KOO MING KOWN v. YOUNG KWOK HUNG CLEMENT AND OTHERS

HCA 1619/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1619 OF 2014

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D E C I S I O N

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1.  This is the Plaintiff’s (Koo) application for leave to commence committal proceedings against the 5^th Defendant (Chan). The intended contempt proceedings are based on 2 averments (Averments) made in Chan’s pleading. Essentially, they referred to Chan having a doctoral degree awarded by the European University of Ireland (EUI) in 2007. The Averments had twice been verified by Chan with his statements of truth.

Background

2.  Koo is a well-known and successful Hong Kong businessman.  He is also an alumni of the Pui Ching Schools in Hong Kong (Schools).  Since the 1950s, the 3^rd Defendant, a charitable institution, has been entrusted with the administration of the Schools.  In 2002, the 3^rd Defendant established a separate educational institution known as the Piu Ching Academy (Academy). 

3.  The other 11 defendants in this action are the people who are involved in the management of the 3^rd Defendant and/or the Academy.  Some of them also have certain role in the running of some of the Schools.  Chan is a director of the 3^rd Defendant and a member of the Board of Governors of the Academy.  He is also a supervisor of 2 of the Schools. 

4.  The causes of action in this action are quite difficulty to understand.  The Re-amended Statement of Claim (RASOC) is a 41-page document.  I regret to say that it is not a proper pleading.  There was no attempt by the author(s) to adhere to the rules of pleadings.  The document reads like a long and repetitive witness statement.  It even contains submissions[1] which are not appropriate in witness statements, let alone a pleading. 

5.  It appears that the complaints contained in the RASOC flow from a pamphlet (Pamphlet) which was issued for the purpose of a fund raising exercise of the Academy.  It is alleged by Koo that the Pamphlet contained many false statements, and he was falsely described as a member of the Academy’s Advisory Committee, thus conveying the false message that he had endorsed the Pamphlet and the fund raising exercise.  Based on the falsities in the Pamphlet, Koo brought this action against the defendants alleging passing-off, defamation and malicious falsehood. 

6.  Amongst the alleged falsities is the statement that Chan was a “Dr.”.  It is important to put that “statement” in proper context.  The “statement” can only be found in the names under the Board of Governors of the Academy where Chan was described as “Dr. Hopkins C.M. CHAN”. It was in small print at the margin on a page which set out the background of the Academy.  The “statement” appeared twice in the Pamphlet, which itself was a small document, because it was in both English and Chinese. 

7.  It is important to note from the contents of the RASOC[2] that, quite clearly, Koo has conducted a personal campaign against Chan on his academic record.  To advance his challenge on that matter, a press conference was held by Koo; letters were sent by him to the listed companies of which Chan was an independent non-executive director; flyers were distributed by Koo to the public; and private investigators were engaged by him in London to investigate the authenticity of Chan’s doctoral degree. 

8.  Some of these matters were raised by Chan in support of his application to strike out the pleas in the RASOC about his doctoral degree.  That application will be heard at a 2-day hearing starting on 31 July 2017. 

Issues

9.  In Numeric City Ltd v Lau Chi Wing [2016] 4 HKLRD 812, §13, the Court of Appeal had endorsed the commentaries in Hong Kong Civil Procedure 2016, rubric 41A/9/1, on the important factors which the court will consider in a leave application for contempt proceedings. 

10.  This court has a number of concerns in respect of the merits of this application.  It is only necessary to mention 3 main ones, each of which is sufficient to dispose of this application, namely :

(a)   Whether a strong case has been demonstrated that the Averments are false, and that Chan had no honest belief in the truth of the same at the time they were made;

(b)   Whether the Averments are significant having regard to the nature of this action;

(c)   Whether the contempt proceedings are in the public interest.

Falsity of the Averments

11.  Koo’s case is premised on the evidence that: (a) EUI was a “bogus university” because it was not a recognised or accredited university, and that it had no degree awarding authority under the laws of Ireland; (b) the joint degree program under which Chan obtained his doctoral degree was “bogus” because the 3 education institutions involved in that program were not recognised or accredited by the relevant authorities; and (c) Chan’s doctoral thesis was produced with plagiarism.

12.  I am not persuaded that there is a strong case that the Averments are false.  Importantly, the Averments made no claim on the quality of Chan’s doctoral degree.  There is no suggestion that EUI did not exist.  Further, it appears that the degree was obtained by Chan with certain effort on his part.  Hence the thesis he produced.  This is to be contrasted with a case where one simply purchased a paper title from an institute which only existed in name (see the dicta in Younghushand v Lufitg [1949] 2 KB 354 at 360 and 369, which are heavily relied upon by Mr Wong SC, appearing with Ms Li for Koo).  

13.  As to the alleged plagiarism, if it is true, again it impacts upon the quality of the doctoral degree.  I am unable to see how it turns the Averments into false statements.  Normally, one may expect the awarding university to annul the degree if it was tainted by plagiarism.  But before such annulment, it is difficult to see why it is false for the awardee to state that he has a degree. 

14.  On the mental element in question, Koo relies on “irresistible inference”.  Firstly, it is said that there were adverse publicity concerning EUI.  Of the 4 articles produced, only 1 of them was published in Hong Kong, and 1 of them was published after the doctoral degree was awarded.  It appears from the evidence that Chan’s degree was gained via “distance learning”.   

15.  Secondly, it is said that Chan has been in the education sector since 1990s.  This is a two-edge sword in that it is unlikely for him to have knowingly chosen a well-known “bogus” university. 

16.  Thirdly, I have already dealt with the plagiarism point. 

17.  Finally, on the refusal of Chan to respond to Koo’s challenges over his academic record, it must be considered in light of this action and the manner in which those challenges were made.  He might have considered it undignified to descend into a public spat over the matter.  I am unable to see why Chan’s silence in these circumstances can give rise to an adverse inference against him. 

18.  In the premises, whilst one may take the view that Chan has no worthy claim to the title in question, I am not satisfied that there is a strong case that the Averments are false or that Chan had no honest belief in the truth of the Averments, or knew that they were false, at the time they were made.   

Significance of the Averments

19.  I have already alluded to the context under which Chan’s title of “Dr.” was stated in the Pamphlet.  It is quite surprising for that “statement” to have generated 3 causes of action.  Doing the best I can in trying to understand the RASOC, Koo’s complaint is that the Pamphlet gave rise to the false message that the false statements therein contained, including the claim that Chan had a doctoral degree, were endorsed by him. Consequently, the passing-off, defamation and malicious falsehood. 

20.  Bearing in mind the strike out application which is on foot, I shall only state my reasons here in brief terms.  I would be surprised if many of the recipients of the Pamphlet had read and remembered the reference to Chan’s title, let alone believing that Koo had endorsed such title. With respect, the complaint over Chan’s title has been magnified out of all proportion.  I see little substance in the causes of action, and I am certainly not satisfied that the Averments are significant in this action.

Public Interest

21.  On this issue, the following dicta by Moore-Bick LJ in KJM Superbikes v Hinton [2009] 1 WLR 2406, §17, which were cited with approval by the Court of Appeal in Numeric City Ltd, supra, are apposite :

“… the wider public interest would not be served if courts were to exercise the discretion too freely in favour of allowing [contempt] proceedings of this kind to be pursued by private persons. There is an obvious need to guard carefully against the risk of allowing vindictive litigants to use such proceedings to harass persons against whom they have a grievance, whether justified or not, …”

22.  I regret to say that Koo’s own case suggests that he may be a vindictive litigant.  In my view, there is an obvious risk that the contempt proceedings will be used by him to harass Chan prior to the conclusion of this action.  It cannot be allowed.  I have been referred to the case of GB Minerals Holdings Ltd v Short [2015] EWHC 1387 (TCC).  It involved rather different facts and should be distinguished.  In particular, the Averments here are not significant.

23.  For these reasons, this application is declined.

24.  It should be made clear that the proposed amendment to the Contempt Statement as well as Koo’s 7^th affirmation have been considered in the determination of this application.  For proper housekeeping, I make an order in terms of para 1 of the ex parte Summons filed on 25 May 2017.  The filing of the Amended Statement be dispensed with, and I make no order as to costs of that Summons.