WAI & CO (A FRIM) v. MA WA BUN

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

Delivery of Decision on Assessment: 15th April, 1996.

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

ASSESSMENT OF DAMAGES

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

1. The Plaintiff is a firm of solicitors, of which Mr. Wai Yip Hin is the Principal and sole proprietor. The Defendant was a former client of the firm.

2. This is an action for damages for defamation and trespass. The writ was issued on 13 July, 1995, and originally contained claims for injunctions retraining the Defendant from further defamation and from entering the offices of the Plaintiff. The Defendant filed an acknowledgment of service stating that he did not intend to contest the proceedings. On 3 August the Plaintiff entered interlocutory judgement, on the grounds that no intention to defend had been given, for damages to be assessed and costs to be taxed. The claims for injunctions were expressly waived.

3. Evidence was given before me on behalf of the Plaintiff by Mr. Wai and Miss Au Wai Chi. a secretary with the firm. The Defendant cross-examined the witnesses but declined to give evidence himself and called no witnesses.

4. It was the case for the Plaintiff that in 1992 the firm acted on behalf of the Defendant in the purchase of a flat. After completion, the title deeds and other documents relating to the flat were sent to the mortgagee bank. On 15 May, 1995, the Plaintiff received a letter from another firm of solicitors, acting on behalf of the Defendant in selling the flat, requesting certified copies of 3 documents relating to the flat. The Plaintiff replied that none of the documents were in their possession, one being with the mortgagee bank, and that certified copies of the other 2 documents could be obtained from the Land Registry.

5. On 24 May, the Defendant came to the offices of the Plaintiff and requested production of the documents his solicitors had asked for. Mr. Wai instructed Miss Au to tell the Defendant that, as he had other solicitors acting for him in the sale of the flat, the Plaintiff could not communicate directly with him and would sort the matter out with his solicitors. At this the Defendant became angry and made a lot of noise and disturbance in the reception area. The Defendant said loudly about the firm "You have mishandled the transaction. You were irresponsible. You must pay back the money for obtaining the certified copies of the missing documents."

6. At that time there were 4 or 5 clients in the compact reception area.

7. The Defendant was asked to leave but he refused to do so and loudly repeated the same statements about the firm. The Defendant told the clients that because of the missing documents his solicitors had obtained $5,000 from him, and he asked the other clients not to instruct the Plaintiff to act for them. These were clients who had instructed the Plaintiff in connection with the sale and purchase of properties.

8. The staff of the Plaintiff then requested assistance from the buildings security guards, whereupon the Defendant became even more enraged and continued to loudly shout the same accusations against the Plaintiff. The security guards having failed to arrive. Mr. Wai then rang the police, whereupon the Defendant left, still repeating his accusations against the Plaintiff.

9. On 26 May, the Plaintiff wrote to the Defendant demanding that he desist from entering their premises, send them a letter withdrawing the defamatory statements and apologising, desist from repeating the defamatory statements, and indemnify the Plaintiff against all loss incurred by reason of his trespass and defamation. The letter told the Defendant that if he failed to give the Plaintiff a written undertaking on these matters by the next day legal proceedings would be instituted against him without further notice. No reply was received to the letter.

10. On 30 May, the Law Society wrote to the Plaintiff, enclosing a letter to the Society from the Defendant alleging that the Plaintiff had acted sloppily and irresponsibly causing him to suffer from time and money. The Plaintiff explained its position to the Law Society in a letter dated 1 July. No action has been taken against the Plaintiff by the Law Society. As stated above, the writ was issued on 13 July.

11. The Defendant cross-examined Mr. Wai. Whilst doing so, the Defendant denied using the defamatory statements complained of, and denied asking the clients not to instruct the Plaintiff. Mr. Wai agreed that the Defendant's noisy behavior lasted 15-20 minutes. Mr. Wai confirmed that he was not aware of any actual loss suffered by the Plaintiff.

12. Miss Au confirmed Mr. Wai's account of the events of 24 May.

13. In the absence of any evidence to contradict that of Mr. Wai and Miss Au, I accept that their account is substantially correct and I shall assess damages on that basis.

14. Such assessment presents considerable problems. The only authority Mr. Mak relied upon substantially is the case of Kan Chunk Ming, Tony v. Li Kwong Ming alias Li Chi Fung, 1985, No. A3199, in which damages were assessed by Master Woolley. The only factors about that case in common with the present case are that it was a defamation case in which the Plaintiff was a solicitor. Beyond that the facts were very different. The Plaintiff and Defendant were members of a Residents Association and the defamation arose in connection with events concerning that Association. The defamation consisted of libel contained in a document circulated by the Defendant to about 300 members of the Association. The circulation occurred only 2 days before elections for a District Board in which the Plaintiff was a candidate. The document identified the Plaintiff as a solicitor, and the Master found that the Defendant's intention was to damage the Plaintiff's professional reputation, as well as that as a man in a position of trust and member of the Residents' Association. The Master further found that the Plaintiff's reputation had been severely tarnished in the minds of at least some of his neighbors and that he had been caused considerable distress. The Master further found evidence of malice on the part of the Defendant.

15. The Master awarded damages of $65,000 and Mr. Mak suggested that in view of inflation that figure should be updated to $130,000, and awarded in this case.

16. In the present cause, the slander uttered by the Defendant was in the presence of a handful of people and was clearly said in anger and without forethought. I have no reason to find that there has been any actual damage caused to the Plaintiff. I would be surprised if similar or worse angry scenes have not taken place in other solicitors' officers on a significant number of occasions without being the subject of proceedings for defamation and trespass. The Defendant in cross-examination asked Mr. Wai whether the reason this action was brought was because of his complaint to the Law Society, and I must say that it does seem to me possible that, without that complaint, this action may indeed not have been brought.

17. Against the Defendant it has to be said that he has not at any time offered any apology.

18. Clearly, this action has not been brought as a money-making exercise, but to protect the firm's reputation, and make it clear to the Defendant that his conduct was unacceptable and must not be repeated.

19. I do not think this is a case in which nominal damages are appropriate. On the other hand, given that I shall order the Defendant to pay the costs of assessment, I do not think a substantial award is merited either.

20. I assess damages in the sum of $25,000. Interest will be at the rate of 2% p.9 from the date of the writ until judgment.

21. Costs of assessment to the Plaintiff with a certificate for Counsel.