POON KI CHI v. POON CHUK HUNG JASON

HCA 514/2024

[2024] HKCFI 1006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 514 OF 2024

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D E C I S I O N

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1.  This is an application by the plaintiff for an injunction against the defendant in respect of three alleged defamatory statements published by the defendant by way of summons dated 22 March 2024 (“the Summons”).

2.  Shortly before the hearing, the plaintiff’s solicitors handed up to this court the 2^nd Affirmation of Tsoi Kwai Lok exhibiting an email sent by the defendant to the plaintiff’s solicitors at 5:22 pm on 27 March 2024 (“the Email”). I shall refer to the Email later in this Decision.

3.  By way of background, the plaintiff is a well-known presenter of an online radio. She is the owner of a YouTube channel known as “The Little Nanny”, having 23,400 subscribers. On the other hand, the defendant is a popular YouTuber too and is the managing director of Lockill Biochemical Limited (“Lockill”).

4.  The plaintiff was once an employee of Lockill and the plaintiff sued Lockill at the Labour Tribunal for unpaid wages under LBTC 3098/2021 after her employment with Lockill had been terminated. In the end, judgment was entered against Lockill and the judgment debt is still outstanding.

5.  The three alleged defamatory statements were published in the following circumstances. First, on 13 March 2024, the defendant published a public post on his Facebook account which read as follows:

“《佛教雞棚裡的孽種》之是誰偷了李嘉誠慈山寺的漢白玉佛？

好了，偷走李嘉誠慈山寺漢白玉佛的匪徒現形了。香港警方是否需要主動拘捕這些盜竊及詐騙匪徒？

潘麒智 : 企圖安排公司車在晚上運走，公司發現阻止。唔認唔認還需認，認找了功德主繳付運費自己安排偷了。

陳金兒 : 亦說找了功德主繳付運費，十幾二十萬，造孽安排了。

兩個居士都異口同聲指是洞鈜法師指使。以後，潘居士和陳居士就無需要再裝作不認識，妳們兩個在同一個晚上，分別收了功德主運費，將屬於李嘉誠慈山寺的漢白玉佛，一齊偷走到荃灣佛堂。

與此同時，其實大約差不多的時候，洞鈜法師就要求在與我們公司的管理合約上，加入條款第6條，阻止隔絕這兩個居士不斷纏擾着他。

翁靜晶其實在幫手搭雞棚！

#居士供應法師食肉

#錄影要脅掘錢

#屈法師叫雞

#居士偷李嘉誠漢白玉佛

#同一佛像兩居士搵兩功德主呃運費

#聯手抬價造馬但裝作不認識

#假博士學歷

#凱莉山招搖撞騙

#成堆KOL幫手搭雞棚

#想騙走祖堂地

#想建骨灰庵

這個佛教雞棚實在精彩！”

6.  In a nutshell, the defendant accused the plaintiff of stealing the Buddha statue situated at the Tsz Shan Monastery and arranging a transportation company to assist the theft. Allegedly, the Buddha statue was transported to another Buddhist temple located in Tsuen Wan. The defendant also accused the plaintiff of swindling the benefactors out of the transportation charges raised among them.

7.  Then, there were two videos published by the defendant on his YouTube channel on 13 March 2024 to 14 March 2024. One was entitled, “240313…”, and another one was entitled, “240314…”. Both YouTube videos repeated the defamatory statements against the plaintiff concerning the alleged theft of the Buddha statue and gave more details about the same.

8.  On the other hand, the defendant made another allegation of theft relating to some surgical masks owned by Lockill by the plaintiff.

9.  The plaintiff says that these defamatory statements are false. They disparaged her, damaging her reputation and causing her distress and embarrassment. Further, the plaintiff says that the defendant is likely to publish or republish similar defamatory statements about her unless otherwise restrained by the court.

10.  I now turn to the Email. In the Email, the defendant asked the solicitors of the plaintiff to exhibit the Email to this court and the defendant claimed that he was unable to attend the hearing without giving any explanation.

11.  The defendant alleged that he only received the court documents relating to this application very late and hence he was unable to deal with it. He even accused the plaintiff’s solicitors of causing him to be unable to engage legal representative by intentionally late or even non‑delivery of the court documents.

12.  I do not find any substance in this complaint. I have read the Affirmation of Tsoi Kwai Lok and Mr Tsoi deposed to the fact that, in addition to service by ordinary post on 22 March 2024 at around 4:32 pm, the handling solicitor sent an email to the defendant enclosing a copy of the Summons, the supporting affirmation and a cover letter for the service of the Summons. In that email, the plaintiff’s solicitors expressly reminded the defendant to attend the hearing of the Summons scheduled on 28 March 2024.

13.  That email was exhibited to that affirmation and I have read the same. I have no reason to disbelieve the affirmation evidence of Tsoi Kwai Lok. Whilst the defendant may argue that there may be problems with the service, I am convinced that Mr Poon was well aware of this hearing and had received the essential documents relating to this application on 22 March 2024. He just opted not to be present.

14.  In the Email, Mr Poon went on to say that he had no adverse opinion on the injunction order now sought by the plaintiff. His only reservation is about the terms and scope of the injunction, which he says is too broad and imprecise. I will come to that later.

15.  Mr Tam, together with Mr Kwok, appearing for the plaintiff, helpfully refers this court to the relevant principles governing the grant of interlocutory injunction in defamation cases. The well-established principles in American Cyanamid are equally applicable, save that this court has to take into account “special considerations”: Cheng Chi v Chan Hok Man [1984] HKC 35 at 41G.

16.  In Tsang Kwong Chiu Kevin v Tang Wing Hang [2018] HKCFI 1479, Anthony Chan J, having referred to Cheng Chi, explained that the justification for the special considerations is the importance of free speech, citing Greene v Associated Newspapers Ltd [2005] QB 972.

17.  I remind myself that the defendant is neither present nor represented at the hearing. I am also mindful of the general principle that the court will only grant an interim injunction in defamation cases where firstly the statement under complaint is unarguably defamatory. Secondly, there are no grounds for concluding the statement may be true. Thirdly, there is no defence which might succeed. Fourthly, there is evidence of an intention to repeat or publish the defamatory statements: see Gatley on Libel and Slander, 13^th Edition, paragraph 27‑002.

18.  In my view, this is an appropriate case that the court should exercise his discretion to grant an interlocutory injunction against the defendant to prevent further publication of the alleged defamatory statements for the following reasons.

19.  First, the statements are very serious allegations of theft, which is a criminal offence. They are unarguably defamatory. The damage caused to the plaintiff must be grave regardless of whether those statements are later found to be untrue.

20.  In the Email, the defendant did not start to justify the truth in those serious allegations of theft in the statements.

21.  Objectively speaking, those allegations against the plaintiff appear to be groundless and all that the defendant knew is that the Buddha statue was relocated from Tsz Shan Monastery to another Buddhist institution in Tsuen Wan. He was unable to identify any particular act of the plaintiff in the process showing her involvement and the mere relocation of the Buddha statue could hardly amount to theft in the absence of any evidence of disapproval on the part of the owner of the Buddha statue. There is no allegation, let alone evidence, that the owner of the Buddha statue had ever disagreed to such a relocation.

22.  Further, in the Email, the defendant did not put up or suggest any possible defence to this action.

23.  Lastly, I accept the plaintiff’s evidence that the defendant does have an intention and/or there is a likelihood that he would repeat or republish the defamatory statements despite what the defendant said in the Email.

24.  The defendant alleged in the Email that he had already changed the offensive videos from his channel to private, hence, they are not open to the public. I do not think this is enough to show his determination or intention not to further publish the defamatory videos. Even for private videos, they are still open to be viewed though the defendant can have control over the composition of his audience and, as Mr Tam rightly pointed out, the setting can in any event be reverted to public by the defendant if not restrained by the court.

25.  Just to complete the picture for the allegation of theft of the masks, the plaintiff has received a police report dated 28 March 2022 that a theft claim was made against her and because of lack of evidence, the police closed the file and completed the investigation. This is cogent evidence of the falsity of the allegation of theft of the masks. The defendant had no reason to make this allegation again two years later after the close of file by the police. When confronted, the defendant said nothing about this in the Email.

26.  All in all, I am satisfied that the plaintiff should be entitled to the injunction sought to protect her reputation and against further harm to her reputation and other losses not coverable by damages on balance of convenience.

27.  I now turn to the terms of the injunction to be granted against the defendant.

28.  I do not find the terms set out in paragraph 1 of the Summons in any way vague or too broad. Of course, the defendant should be restrained from publishing words similar to those words set out in the three alleged defamatory statements. The defendant is well educated and should have no doubt about three alleged defamatory statements. If in doubt, he should for the time being refrain from saying anything about the alleged theft of the Buddha statue and the masks.

29.  I have no problem with paragraphs 1 and 2 of the Summons and I will make an order in terms of these two paragraphs. Of course, this injunction is granted on the usual undertaking of the plaintiff to pay damages to the defendant if subsequently he found out that this injunction should not have been granted at all.

30.  On the question of costs, I make an order that costs be in the cause.