes of the annual general meeting of the IO on 22 July 2012 and/or their correction and/or rectification;

(f)  all letter(s), written communication(s) and/or document(s) issued by the By Elected 1^st MC and/or P to the auditor of the IO on the subject matter of auditing of financial statements, in the period between 21 August 2011 and 8 February 2012; and

(g)  all notice(s) and/or written document(s) issued by the 2^nd MC and/or D on the subject matter of the inauguration dinner of the 2^nd MC on 31 August 2012.

12.  P proposes that the evidence in the original trial be also the evidence in the retrial, and both D and Ma Chun Fat be further cross-examined in the retrial. P opposes introducing the Rejoinder and the WS in the retrial. According to P’s estimation, the length of the retrial would be 4 days.

13.  D is seeking leave to introduce the Rejoinder and the WS in the retrial. D suggests that P be further cross-examined in the retrial. D also proposes that there be further evidence-in-chief from D and Ma Chun Fat in the retrial, and after their further evidence-in-chief, D and Ma Chun Fat be further cross-examined. D estimates that the length of the retrial should be 6 days.

14.  The parties have filed affirmations in relation to the summonses before this court. In P’s 1^st Affirmation dated 7 July 2022, P confirmed that she does not have possession, power or custody of the documents set out in the SD Summons, except those exhibited in the same affirmation. In view of this affirmation, D is prepared not to seek an order for specific discovery in terms of the SD Summons. However, D is seeking costs of the SD Summons.

B.  DISCUSSION

15.  Having considered the evidence in relation to the summonses and the parties’ respective submissions, I dismissed the 3 summonses taken out by D with costs. As to the directions for the retrial, the directions proposed by each party have been accepted to a limited extent.

16.  In the call-over hearing on 15 July 2022, I have directed the parties to make submissions on the following issues:-

(1)  In accordance with the CA Judgment, whether, and if yes, to what extent it is permissible to introduce any new pleading and/or new evidence in the retrial; and

(2)  If the parties have already confirmed that all the necessary interlocutory applications had been taken out before the original trial, whether any party should be permitted to take out any interlocutory application before the retrial.

In my view, these are important questions in considering whether D’s application for leave to introduce the Rejoinder and the WS should be allowed.

B1.  Retrial in accordance with the Limited Remitter Order

17.  There can be no doubt that the retrial must be conducted in accordance with the Limited Remitter Order. As to the construction of an order remitting the case to the lower court for a retrial on specific issue(s), Mr. Andrew Mak for P has helpfully drawn my attention to the principles laid down by Lord Sumption in Sans Souci Ltd v VRL Services Ltd[4]. The material facts of that case are as follows:-

(1)  A hotel manager claimed damages against the hotel proprietor under 3 heads, with gross management fee being the major head. The hotel proprietor argued that the correct measure of damages was the manager’s loss of profit, which should be calculated by deducting from the gross fees the “unrecoverable expenses”. The main issue was whether some expenses were really unrecoverable.

(2)  After the arbitrators issued the award, the hotel proprietor applied to the court to set aside the award and remit the case to the arbitrators for reconsideration. One of the grounds of the application was that the arbitrators had not dealt with the “unrecoverable expenses”. At the first instance, the court dismissed the hotel proprietor’s application. On appeal, the appellate court agreed with the court below except on the ground based on “unrecoverable expenses”. The appellate court took the view that the arbitrators had failed to make appropriate findings about the expenses, or to take them into account in assessing damages, or to explain why they had not done so. A retrial was ordered before the arbitrators to determine the issue of damages only.

(3)  When the matter went back to the arbitrators, the hotel proprietor sought to raise 2 points on damages in addition to the question of “unrecoverable expenses” by leading fresh evidence on these points. The arbitral tribunal refused the application and ruled that the award had been remitted to them for the limited purpose of dealing with “unrecoverable expenses” to be deducted from future management fees. The tribunal was therefore not entitled to reassess the value of the management fees. The hotel proprietor appealed arguing that the appellate court had remitted the question of damages generally, and that in principle all points relevant to damages were open before the arbitrators. The argument was rejected by the courts at all levels, including the Privy Council.

18.  In that case, Lord Sumption said: -

“11. It is apparent from the reasons given by the Court of Appeal in December 2008 that, in ordering a remission, they were concerned only with the way in which the arbitrators had dealt with, or failed to deal with, the “unrecoverable expenses”. Harrison P., delivering the leading judgment, identified the error or oversight which justified the remission at paragraph 69:-

‘Whether or not expenses incurred by the Respondent were in fact ‘unrecoverable’, as claimed by the appellant in its Points of Defence, or reimbursable as contended by the Respondents, should have been determined by the arbitrators. The arbitrators were required to demonstrate in their award that they accepted that the expenses were ‘unrecoverable’, or alternatively payable by the Appellant. At its lowest, the arbitrators should have demonstrated that they considered the issue of ‘unrecoverable expenses’ as contended for by the Appellant.’

No other matter is identified by the Court of Appeal as warranting a remission. Indeed, no other criticism was made of the way in which the arbitrators had dealt with damages.

12. The Proprietor’s response is simple, perhaps too simple. It is that the scope of the remission is determined by the Court of Appeal’s order. The order allowed “the appeal against the award of damages”, and remitted the award to the arbitrators to determine “the issue of damages”. In the absence of any words of limitation, it is said that this unambiguously means the entire issue as to damages as formulated in the arbitrators’ Terms of Reference. In the absence of any ambiguity in the language of the order, it should not be construed by reference to the limited reasons given for making it.

13. In the opinion of the Board, this approach to the construction of a judicial order is mistaken. It is of course correct that the scope of a remission depends on the construction of the order to remit. But implicit in the Proprietor’s argument is the suggestion that the process of construing the order is to be carried out in two discrete stages, the first of which is concerned only with the meaning of the words, and the second with the resolution of any “ambiguities” which may emerge from the first. The Court’s reasons, so it is said, are relevant only at the second stage, and then only if an “ambiguity” has been found. The Board is unable to accept these propositions, because the construction of a judicial order, like that of any other legal instrument, is a single coherent process. It depends on what the language of the order would convey, in the circumstances in which the Court made it, so far as these circumstances were before the Court and patent to the parties. The reasons for making the order which are given by the Court in its judgment are an overt and authoritative statement of the circumstances which it regarded as relevant. They are therefore always admissible to construe the order. In particular, the interpretation of an order may be critically affected by knowing what the Court considered to be the issue which its order was supposed to resolve.” (Emphasis added).

19.  In Sans Souci, the Privy Council held that since the remitting court only concerned only with the way in which the arbitrators had dealt with, or failed to deal with one specific issue in relation to the expenses, i.e. the “unrecoverable expenses”, the remitted issue was necessarily very narrow and it would not be not open to a party to lead fresh evidence at the hearing of the remitted issue, despite there being no express direction against adducing fresh evidence.

20.  Mr. To submits that as a matter of case management, the trial judge in a retrial on a remitted issue has the discretion to admit new evidence or allow amendment of pleadings. Mr. To refers me to First Laser Ltd v Fujian Enterprises (Holdings) Co Ltd[5], in which To J said:-

“29. In my view, in hearing a remitted issue, a trial judge has discretion to admit further or new evidence, to permit amendment of pleadings and even to re-open a party’s case. In a case where the appellate court has not expressly directed that no new evidence may be adduced at the hearing of a remitted issue, it is entirely a matter of case management for the judge hearing the remitted issue to decide, particularly in view of the long lapse of time of almost eight years and the new Judicial Interpretation, how best to proceed. The most important consideration is to secure the just resolution of dispute in accordance with the substantive rights of the parties. These two considerations point strongly in favour of admitting the new evidence relating to the Judicial Interpretation. I also echo the observation of Chu JA that a judge of first instance has greater flexibility in admitting new evidence than has the Court of Appeal under the rule in Ladd v Marshall.”

21.  However, as submitted by Mr. Mak, what has been said by To J in First Laser in 2016 (“the 2016 Decision”) must be read subject to a caveat, i.e. Sans Souci was not drawn to the court’s attention in the hearing leading to the 2016 Decision. To J only eventually considered Sans Souci in [2020] HKCFI 495 (“the 2020 Decision”). In the 2020 Decision, To J said at [90] that Sans Souci is a “very strong authority binding on this court”.

22.  On appeal from the 2020 Decision, Sans Souci was again cited with approval by the Court of Appeal in [2021] HKCA 864 at [16]. In the same paragraph, the Court of Appeal held that “the precise scope of the remitter should be determined by reference to the judgment of the Court of Final Appeal and the pleadings then before the court.” (Emphasis added). I agree with Mr. Mak that the adjective “then” is important, for it requires the retrial judge to look at what had been placed in front of and raised with the appellate court, so as to ascertain what was intended and understood by the appellate court to be remitted for retrial.

23.  As said in the above, San Souci has been approved and applied by the Court of Appeal in [2021] HKCA 864. Accordingly, San Souci is an authority binding upon the District Court.

24.  In order to correctly understand what is the issue remitted by the Court of Appeal, one must go back to the CA Judgment to see the basis upon which D’s appeal is allowed.

(1)  In the appeal, the argument put forward by D is that the Judge “conflated the subjective test of malice to defeat honest comment”… and “upon this objective basis, the Judge then found that the defendant had knowledge that the comments he made were without any factual or evidential foundation. In other words, the finding of the falsity of the underlying events provided the basis for the finding of the defendant’s knowledge of their falsity.”[6]

(2)  In the appeal, in relation to the failure to adopt a subjective test of malice, D submits that there are 2 forms of subjective factors: - “first, factors which have not been considered as they are regarded as irrelevant for the objective analysis of the underlying events. They should have been considered as they are relevant for the subjective analysis of the defendant’s view. Second, factors which have been considered and rejected in the objective fact finding process of the underlying events. They should have been re-evaluated from a different perspective for a subjective analysis of the defendant’s view.”[7]

(3)  D’s case in the appeal is that the Judge’s approach short-circuited the subjective test of malice, and excluded subjective factors in considering the dominant purpose. D has tried to seek an order remitting the entire case for retrial.[8]

(4)  Having considered the matter, the Court of Appeal in their judgment said: -

“72. …… the difficulty we have is [the Judge’s] finding of the defendant’s knowledge, intention and state of mind at the time the communications were made in holding that the defendant did not make the communications for a proper purpose.

73. It is not entirely clear whether the Judge had indeed conflated the subjective test of malice in the context of honest comment with the objective limit of that defence whether an honest person could have made the comment. At the very least, we think there is ambiguity… whether the Judge had applied a predominantly objective test in arriving at the view that the defendant knew the comments were without factual or evidential foundation and was dishonest.”

(5)  The Court of Appeal is of the view that the Judge erred in his analysis of malice by failing to apply a subjective test as required by the law.

(6)  Although the Court of Appeal has decided to allow D’s appeal, the Court of Appeal at the same time “limited” and “restricted” the retrial to the issue of malice in the context of qualified privilege.[9]

(7)  Reading the CA Judgment as a whole, the Court of Appeal in fact is saying that the evidence in this case should be re-evaluated by correctly applying the subjective test in determining whether the defence of qualified privilege has been defeated by malice.

25.  The reason for allowing D’s appeal is that the Judge erred in his approach in considering malice in the context of qualified privilege. What should be done in the retrial is to consider this issue by re-evaluating the evidence (including the evidence of Ma Chun Fat) by correctly applying the legal principles, no more and no less.

26.  Mr. To submits that in relation to malice in the context of qualified privilege, the Judge has failed to make some necessary factual findings. These factual issues would need to be explored in the retrial. Mr. To refers me to the following part of the CA Judgment:-

“74. The defendant’s admissions of the various matters put to him in cross-examination do not in themselves constitute evidence of his knowledge and state of mind at the time he made the communications, although his admissions may be evidence on which an inference could be drawn as to his knowledge at the time. His acceptance under cross-examination that his complaints were without evidential basis and just his speculation does not in itself constitute evidence that the defendant knew at the time the statements he made were untrue or had no factual basis, although again this is evidence on which an inference could be drawn. Whether such an inference of knowledge could properly be drawn must rest on a consideration of all the relevant circumstances surrounding the making of the communications, and should include the matters listed by [senior counsel for D in the appeal] as they could (not must) have some bearing in shaping the defendant’s belief, intention and thinking at the time.

……

76. Hence, we do not agree with the Judge that the evidence of Ma Chun Fat is irrelevant for this exercise. Ma’s evidence might (not must) provide context for the defendant’s state of mind at the time and might thereby show that the defendant had acted in good faith and did believe what he published to be true, even though he might have acted carelessly, impulsively or irrationally at the time. Similarly, the defendant’s acceptance that the plaintiff did not use violence or abusive or foul language against him and other members of the MC is not a valid reason for excluding from consideration the evidence of the disturbances in the Estate and the plaintiff’s lobbying for signatures in a campaign to remove the 2^nd MC.

77. We recognize that the Judge had given other reasons (at [121], [126] - [129], [155], [165] and [180]) in arriving at the conclusion that the defendant did not make the communications for a proper purpose. But we are unable to say that those reasons would be sufficient in themselves to support the Judge’s conclusion or that the evidence he excluded would have made no difference to the conclusion. Where the communication includes defamatory material going beyond what was necessary, that material should not be treated as in itself falling outside the protection of the privilege. The objective relevance of the material is insufficient, it remains necessary to consider the defendant’s state of mind and whether an inference can properly be drawn in all the circumstances that he did not believe what he said or wrote was true or was indifferent to its truth or falsity but seized the opportunity to drag in irrelevant defamatory matter for an improper motive. We are not able to determine on the evidence the question of fact whether the defendant knew at the time what he published was false or that he was reckless as to whether it was true or false.” (Italics in CA Judgment)

27.  The matters listed out by senior counsel for D in the appeal have been set out in [52] of the CA Judgment:-

“52. Mr Chan listed a number of matters which the Judge should have considered in finding the defendant’s subjective belief in holding that there was malice to defeat qualified privilege: -

(1)  suspected price-rigging behind the proposed renovation and “mutual back-scratching” among the parties perceived to be acting in collusion;

(2)  the suggestion made by Leung But Dai (who was then a consultant to the 1^st MC and later became a member of the By Elected 1^st MC) at the dinner gathering aforesaid that the owners could be bribed to vote for the proposed renovation;

(3)  upon the voting down of the proposed renovation, the plaintiff’s camp launched a campaign to remove the 2^nd MC, to disturb the administration of the IO and to disrupt the day-to-day living of the residents of the Estate, by verbal and physical violence;

(4)  in one incident that shocked the residents of the Estate, over a hundred people shouted and hit the glass window of the place where a meeting of the 2^nd MC was held. Twenty policemen attended to control the scene and there was indication of the possible involvement of triad members;

(5)  the perception of some of the owners including the defendant that the plaintiff was involved in these events;

(6)  the general support for the defendant and/or the 2^nd MC in the affairs of the Estate: only 17.10% of the votes was in favour of the proposed renovation; the plaintiff’s team suffered a landslide defeat in the election of the 2^nd MC; the endorsement by the 2^nd MC of the six defamatory articles published by the defendant; only 12.83% of the votes was in favour of removing the 2^nd MC; and the defendant was elected the chairman of the 1^st to 3^rd MCs;

(7)  other context of the publication of the six defamatory articles: events that triggered each of the articles; the accumulating effect of the events; the full contents of the publications in particular the non-defamatory parts and those stating the purposes of the publications; the defendant’s revision of some of the words in the 6^th Article as he did not see the need to be so “critical” (albeit this was contrary to the Judge’s holding that the revisions reinforce rather than reduce the defamatory effect).”

28.  There can be no doubt that the Court of Appeal has taken the view that there are deficiencies in the DC Judgment, and the Judge erred in his analysis concerning malice in the context of qualified privilege. Hence the Court of Appeal allowed the appeal and ordered a retrial, but only on the issue of malice in the context of qualified privilege. However, in my view, the deficiencies pointed out by the Court of Appeal can and should be rectified by re-evaluating the evidence in accordance with the correct legal principles in the retrial.

29.  One must bear in mind that the appeal is not allowed because of any erroneous refusal of any pleading or witness statement proposed by D. The appeal is allowed because the Judge erred in his analysis concerning malice in the context of qualified privilege. To right the wrong, what should be done in the retrial is to analyse the existing evidence in accordance with the law set out in the CA Judgment. D cannot take the retrial as an opportunity allowing him to introduce new pleading(s) and/or new witness statement(s) to strengthen his case, so that he can have a second bite at the cherry.

30.  In my judgment, the Limited Remitter Order, properly understood in the context of the whole CA Judgment, does not allow the introduction of any new pleading or any new witness statement in the retrial. This would be sufficient for the disposal of the Rejoinder Summons and the WS Summons.

31.  If I were wrong in the aforesaid analysis, for the reasons set out below, I would exercise my discretion against D and disallow the Rejoinder Summons and the WS Summons.

B2.  Ladd v Marshall

32.  D says that the facts pleaded in the Rejoinder and the contents of the WS (collectively “the new matters”) are all relevant to the issue of malice in the context of qualified privilege. That being the case, D should be allowed to introduce all these in the retrial.

33.  Mr. Mak has rightly pointed out that D’s attempt is trying to leapfrog the well-established Ladd v Marshall test.[10] It is trite that new evidence would usually only be admitted in an appeal if such evidence:-

(1)  could not have been obtained at the trial or at the hearing with reasonable diligence;

(2)  would or might, if believed, have a very important effect on the mind of the court; and

(3)  is of a sort which inherently is not improbable.

34.  In the appeal, D has not put forward the new matters before the Court of Appeal for their consideration. Plainly, the new matters should be placed before the Court of Appeal.

(1)  If the new matters have been placed before the Court of Appeal, the Court of Appeal would have an opportunity to make a ruling on whether these matters are admissible for the purpose of the appeal and the retrial, and would have applied the Ladd v Marshall test in considering the evidence.

(2)  If the Court of Appeal rules that the new matters cannot be admissible, then these materials would not form part of the retrial and this court would not have been put in the difficult position of guessing what would have been the result had the Court of Appeal been confronted with the application of introducing the new matters and in particular the scope of the retrial.

(3)  The Court of Appeal may have taken a different view as to the scope of the retrial if the new matters are held to be admissible.

35.  I agree with Mr Mak that by attempting to introduce the new matters in the retrial, D is trying to sidestep the stringent requirements of Ladd v Marshall and through the backdoor broaden the scope of the retrial by raising for the first time factual disputes which had not been raised before the Judge. This cannot be acceptable.

B3.  Change of stance without satisfactory explanation

36.  In their respective listing questionnaires filed on 2 August 2017 and 7 August 2017 respectively, both P and D confirmed that the pleadings are in order and they do not intend to take out any interlocutory application before trial. Upon this basis, on 17 August 2017, this court set down the case for trial.

37.  D’s present stance (i.e. seeking leave to put in the Rejoinder and the WS) is different from the one set out by him in his listing questionnaire filed on 7 August 2017 (“D’s Listing Questionnaire”). D has not offered any satisfactory explanation as to this change of stance in any of his affirmation filed in support of his applications now before this court.

38.  Mr. To submits that: -

(1)  Although D had indicated before the original trial that D did not intend to take out any interlocutory application, it could not be reasonably contemplated by D, before the handing down of the CA Judgment allowing D’s appeal, that there would be a retrial on the issue of malice in the context of qualified privilege, and that the Judge, in erroneously applying a predominantly objective test, failed to make a fair amount of factual findings and did not deal with relevant parts of the live evidence in the DC Judgment. The applications by the Rejoinder Summons and the WS Summons are genuine efforts by D to enable better case management in the retrial by facilitating the retrial and examination of witnesses, to stay focused on the issues, and to identify the relevant live evidence by witnesses in the original trial and relevant parts of the DC Judgment which did not accord with D’s subjective intentions by the WS.

(2)  D’s Listing Questionnaire was made for the purpose of case management, indicating D’s intent at the time of that questionnaire. It does not estop or restrain the parties from updating their intention should the circumstances become necessary.

(3)  It is proper and conducive to the determination of the real issues in the dispute for D to file the Rejoinder and the WS at this stage of the proceedings, namely after the CA Judgment identified the scope of issues in the retrial, and before the dates of the retrial are fixed. In Mr. To’s submissions, the WS would serve the following purposes:-

(a)  To summarize the live evidence of P and D in the original trial which would be relevant for the purpose of determining malice in the context of qualified privilege in the retrial; and

(b)  To explain D’s subjective intent in the light of the events occurred in the original trial and the objective facts as found by the Judge after the original trial.

39.  With respect, I am unable to accept these submissions.

(1)  Whether the defence of qualified privilege would be defeated by malice is an issue defined by the existing pleadings, and the parties were well aware of this issue before the original trial. Naturally, the parties would and should have done all the preparation relating to the issues raised in the pleadings (including the filing of all the necessary witness statements) before the original trial.

(2)  If there is any genuine need to put in the Rejoinder and/or any further witness statement, that need would have already arisen before the original trial. It cannot be said that the need only arose after the CA Judgment.

(3)  The Listing Questionnaire is an important document. D cannot easily depart from the position set out by him in that questionnaire. In the absence of any satisfactory explanation from D, the court is entitled to exercise the discretion against D and disallow him to adopt a stance which is contradictory to the one recorded in the questionnaire.

(4)  According to Mr. To, the purpose of the Rejoinder and the WS is to facilitate the retrial and examination of witnesses, to stay focused on the issues, to identify the relevant live evidence by witnesses in the original trial and relevant parts of the DC Judgment which did not accord with D’s subjective intentions. With respect, in my view, all these should be achieved by providing helpful submissions to the court, not by filing of any pleading or witness statement. To state the obvious, with respect, summarizing the evidence given in the original trial should be done by written submissions or notes prepared by counsel, not by a witness statement.

(5)  The subjective intent in question is D’s subjective intent at the times of the publication of the six articles. Obviously, the original trial is an event taken place long after the publication of the six articles. What happened in the original trial, and the factual findings made by the Judge after the original trial, would not have the effect of affecting the subjective intent of D at the times of the publication of the six articles. Those matters would not be relevant to D’s subjective intent at the material times at all.

40.  By limiting and restricting the scope of the retrial to malice in the context of qualified privilege, it is plain that the Court of Appeal do intend the retrial to take place as soon as practicable. If D is allowed to file the Rejoinder and the WS, that may lead to further discovery. P may also need time to prepare further witness statement(s) in response to the matters raised by D in his new pleading and in his new witness statement. All these would cause delay in these proceedings. While there is no satisfactory explanation from D concerning his change of stance as set out in the above, and the aims of having the Rejoinder and the WS in the retrial in fact should be achieved by providing helpful submissions to the court, I would not allow to have such delay in these proceedings.

B4.  Disallowing the Rejoinder Summons and the WS Summons

41.  For the reasons set out in [17] to [30] above, I am of the view that in accordance with the CA Judgment, no party is allowed to introduce any new pleading or any new witness statement in the retrial. If I were wrong on this, for the reasons set out in [32] to [40] above, I would exercise my discretion against D and would not allow D to introduce the Rejoinder and the WS in the retrial. Since the contents of the FBP Statement are same as the contents of the Rejoinder, for the same reasons, the FBP Statement is also disallowed.

42.  Accordingly, the Rejoinder Summons and the WS Summons should be dismissed with costs.

B5.  Costs of the SD Summons

43.  According to D, the Documents were mentioned by P for the first time while she was giving evidence in the original trial. Prior to that, D did not know the existence of the Documents. D says that the Documents are relevant to the underlying events of the six articles mentioned in the CA Judgment.

44.  Mr. To submits that since P only disclosed the existence of these documents in her oral evidence given in the original trial, D was not in a position to seek specific discovery before the original trial. It is also proper for D to take out the SD Summons following D’s successful appeal to the CA, so that the issues on retrial have been ascertained, and before trial dates have been fixed for the retrial. Although the discovery order is now not necessary in view of the confirmation given by P in his 1^st Affirmation (see [14] in the above), costs of the SD Summons should still be borne by P.

45.  With respect, I am unable to agree. Before taking out the SD Summons, D has not asked P whether P is having possession, power or custody of the Documents. Had that enquiry been made, the costs incurred as a result of the SD Summons would have been avoided and saved.

46.  Further, in any event, I am of the view that there is no merit in the application made by the SD Summons.

(1)  It is trite that discovery would only be ordered if the discovery is necessary either for disposing fairly of the cause or matter or for saving costs.[11] By saying that the Documents are relevant to the underlying events of the six articles, D is saying that the purpose of having discovery of the Document is for disposing fairly of the cause or matter in these proceedings. In his oral submissions, Mr. To also says that the discovery of the Documents is also for the purpose of saving costs. Mr. To submits that the purpose of saving costs is just the flip side of the coin.

(2)  Mr. To accepts that D could seek specific discovery of the Documents at the original trial. After P revealing the existence of the Documents in her oral evidence, D (represented by counsel) could certainly ask P to produce the Documents in the original trial. If necessary, D might seek an order from the Judge compelling P to do so.

(3)  D could also ask P to produce the Documents after the handing down of the DC Judgment but before the hearing of the appeal. If the discovery is really necessary for disposing fairly the dispute between P and D, there is no reason why D did not request P to produce the Documents after the handing down of the DC Judgment but before the hearing of the appeal. If necessary, D might seek an order from the Court of Appeal requiring P to make discovery.

(4)  All the aforesaid have not been done. In the circumstances, D’s argument that the discovery sought is for disposing fairly of the cause or matter in these proceedings is unconvincing.

(5)  Further, whether the Documents would have any relevance for the fair disposal of these proceedings has not been raised in the appeal, and the Court of Appeal has no opportunity to make a ruling on this issue. For the reasons set out in [32] to [35] above, I would not allow the Documents to be evidence in the retrial in any event.

(6)  Mr. To is saying that in the application made by the SD Summons, “saving costs” is just the other side of the coin (i.e. “disposing fairly of the cause or matter”). For the reasons above, the coin simply does not exist.

(7)  Further, I agree with Mr. Mak that the discovery sought by D would have the effect of increasing not saving costs.

47.  In my judgment, the application made by the SD Summons is unmeritorious and is bound to fail. I would make an order dismissing that summons with costs to P.

B6.  Directions for the retrial

48.  P and D are in agreement that the evidence given by the witnesses in the original trial should also be the evidence in the retrial. I agree.

49.  P and D are also in agreement that both D and Ma Chun Fat should give further evidence under cross-examination in the retrial. Since the issue in the retrial is the subjective intent of D in the context of qualified privilege, I agree that hearing further evidence from D would be necessary. The Court of Appeal has pointed out that Ma Chun Fat’s evidence would also be relevant to this issue. Hence, it would also be necessary to hear evidence from Ma Chun Fat in the retrial.

50.  Both D and Ma Chun Fat have confirmed their respective witness statements in the original trial. The contents of those witness statements would be their evidence-in-chief in the original trial, and would still be their evidence-in-chief in the retrial. As a result of my ruling, there would not be any new witness statement from D in the retrial. Regarding Ma Chun Fat, D has not proposed to add any new witness statement from Ma Chun Fat in the retrial. In the circumstances, there should be no further evidence-in-chief from either D or Ma Chun Fat in the retrial.

51.  The Judge has made findings as to what are the objective facts in the DC Judgment. Those findings have not been disturbed by the Court of Appeal. The issue in the retrial is D’s subjective intent in the context of qualified privilege. In ascertaining D’s subjective intent, I am of the view that the relationship between P and D at the material times may be part of the relevant background which the court has to take into account. Thus, it would be beneficial if the court can hear evidence from P in the retrial. I would allow cross-examination of P in the retrial. However, I have to make it clear that in the retrial, D is not entitled to challenge the factual findings made by the Judge in the DC Judgment which have not been disturbed by the Court of Appeal.

52.  The documents in these proceedings are voluminous. The transcript of the original trial spans over 4 bundles.

53.  Taking into account all the aforesaid, and taking into account the time estimates provided to me by Mr. Mak and Mr. To respectively, I would allocate 8 days to the retrial.

54.  I would make the following directions concerning the retrial:-

(1)  The retrial be taken place before a bilingual judge on dates to be fixed in consultation with counsel’s diaries, with 8 days reserved.

(2)  The evidence given by the witnesses in the original trial be part of the evidence in the retrial.

(3)  P, D and Ma Chun Fat be further cross-examined in the retrial.

(4)  There be a pre-trial review (with 2 hours reserved) not less than 8 weeks before the commencement of the retrial. The date of the pre-trial review be fixed in consultation with counsel’s diaries.

(5)  Not less than 14 days before the pre-trial review, P shall lodge the trial bundles with the court and serve the same on D.

(6)  The trial bundles used in the retrial shall be prepared in accordance with PD5.6 and shall contain the following:-

(a)  documents in the trial bundles used in the original trial;

(b)  necessary updates since the original trial; and

(c)  transcript of the original trial.

C.  DISPOSITION

55.  For the reasons set out in the above, I dismissed the Rejoinder Summons, the WS Summons and the SD Summons. Costs of these summonses (including costs reserved) should follow the event and be to P forthwith with a certificate for one counsel, and those costs be summarily assessed.

56.  I have also given the directions as set out in [54] above. Costs of P’s Summons (including costs reserved) be costs in the cause, with certificate for one counsel.

57.  The 4 summonses are dealt with in one go. In my view, 90% of time has been spent on the 3 summonses taken out by D. With this in mind, I have summarily assessed the costs of the 3 summonses payable by D to P forthwith at HK$120,000.

58.  I thank all counsel for the assistance rendered to the court.