HCA1948/2005
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 1948 OF 2005
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BETWEEN
WONG WING HO (黄永浩)
Plaintiff
and
CHONG LAI WAH (張麗華)
1st Defendant
LEUNG KAR FAI (梁嘉輝)
2nd Defendant
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Before : Hon Chu J in Chambers
Date of Hearing : 21 May 2007
Date of Judgment : 12 June 2007
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JUDGMENT
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Introduction
1. This is the plaintiff’s appeal against the Order of the Master made on 8 February 2007, striking out the Statement of Claim and dismissing the action with costs.
2. The plaintiff’s claim is for an injunction and damages in libel. The dispute arose out of the management of an industrial building called Century Industrial Centre(“the Building”), which is situated at 33-35 Au Pui Wan Street, Fotan, New Territories.
3. The plaintiff is a director of a company called Ka Hang Decoration Company Limited (“Ka Hang”). Ka Hang is the registered owner of Workshop I on the Ground Floor (“Workshop I”) and also a container parking space on the 1st Floor (“Space C/T ”) of the Building.
4. The 1st and 2nd defendants were respectively the chairlady and member of the 8th Management Committee (2004-2006) of the Incorporated Owners (“IO”) of the Building. The 1st defendant became the chairlady in 2005. Both defendants are currently members of the 9th Management Committee (2006-2008).
The action
5. On 6 October 2005, the plaintiff issued the writ herein. The subject matters of the plaintiff’s complaint are two letters written in Chinese. The first letter is dated 11 July 2005 (“the 1st Letter”) and the second letter is dated 15 July 2005 (“the 2nd Letter”). The letters were issued in the name of the 8th Management Committee. Apart from being sent to the plaintiff, both letters had been copied to the other owners of the Building.
6. On 9 November 2005, the defendants filed their Defence. The plaintiff filed his Reply on 21 November 2005.
7. On 20 October 2006, the defendants applied by summons to strike out the Statement of Claim and to have the action dismissed under both Order 18 rule 19(1), Rules of the High Court and the Court’s inherent jurisdiction. The summons was supported by affidavit/ affirmation of the 1st and 2nd defendants. The plaintiff has not filed any evidence.
8. On 8 February 2007, Master Lung heard the summons and granted the application with costs to the defendants. On 21 February 2007, the plaintiff filed the Notice of Appeal to appeal against the decision.
The parties’ case on pleadings
9. The gist of the plaintiff’s case as appeared by the Statement of Claim is that:
(1) The defendants and each of them published and/or caused to be published and/or participated in the publication of the 1st and 2nd Letters.
(2) In so doing, the 1st and 2nd defendants acted without the proper authorization and/or approval of the IO.
(3) The 1st and 2nd Letters contained words, which in their ordinary and natural meanings, were defamatory of and concerning the plaintiff.
(4) The defendants published the defamatory words maliciously knowing them to be untrue and/or being reckless as to their truth or falsity.
10. By way of their Defence, the defendants raise the following points:
(1) The defendants did not publish or cause to be published 1st and 2nd Letters. The two letters were issued by the IO and pursuant to the resolution of the 8th Management Committee.
(2) The English translations pleaded in the Statement of Claim are inaccurate. Further, the words complained of by the plaintiff did not bear or were not understood to bear the meanings pleaded by the plaintiff. The meanings of the words are as pleaded by the defendants.
(3) The 1st and 2nd Letters are true in substance and in fact.
(4) Further or alternatively, the words complained of by the plaintiff constitute fair comment on matters of interests to the owners of the Building.
(5) Further or alternatively, the 1st and 2nd Letters were published on occasions of qualified privilege, being pursuant to a resolution of the management committee and for the purposes of reporting to the owners of the Building and of enforcing the Deed of Mutual Covenants and the Building Management Ordinance.
11. Before proceeding to consider the striking out application, it is necessary to mention that the plaintiff had included in the appeal bundle a draft Amended Statement of Claim. Mr Chu who appeared for the plaintiff on this appeal clarified that the plaintiff was not relying on the proposed amendments for the purpose of this appeal, and the Court needed not have regard to it. It was explained that if the appeal were decided in his favour, the plaintiff would in due course seek leave to amend.
Relevant legal principles
12. The principles governing a striking out application are well settled: Hong Kong Civil Procedure 2007 Vol.1 paras.18/19/3-18/19/13. There is also no disagreement between counsel on the relevant principles. It is therefore sufficient to summarize the more salient ones. In general, the court should only exercise its summary power to strike out in plain and obvious case. There should be no trial on affidavits. Disputed facts are to be taken in favour of the party sought to be struck out. The mere fact that the claim is weak and not likely to succeed is no ground for striking it out. Where the application is made on the basis that the claim discloses no reasonable cause of action, no evidence should be referred to: Order 18 rule 19(2) of Rules of the High Court.
The striking out application
13. In mounting the striking out application, the defendants rely on all three limbs of Order 18 rule 19(1) of Rules of the high Court. The thrust of the defendants’ application is twofold. First, the plaintiff had sued the wrong parties in that the 1st and 2nd Letters were not issued or published by the defendants. Second, the claim was bad in that the 1st and 2nd Letters and/or the words complained of are not defamatory.
The 1st and 2nd Letters
14. The 1st and 2nd Letters, which form the subject matter of the plaintiff’s claim, are in these terms:
The 1st Letter
「更正
致：前法團委員黃永浩 先生
世紀中心地鋪I業主
非法霸佔車位
繼閣下欠世紀中心業主近三年水費合共$16,115, 另有一項為非法霸佔車位一事與閣下有關，請與本法團澄清立場，免增誤會。
按7月5日法團第十三次會議，FW2638車主蘇先生在會議聲稱，向閣下租用車位包括『黃格位』超過十年，如不與閣下解決『黃格位』事宜，便會惹來更大麻煩。
法團暫列這聲明為『善意忠告』，但這忠告是震撼的，各委員及嘉賓聽得清楚和印象深刻的。蘇先生聲稱這『黃格位』是與『前法團』條件交換，閣下有書面證據，蘇先生自稱也有一份證據，楊宗鎏祕書即場確認知道當時內情，故此法團請管理公司複製一套錄音帶以作後用。
由於閣下婉拒法團邀請出席7/5日會議，現書面請閣下澄清以下要點：
(1) 閣下是否C/T 4車位及車位旁黃格承租受益人，超過十年？
(2) 是否有書面與法團交換？
(3) 交換條件是否曾與法團達成？
請閣下於五天內書面答覆法團為盼。
此致
世紀中心第八屆業主立案法團謹啓
日期：2005年7月11日
抄送：全體業主及法團委員
法團耗用9小時(人時算)。」
The 2nd Letter
「致：前法團委員黃永浩 先生
世紀中心地舖I座業戶
欠三年水費
按閣下7月5日來函，前後收到閣下來信共9封，都涉及同一『欠三年水費』事件，無理索求，恕本法團無暇回應。
法團正考慮法律解決。
世紀中心第八屆業主立案法團謹啓
日期：2005年7月15日
抄報：世紀全體業主
註：本法團為此事累積耗用超過100小時，癱瘓了其他法團工作
法團忠告業主：請認識你的授權代表」
15. Both the 1st and 2nd Letters are addressed to the plaintiff as the former member of the Management Committee and as the registered owner of Workshop I. They are both issued in the name of the 8th Management Committee of the IO of the Building and stamped with the chop of the IO. The headings of both letters are underlined and set out in bold print and larger font than that of the main text of the letters. The endnotes, on the other hand, are in smaller font than the main text of the letters.
16. In respect of the 1st Letter, only the heading of the letter and the 1st paragraph of it were pleaded and relied on by the plaintiff as being defamatory of him. The English translation pleaded in the Statement of Claim is as follows:
“Illegal occupation of car park space
You owe the owners of Century Industrial Centre water charges for almost 3 years totalling $16,115. In addition, you are also related to an incident involving illegal trespass and occupation of car park space .”
17. The defendants disputed the translation of the second sentence of the first paragraph (the underlined part). The defendants’ translation as pleaded in the Defence reads:
“Besides, another incident of illegal occupation of car park space relates to you. Please clarify your position with the Incorporated Owners to avoid any misunderstanding . ”
The part in italics represents the main difference between the defendants’ translation and that pleaded by the plaintiff.
18. The plaintiff has not produced certified English translations of the two letters. The plaintiff has also not pleaded to or specifically traversed the translations put forward by the defendants in paragraph 8 of the Defence. In any event, it is evident that the plaintiff’s translation of the first paragraph of the 1st Letter as pleaded in the Statement of Claim is deficient in that it had omitted the last sentence: “請與本法團澄清立場，免增誤會。” , which as pleaded in the Defence means in English: “Please clarify your position with the Incorporated Owners to avoid any misunderstanding.” As explained below, this sentence has a material bearing on the claim on the 1st Letter.
19. In the case of the 2nd Letter, the plaintiff has pleaded that the heading and the entire contents are defamatory of him. The English translations of the heading and the contents as pleaded by the plaintiff read as follows:
“3 years of water charges owed
Including your letter dated 5 July 2005, we have received a total of 9 letters from you. Since they are all related to the incident of “3 years of water charges owed” and contain unreasonable demands, the IO has no time to respond to them.
The IO is considering resolving the matter via legal channel.
Note: IO has expended more than 100 hours in dealing with this matter. Other IO matters were as a result crippled. Please learn about your authorised representative.”
20. Again, the plaintiff’s translations are incomplete in omitting the parts that appear after the second paragraph and before the Note, namely:
“世紀中心第八屆業主立案法團謹啓
日期：2005年7月15日
抄報：世紀全體業主”,
which in English mean:
From the 8th Management Committee of the Incorporated Owners of Century Industrial Centre
Dated: 15 July 20056
Copied to: All the owners of Century [Industrial Centre]”.
21. The defendants further take issue with the plaintiff’s translations of the first paragraph of and the Note to the 2nd Letter. In the Defence, it was pleaded that the translations of these parts should read:
“All [these letters] concerned the same incident of “overdue water charges for 3 years”. With the unreasonable requests, the Incorporated Owners should be excused for not having the time to reply.”
and
“Note: the Incorporated Owners has spent over 100 hours in dealing with this matter and it has prevented the Incorporated Owners from handling other works of the Incorporated Owners. The Incorporated Owners advises all the owners to get acquainted with the representative you have authorized.”
22. As in the case of the 1st Letter, the plaintiff has not specifically pleaded to the defendants’ translations of the 2nd Letter pleaded in the Defence. In my view, the defendants’ translations of the first paragraph of and the Note to the 2nd Letter are more accurate and are to be preferred. However, as explained below, as far as the 2nd Letter is concerned, the determination of the striking out application is not dependent on which version of translations is preferred or adopted by the Court.
Did the defendants publish or cause the publication of the 1st and 2nd Letters?
23. The defendants’ first ground of application is that the 1st and 2nd Letters were not issued and therefore not published by them. It is obvious from reading the two letters that they were signed off by the 8th Management Committee of the IO and bore the chop of the IO. In the case of the 1st Letter, however, the plaintiff’s complaint only relates to, and the Statement of Claim only pleads, the heading and the first paragraph of it. In proceeding on the basis of no reasonable cause of action, for which no evidence can be admitted, the defendants therefore rely on the last sentence in the first paragraph: “請與本法團澄清立場，免增誤 會。(In English: Please clarify your position with the Incorporated Owners to avoid any misunderstanding.). The defendants argue that the 1st Letter was issued by and for the purpose of the IO.
24. As for the 2nd Letter, apart from relying on the fact that it was signed off by the 8th Management Committee of the IO of Century Industrial Centre (世紀中心第八屆業主立案法團謹啓), the defendants also refer to only parts of the letter which make express references to the IO, namely, “the IO should be excused for not having the time to reply” (恕本法團無暇回應。), “The IO is considering resolving the matter via legal channel” (法團正考慮法律解決。), “The IO has spent over 100 hours in dealing with this matter and it has prevented the IO from handling other works of the IO” (本法團為此事累積耗用超過100小時，癱瘓了其他法團工作) and “The IO advises all the owners to get acquainted with the representative you have authorized” (法團忠告業主：請認識你的授權代表). The defendants argue that it is clear from these references that the 2nd Letter was issued by the IO.
25. The defendants submit that looking at the parts of the 1st and 2nd Letters as pleaded in the Statement of Claim, it is plain and obvious that the letters were not published by them and the claim against them is bound to fail.
26. In addition, the defendants also say that the 1st and 2nd Letters were duly authorized by the IO and issued pursuant to a resolution passed at the management committee’s meeting on 5 July 2005. In support, the defendants exhibited to their affidavit/ affirmation the minutes of the meeting and copies of the 1st and 2nd Letters on which members of the 8th Management Committee had signed in approval. On the basis of these exhibits, the defendants argue that the plaintiff’s averments that the 1st and 2nd Letters were issued by them and without the authority of the IO are untrue and without foundation. As such, the claim should be struck out as being scandalous and/or frivolous and an abuse of court process.
27. On behalf of the plaintiff, Mr Chu argues that even though the 1st and 2nd Letters were issued and authorized by the IO, it only means the plaintiff could have sued the IO as well; it does not mean the plaintiff cannot sue the defendants as individuals responsible for the publishing the 1st and 2nd Letters. It is said that the defendants are liable on the basis that they were the writers or authors of the letters. Alternatively, it is said that the defendants had caused the publication of the 1st and 2nd Letters by participating in the management committee meeting and the resolution that led to the issue of the letters. Mr Chu submits that the position is analogous to a conventional press claim where both the editor and the writer can be made liable for a libellous article. He says that the defendants stand in the same position as an editor and should be held liable for having permitted the issue and publication of the 1st and 2nd Letters.
28. In a libel claim, it is for the plaintiff to show that the defendant is guilty of some act or omission which under the law amounts to a publication: Gatley on Libel and Slander (10th edition) para.6.3. As to what acts may amount to publication, the question is whether the defendant has communicated the defamatory matter to others and this may be done in a number of ways: Gatley para.6.5. The issue in the present application is if the letters do contain defamatory matters, whether the plaintiff has an arguable case of the defendants doing some act or omission that caused the 1st and 2nd Letters to be communicated to others.
29. In my view, whether looking at the Statement of Claim alone or taking into account the defendants’ evidence, it is plain that the 1st and 2nd Letters were issued by the IO. The evidence further demonstrates that the two letters were properly authorized by the IO. The Statement of Claim has not particularized the basis for the averment that the defendants published and/or caused to be published and/or participated in the publication of the two letters. As far as Mr Chu’s submission that the defendants were the writers is concerned, this is not the plaintiff’s pleaded case and there is nothing before the court to support it.
30. There is also nothing to support the plaintiff’s case that the defendants published the 1st and 2nd Letters in their personal capacity. However, on the basis that the two letters were issued by the IO, it will be arguable, at least, that they had in their respective capacity as the chairlady and member of the 8th Management Committee of the IO, taken part in authorizing the issue of the 1st and 2nd Letters to the plaintiff and the other owners of the Building. It may therefore be arguable that the defendants caused or participated in the publication of the 1st and 2nd Letters. As Mr Chu points out, whether the plaintiff has a strong case against the defendants is not determinative of the striking out application. At this interlocutory stage, it cannot be said that it is plain and obvious that the plaintiff has no case at all against the defendants on this publication point.
31. As to the point that the plaintiff should have sued the IO, I agree that it is a decision for the plaintiff. In a case where several persons are jointly concerned in the publication of a libel, they may all be joined as defendants, or any of them may be sued separately: Gatley para.8.2. The plaintiff is not prevented from suing the two defendants alone even though he has not sued the IO or other members of the management committee.
Are the 1st and 2nd Letters defamatory?
32. The second main ground of the defendants’ application is that the words complained of by the plaintiff do not amount to defamatory having regard to the 1st and 2nd Letters as a whole and also because the matters stated therein are substantially true.
33. In paragraph 7 of the Statement of Claim, the plaintiff pleads that the parts of the 1st and 2nd Letters that form the basis of the claim, in their ordinary and natural meaning, meant and were understood to mean or implicated the following:
“
(i)
The plaintiff has been the actual consumer/user of the water in question, and despite being liable to pay for the chares, wilfully and unreasonably refused to pay water charges for 3 years.
(ii)
The plaintiff has been and still is wilfully trespassing and unlawfully occupying/ using a portion of the car park area.
(iii)
The plaintiff has acted unreasonably, improperly, lacks integrity and his actions have repeatedly wasted substantial time of the Management Committee, rendering the Management Committee unable to deal with other IO matter.
(iv)
The owners who have authorized the plaintiff to represent them in IO meetings should learn more about the plaintiff before making further authorization.”
34. The Statement of Claim however does not set out which of the 1st and 2nd Letters, or which part of them, is related to the above pleaded defamatory meanings. At my request, Mr Chu, who did not draft the Statement of Claim, in his oral submissions identified that:
(1) The meaning under (i) is related to the whole contents of the 2nd Letter.
(2) The meaning under (ii) is related to the heading of the 1st Letter (i.e. 非法霸佔車位 translated as “Illegal occupation of car park space”) and the second sentence in the first paragraph of the 1st Letter (i.e. 另有一項為非法霸佔車位一事與閣下有關, translated by the plaintiff as “In addition, you are also related to an incident involving illegal trespass and occupation of car park space”).
(3) The meaning under (iii) is related to the part of the 2nd Letter that stated that the letter was copied to all the owners of the Building (i.e. 抄報：世紀全體業主), but does not include the Note appearing at the end of it.
(4) The meaning under (iv) is related to the opening parts of the 1st and 2nd Letters, which stated that the letters were issued to the plaintiff as a former member of the Management Committee (i.e. 致：前法團委員黃永浩先生 世紀中心地舖I座業戶).
35. In my view, the parts of the 1st and 2nd Letters complained of by the plaintiff, in their ordinary and natural meanings, do not bear or give rise to the defamatory meanings pleaded in paragraph 7 of the Statement of Claim. In respect of meaning (i), although the heading of the 2nd Letter referred to water charges being owed for three years, there was no reference to any of the matter mentioned under meaning (i). Indeed, on a plain and fair reading of it, the 2nd Letter only stated that: (a) including the plaintiff letter dated 5 July 7, the IO had received 9 letters from the plaintiff; (b) all these letters concerned the incident of non-payment of three years water charges; and (c) the IO would not be responding because the demand was unreasonable and the IO did not have time. Not only did the 2nd Letter not bear the meaning pleaded under paragraph 7(i) of the Statement of Claim, there is nothing defamatory of the plaintiff.
36. As for meaning (ii), it is true that the heading of the 1st Letter referred to illegal occupation of car park space and that the second sentence in the first paragraph stated that the plaintiff was related to an incident of illegal occupation of car park space. However, they must be read in context. When the entire paragraph is read, it can be readily seen that the purport and meaning of the first paragraph was to ask the plaintiff for clarification so as to avoid misunderstanding. It was not making an allegation or stating as a fact that the plaintiff had illegal occupied or trespassed some car parking area.
37. The law is clear that a plaintiff cannot confine the material of which he complains to an extract from a single publication in circumstances where it is obvious that no reasonable reader would have read that extract in isolation: Gatley para.26.12. In Charleston v. News Group Newspaper Ltd [1995] 2 AC 65, it was held that a claim for libel could not be founded on a headline or photograph alone where the ordinary reader could not have failed to read further and to see at once that the headline and pictures were not to be taken at face value.
38. In the context of the present case, it would not be right to look only at the heading and the second sentence of the first paragraph. Any reasonable reader is bound to read on and, upon reading the rest of the first paragraph, could not possibly have regarded it as defamatory of the plaintiff.
39. With regard to meaning (iii), Mr Chu must be in error when he said it was borne out by the part of the 2nd Letter that stated the letter was copied to all the owners of the Building. It is more likely that the drafter of the pleading had the “Note” part of the letter in mind. Even then, the Note to the 2nd Letter only stated that the IO had incurred substantial time in dealing with the matter and other IO matters had not been attended to. There was nothing about the plaintiff acting unreasonably, improperly or is lacking in integrity, hence defamatory of him. It must be emphasized that the plaintiff’s case of libel is founded on the ordinary and natural meaning of the words complained of. Plainly, there is nothing in the 2nd Letter, or even the part of the 1st Letter relied upon by the plaintiff, that bears the meaning pleaded in paragraph 7(iii) of the Statement of Claim.
40. The same can be said about meaning (iv). Insofar as Mr Chu refers to the opening parts of the 1st and 2nd Letters, it must be noted that the words complained of by the plaintiff did not include the opening parts of both letters. They had not been set out or referred to in the Statement of Claim. If the plaintiff were having the last sentence of the 2nd Letter in mind (i.e. “The IO advised all owners to get acquainted with the representative you have appointed”), it cannot be said that this sentence on its plain wordings bear the meaning pleaded because there was no reference to the plaintiff at all. In any case, meaning (iv) carries no defamatory meaning.
41. In short, on the pleadings, there is no arguable case that the words complained of, in their ordinary and natural meaning, bear any of the defamatory meanings relied upon by the plaintiff. The Statement of Claim ought therefore to be struck out for disclosing no reasonable cause of action against the defendants.
42. Further, if one were to look beyond the part of the 1st Letter pleaded in the Statement of Claim and to have regard to the entire contents of the 1st Letter, it is plain that there is nothing defamatory of the plaintiff, whether in connection with the trespass of parking space or the arrears of water charges. The letter merely recounted what happened at the management committee meeting on 5 July 2005, which was substantiated by the minutes of the meeting. It was written for the express purpose of inviting the plaintiff to clarify the position with regard to the use of C/T Space by answering the questions set out therein. No case of libel can be founded upon it.
43. Looking at the 1st and 2nd Letters, the plaintiff cannot possibly sustain a case of libel on them. I am therefore of the view that the plaintiff’s claim cannot be improved or saved by any amendments. The action should therefore be dismissed.
44. I wish finally to deal briefly with the defendants’ argument that the plaintiff had in fact and in truth been trespassing the car parking space on the Ground Floor of the Building and had also failed to pay for the water charges consumed. To make good this part of their arguments, the defendants had exhibited minutes and resolutions of the management committee and owners meetings and other documents. In light of my conclusion that the plaintiff does not have an arguable case of libel based on the 1st and/or 2nd Letters, it is unnecessary for me to go into the evidence filed by the defendants and make any finding on them. It is sufficient for me to say that the defendants’ evidence is prima facie supportive of their case and that the plaintiff has not put in any contrary evidence even though he disputes the defendants’ contentions.
Conclusion
45. For the reasons set out above, the Master’s decision to strike out the Statement of Claim and dismiss the action is correct. The appeal is therefore dismissed. Applying the normal rule of costs follow event, there is an order nisi that the plaintiff pays the defendants the costs of the appeal, to be taxed if not agreed.
(C Chu)
Mr George Chu instructed by Messrs Hampton Winter & Glynn for the plaintiff.
Miss la Fontaine Chung instructed by Messrs Darin Leung & Partners for the 1st and 2nd defendants.
Appeal allowed: see CACV212/2007 dated: 13 February 2008