AU YEE MING IVAN v. NG FEI TIP

DCCJ 4595/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION No. 4595 OF 2008

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BETWEEN

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JUDGMENT

Introduction

1.  Au Yee Ming Ivan (“Au”) and Ng Fei Tip (“Madam Ng”) were respectively the chairman and the secretary of the management committee (“the MC”) of Central Mansion (“the Building”) located at Nos. 8-14 Cannon Street, Causeway Bay, Hong Kong. Madam Ng was in addition chairperson of the Incorporated Owners of the Building (“IO”).

2.  Au brought this action against Ng for an alleged slander spoken at an owners’ meeting held on 21 June 2008 (“the Meeting”). The words complained of (“the Statement”) were tape-recorded by Au and are as follows:

拿，區生係我嘅秘書，係我哋法團嘅秘書，資料呢，應該呢佢應該同業主，吓，攞晒D資料比大家睇，但係佢就乜都冇做到! 吓， 佢做乜嘢? 你問佢做過乜野啦! 講維修咁耐，佢做過D乜野? 應該佢做架喎D野吓，啱唔啱! 佢應該要負一大部份嘅責任，唔係我呢個主席負依D嘅責任喎! 佢做秘書呀嗎! 佢要寫、要抄、要做宣傳呀嗎! 做比大家業主睇呀嗎! 佢寫咁多唔三唔四嘅信，佢就咁積極呢! 吓，點解依D佢就唔做呢? 我唔係打擊佢。依D野，點解唔問吓我哋嘅秘書呀? 點解唔問我哋嘅秘書，點解冇呢D資料比大家睇呢? 等到今日先至來講呢? 應該問吓佢呀嗎! 啱唔啱! 佢又有財有勢，又有面，乜都有，吓，我哋應該問吓佢攞D野，佢乜野資格呀? 咁多間公司佢都喺到架，佢冇話唔喺到架喎，D資料佢亦都睇過晒嘅。佢亦都寫好晒嘅。每一間公司做乜野做乜野，佢做過架!佢冇派啫! 但係其他信佢就派喎，係咪呀! (B: 佢自己點答呀?)叫佢回應! 佢應該回應吓比我哋D業主聽呀，佢係我哋法團嘅秘書，佢應該要幫我哋做好多野架，啱唔啱! 但係佢冇同我做過呢野! 宜家D業主先至來問我攞，攞資料，你叫我去邊到攞D資料比你哋啊? (B:寫過信黎…問過啦…(聽不清)) 寫信比我哋……我哋都有秘書嘅嗎，我都跟進咗比佢架! 佢回唔回呢，我唔知架喎，佢做唔做，我唔知架喎!

3.  Au in his Amended Statement of Claim provided an English translation of the Statement: see Annexure. Madam Ng did not put forth another version. In her pleadings, she merely made no admission to the entire paragraph containing the Statement and its English translation in the Amended Statement of Claim. Nor was the English translation of the Statement challenged at the trial. In the circumstances, unless otherwise indicated, I shall adopt the English translation of the Statement provided by Au in this Judgment.

4.  Before dealing with the main battle between Au and Madam Ng and going into the background facts any further, I had to attend to a skirmish arising from the Order made by consent by H.H. Judge E. Yip dated 28 January 2010 (“the Order”) after a pre-trial review hearing (“the PTR Hearing”). The relevant parts of the Order, written in Chinese, are as follows:

a.  The Defendant do admit that the words complained of which were uttered by the Defendant referred to the Plaintiff and are defamatory in nature (§1);

b.  The Defendant do not rely on and will not raise the defence of qualified privilege (§2);

c.   Both parties to lodge a written reply to the court the maximum and the minimum of damages (if recoverable) on or before 11 February 2010 (§5) and

d.  The trial be conducted in Chinese (§8).

5.  In compliance with the Order, Au’s solicitors in their letter dated 11 February 2010 indicated that the range of damages be in the region of HK$30,000 to HK$100,000. Nothing was, however, heard from Madam Ng about her estimate of the range of damages until the beginning of the first day of the trial when her counsel, Ms. Lan, informed the court that any damages recoverable could only be nominal.

6.  The trial of this action was conducted in Chinese. The pleadings and the written closing submissions of the parties are in English. With the agreement of the parties, this Judgment is in English.

Application to withdraw concessions in the Order

7.  By letter dated 24 March 2010 filed with the Registry of the District Court on 25 March 2010, Madam Ng’s solicitors informed that this court that Ms. Lan, just instructed a few days prior to the trial, would seek leave to withdraw the admissions contained in paragraphs 1 and 2 of the Order at the trial on the ground that Ms. Lan adopted a different view that Madam Ng’s statement made on 21 June 2008 was not defamatory and that Madam Ng should rely on the defence of qualified privilege.

8.  The effect of these concessions in paragraphs 1 and 2 of the Order is that despite the non-admission of the defamatory nature of the Statement and the plea of qualified privilege in her Amended Defence, Madam Ng now accepts that the Statement is defamatory and agrees not to raise the defence of qualified privilege.

9.  At the outset of the trial, Ms. Lan made the application as indicated by the letter. The application was however not supported by any evidence and was opposed. After hearing counsel’s submissions, the application was dismissed with costs to Au with certificate for counsel. For the assistance of the taxing master, I made it clear that the hearing of the application lasted for 2.5 hours. The reasons for the refusal of the application appear below.

10.  On the governing principles in this application, the parties differed. Ms. Lan contended that the governing principles should be those relating to applications for withdrawal of admissions and, relying on the commentary at §27/3/9 of the Hong Kong Civil Procedure 2010 and Singh Balwinder v. Sino Phil Engineering Services Ltd. [2007] 1 HKLRD 561, leave to withdraw an admission should normally be given in circumstances where (a) it can be done without injustice to the other party; (b) there is no question of bad faith and (c) a triable issue with reasonable prospect of success is raised.

11.  Mr. Leung, Counsel for Au, referred me to a Court of Appeal decision in CML v. LMH [2010] HKLRD 818 where Cheung JA at §§4-5 had this to say about a consent order:

“A “consent order”, which is made pursuant to an agreement between the parties, is an agreement or a contract binding on the parties…A party to a “consent order” must establish the existence of exceptional circumstances which justify rescission of the underlying agreement. Exceptional circumstances include: the applicant erroneously consented to the agreement, he was misled by the misrepresentation of the other party into giving his consent to the agreement, or the court considers it grossly inequitable to require the parties to abide by the agreement.”

12.  Ms. Lan did not seek to argue against the correctness of the foreging principles. Instead, she argued that the Order was in substance not a consent order despite its label and it was “merely an order of the court which were made by parties without objection, and not one evidenced by any genuine contract between the parties.”

13.  In this connection, Ms. Lan relied on C.Y. Tsun Investment Company Limited v. The Incorporated Owners of Hoi To Court, unreported, HCSA 16/2003, 2.7.2004. There A Cheung J set aside a consent order which was made by a presiding officer of the Small Claims Tribunal on his own volition with the agreement of the parties to adjourn the hearing of a case and refer the parties to arbitration pursuant to an arbitration clause which A Cheung J found inapplicable in the particular circumstances of that case. His Lordship found that the tribunal was in error when it explained to the parties acting in person that the arbitration clause would possibly require the claim to be stayed in favour of arbitration. His Lordship, after reading the transcript of the relevant proceedings as a whole, further held that despite the label “consent”, it was merely an order of the court to which the parties did not object so as to save time and costs, which could be disturbed (whether on appeal or otherwise) according to normal principles. His Lordship further held that if the consent order really embodied or evidenced a genuine contract, it would still be liable to be disturbed given the most basic and fundamental mistake of all concerned regarding the enforceability of the relevant arbitration clause.

14.  In her written submissions, Ms. Lan set out the circumstances under which the Order was made. It was stated that at the PTR Hearing, it seemed that Judge E. Yip had formed the view that the Statement was defamatory in nature and that Madam Ng was not entitled to rely on the defence of qualified privilege. Judge E. Yip went on to make a detailed and lengthy inquiry of Madam Ng’s position with her solicitor. Then the solicitor for Madam Ng eventually backed down and indicated to Judge E. Yip that Madam Ng would neither argue against the defamatory nature of the Statement nor rely on the defence of qualified privilege. Judge E. Yip allowed an adjournment for the parties to reduce these concessions into writing and subsequently made the Order incorporating these concessions together with other directions.

15.  Ms. Lan submitted that, against this background, the Order did not actually evidence a contract but only meant that the parties did not object to the Order being, in which case the court could alter its terms: Leung Yee & Another v. Ng Yiu Ming & Another, [2001] 1 HKLRD 309 at 321H per Woo JA.

16.  On the true nature of the Order, I have simply no evidential basis to come to the conclusion that it was anything other than a genuine contract between the parties. Whilst I have no doubt that the account advanced by Ms. Lan was based on her instructions, I cannot lightly accept the truth in the account without its being verified by way of an affidavit. There is moreover no reason why such an account was not narrated in an affidavit if her instructing solicitor has any conviction in it. I could not accept Judge E. Yip had intended to make the Order in any event and exerted any pressure on Ng’s solicitor to make the concessions. Nor could I believe that Ng’s solicitor was so feeble-minded as to make such concessions just after the lengthy discussion with Judge E. Yip. I would expect very solid evidence such as the transcript of the PTR Hearing to substantiate these allegations but there was none.

17.  It is common ground that the Order was made only after Madam Ng’s solicitor and Mr. Leung on behalf of Au signed a document of their own free will during an adjournment. Undoubtedly the parties were involved in negotiations during the adjournment and finally came up with the written document embodying the concessions. The written document formed the basis of the Order. I fail to see anything untoward about the making of the Order as contended by Ms. Lan.

18.  In the premises, I would adopt the approach of Cheung JA in CML v. LMH, op. cit., and not that relating to withdrawing an admission under Order unless there are exceptional circumstances, the parties should be held to the agreement embodied in the Order.

19.  The major reasons for withdrawing the concessions advanced by Ms. Lan were that the concessions made by Madam Ng’s solicitor appearing for Madam Ng at the PTR Hearing were not on factual issues but were legal issues and should not have been made and they were made, in her own words, “perhaps for a misapprehension of the law harboured on the minds of both the learned judge and himself”.

20.  Ms. Lan explained that with or without the concession that Au had to discharge the burden to prove that the Statement was defamatory and bore the meaning as pleaded in his pleadings. As regards the defence of qualified privilege, Ms. Lan said it was obvious that this defence was available to Ng as she published the Statement during the Meeting in her capacity as the chairperson. Thus, Ms. Lan contended that the concessions were wrongly made.

21.  Whilst I agree that Au has to prove that the Statement is defamatory and bear the meanings as pleaded to establish his claim, I cannot agree that the concession that the Statement is defamatory is solely on a legal issue incapable of being agreed by the parties.

22.  In defamation, whether the words complained of carry a defamatory meaning is an issue of fact, which must involve two elements: what the words mean and whether that meaning is defamatory: Gatley on Libel and Slander, 11^th ed. at §36.3. For the latter element, it involves two stages and in a trial by jury, whether the words are capable of being defamatory is to be decided by the judge as question of law, whether the words do in fact convey a defamatory meaning is still a question for the jury.

23.  Lord Reid in Morgan v. Odhams Press [1971] 1 W.L.R. 1239 at p.1243 had this to say: “I have more than once stated my view that the meaning of words is not a question of law in the true sense … It is simply a question which our law reserves for the judge.”

24.  Even if the concession involves a legal issue to be decided by the court, it would only mean that the concession is not binding on the court and the court is still to decide on the legal issue as to whether the words are capable of being defamatory. If Au can deny that the Statement is defamatory in her pleading, I cannot understand why she cannot admit the defamatory nature of the Statement as a matter of law. Madam Ng and/or her solicitor were perfectly entitled to make the concession and I do not accept that her solicitor and Judge E. Yip ever laboured under any misapprehension of the law in regard to this concession.

25.  I too cannot accept that the abandonment of the defence of qualified privilege resulted from any mistake of the law. There is no evidence as to how and why Madam Ng’s solicitor agreed to abandon this defence. Nor is there any suggestion let alone evidence that Mr. Leung was ever mistaken in whatever manner. As with all plaintiffs, Mr. Leung simply should not refuse on behalf of Au any abandonment of a particular defence pleaded. There could be no mutual mistake so as to invalidate the agreement contained in the Order.

26.  Furthermore, to establish this defence, Madam Ng has to prove that the Statement was made on an occasion of qualified privilege and that Madam Ng and all those who attended the Meeting and heard the Statement had a common and corresponding interest in the subject matter of the Statement. In passing I note that no material facts is pleaded to substantiate such common and corresponding interest at all in the Amended Defence. This defence certainly involves factual issues and not just legal issues.

27.  It was further said that the defence was clearly open to Madam Ng and Judge E. Yip should not disregard this defence. To start with, it is completely within the autonomy of the parties as to what pleas should be included in their pleadings and what pleas should be abandoned. I do not accept that on the material before Judge E. Yip, it must be clear that the abandonment of the defence of qualified privilege was wrong as a matter of law and Judge E. Yip should not have allowed Ng to make such a concession.

28.  I do not agree that Au would suffer no prejudice if the concessions were allowed to be withdrawn. The application was made at the eleventh hour right before the trial was to commence and certainly Au would have prepared the case differently if there had not been such concessions.

29.  Both Ms. Lan and Mr. Leung referred to me the objectives of the CJR set out in Order 1A, Rules of the High Court (“the RHC”). I do not intend to set them out here. Suffice it to say that under the CJR, parties are encouraged to, as far as possible, narrow down their issues before trial so as to reduce unnecessary costs. If a party is allowed to press the undo button and raise issues which have already been agreed to be abandoned just because his/her new legal representative has a different idea, all such case management effort previously made will turn into an exercise in futility. This plainly runs counter to the spirit of the CJR and cannot be right.

30.  Whilst I agree that the primary aim of the court is to secure the just resolution of disputes in accordance with the substantive rights of the parties, the court do expect the substantive rights of the parties to be well taken care of their respective legal representatives in this adversarial system of litigation and they are free to decide how to formulate and conduct their respective case in the best interest of the parties.

31.  No doubt Ms. Lan opined that the concessions were unwisely made. However they were merely bad decisions made by Madam Ng’s solicitor at most and I do not find any vitiating factors to set aside such parts of the Order relating to the concessions. There is simply no exceptional circumstances which may justify Madam Ng’s rescission of the agreement evidenced by the Order. Accordingly I dismissed the application.

32.  In her written closing submissions, Ms. Lan invites the court to reconsider the application IF the court takes the view that the concessions in the Order were tantamount to a total admission of Au’s case save the issues of malice and damages. Ms. Lan submitted that the court was entitled to reopen the issue because my dismissal of the application had not been drawn up in an order, citing Hong Kong Property Services (Agency) Ltd v. Pioneer Venture International Limited, unreported, CACV 236 of 1998, 7.1.1999. No new ground is advanced to support the application if it was allowed to be reconsidered.

33.  I do not think that the concessions in the Order establish the entire case of Au save the issues of malice and damages in the first place. The concession that the Statement is defamatory is not helpful in that the libelous meaning is unknown. I do not take it the position of Ng that she agrees that the Statement bears the meaning as ascribed by Au. Thus, basically I do not need to re-consider the application.

34.  In any event, I am not persuaded that I should do so. Though before an order is sealed a court has jurisdiction to vary its order, strong reasons are required before the court would do so and the power would only be exercised in exceptional cases: Re Kennedy [2007] 5 HKC 75 per Yuen JA at §4.

35.  Further, the following headnote summarizing Rix LJ’s view on this subject in Noga v. Abacha [2001] 3 All ER 513 is apposite. It was adopted and cited with approval by the Court of Appeal in Sub Jianqiang v. Trans-Island Limousine Service Ltd. [2004] 1 HKC 533 per Woo JA at §25.

“The court’s jurisdiction to reconsider its judgment before its order had been perfected could only be exercised in a case which raised considerations, in the interests of justice, which were out of ordinary, extraordinary or exceptional. An exceptional case did not have to be uniquely special, and ‘strong reasons’ was perhaps an acceptable alternative to ‘exceptional circumstances’. It would necessarily be in an exceptional case that strong reasons were shown for reconsideration. In the instant case, there were no such reasons. It was a case where it was said that the judge had got it wrong, on points which had been argued. The appeal process would be subverted if the application were granted. There were, of course, cases where an error of fact or law might be too plain for argument, and it was better that the error was corrected without imposing on the parties the need for an appeal. It was wrong, however, for a judge to be treated to an exposition such as would be presented to a court of appeal. If in such circumstances a judge should be tempted to open up reconsideration of his judgment, an appeal would not be avoided: it would be made inevitable. Every case would become subject to an unending process of reconsideration, followed by appeal, both on the issue of reconsideration and on the merits. Accordingly, the application to reconsider the judgment would be dismissed.”

36.  With these principles in mind, I do not hesitate to refuse to reconsider the application. I am not given any strong reasons why I should do so and I am far from convinced that the present case is an exceptional one.

37.  There is no application for leave to appeal against my decision to dismiss the application. The trial was proceeded on the basis that the Order was binding on the parties and eventually Ms. Lan did not make any submissions on the defence of qualified privilege in her closing submissions. In the circumstances, I will not deal with the abandoned plea of qualified privilege in this judgment.

Background Facts

38.  I will first outline the relevant background facts leading to the making of the Statement on 21 June 2008 in chronological order. Unless stated otherwise, they are largely uncontroversial and evidenced by contemporaneous documents, the contents of which are not in dispute.

39.  As indicated by the date of its Deed of Mutual Covenant (3 December 1965) registered with the Land Registry, the Building was constructed in the 1960s. It is a residential building save that there is a shopping arcade comprising both the ground floor and the first floor of the Building. The shopping arcade is called “The President Shopping Centre” (總統商場).

40.  Madam Ng became the registered owner of Unit 8G of the Building in October 1985. She became the chairperson of the IO in 1996 and at the Meeting, she still assumed such a position. She is now in her seventies.

41.  Au is a middle-aged businessman. Before the outbreak of SARS in 2003, he was active in the food and catering business and he had been the Vice-President of a public company, namely, Tack Hsin Holdings Ltd for a few years since 1993. He focused on property investment afterwards and he now has a number of landed properties registered in his own names and/or his nominees’ names.

42.  Au acquired 2 shops in The President Shopping Centre in 2005 by his 2 companies. First he purchased Shop No. 25 in May 2005 to be registered in the name of Fortune Wind Limited and in August 2005 he purchased Shop No. 6 to be registered in the name of New Track Limited. Au was a shareholder of both Fortune Wind Limited and New Track Limited, the latter being a BVI company. In September 2006, his wife Lai Ann became the sole registered owner of Unit 9C of the Building. In October 2008, after the Meeting, by a deed of gift, Au and Lai Ann became co-owners of the unit in joint tenancy.

43.  At the owners’ meeting held on 15 May 2007, Au was elected secretary of the MC in the capacity of the shareholder of New Track Limited and Madam Ng was re-elected chairperson. According to its minutes of the meeting signed by both Madam Ng and Au, Madam Ng reported that in January 2007 it had been resolved that repair works be carried out. It was then resolved unanimously that pursuant to the order of the Building Authority, the IO should engage surveyors for such repair works.

44.  As with other buildings constructed in the 1960s, the need for the Building to be renovated was evident. From the land search records in respect of Madam Ng’s unit and Au’s units, it can be seen that the Building Authority saw fit to register against their units a building order under section 24 of the Building Ordinance, Cap. 123 (“the BO”) demanding demolition/alteration of the Building or its unauthorized building works on 15 May 2006 and another building order under section 26 of the BO declaring the Building to have been rendered dangerous or liable to be dangerous on 29 January 2008.

45.  In July 2007, Progressive Property Management Company Limited (“PPMCL”) was commissioned by the IO to provide management services to the Building. Such services included preparation of notices and minutes. One Mr. Lam Yu Fat (“Lam”) was in charge of the management of the Building on behalf of PPMCL.

46.  Upon its appointment, PPMCL was soon entrusted to secure a project consultant for the renovation works to be carried out. Byad Consultants Limited (“Byad”) was subsequently engaged to oversee the intended renovation project. In January 2008, Byad made a proposal of the renovation project and had it posted at the lobby of the Building. Byad further prepared tender documents for the IO for the purpose of engaging a contractor.

47.  As evidenced by the minutes of a meeting of the MC dated 25 April 2008, the members of the MC, the PPMCL representative (Lam) and the representative of Byad met 12 out of 13 contractors which had put in valid tenders on 15 and 16 April 2008 and the 12 contractors introduced themselves and their proposed work system and answered the queries of the members of the MC and the representative of Byad.

48.  The MC further unanimously endorsed the contents of the agenda and voting forms prepared by PPMCL for the owners’ meeting on 23 April 2008.

49.  On the other hand, in or about December 2007, a group of owners of the Building set up an organization called “中央樓聯售業主促進會” (English translation: Central Building Promotion of Joint Sale by Owners Organisation) (“the Organisation”). As its name suggests, the common aim of the Organisation is to promote joint sale of the units of Central Building to developers.

50.  Au was the secretary of the Organisation. Madam Ng was not even a member and she was once invited to be the consultant of the Organisation but she refused to join the Organisation. She had a different idea about the intended joint sale. Madam Ng told the court that her relationship with Au deteriorated after the formation of the Organisation.

51.  On 23 April 2008, an owners’ meeting chaired by Madam Ng was held. Au, one Cheung Tse Wah of Byad (“Cheung”) and the staff of PPMCL attended the meeting. There Cheung reported the progress of the renovation project of the Building and explained that the contractors were interviewed and that they would be interviewed again by the MC members and Byad in an attempt to talk down their project fees. It was ultimately resolved that the renovation project be proceeded with as proposed by Byad.

52.  On the other hand, Byad prepared a 2-page document setting out the quotations of the 13 contractors with detailed breakdowns (“the Document”). Byad also gave its own rating of each of the 13 contractors. According to Lam, the Document was given to the members of the MC for reference. Neither Madam Ng nor Au could be sure as to whether the Document was ever distributed among the owners.

53.  Byad arranged another interview session with some of the contractors after 23 April 2008. Byad, PPMCL and the MC members attended the interview session. There, the contractors were asked to cut their project fees. It was unknown when the meeting took place and there is no written record of the session.

54.  There is a letter dated 6 June 2008 written by Au (“the Letter”). It was addressed to Madam Ng and each of Lam and Byad was given a copy of the Letter. In the Letter, Au suggested, in light of many owners’ concern, that the identity of the contractors which had put in tenders and their reduced project fees be disclosed to the owners before the Meeting (to be held on 21 June 2008) as soon as possible and that such contractors and Byad should be invited to the Meeting to answer the queries of the owners relating to the revocation project. Au said the Letter was faxed to the management office for Madam Ng but Madam Ng denied having received the Letter.

55.  There are further 4 copies of a letter dated 10 June 2008 signed by different owners of the Building (“the 10 June Letter”). By this letter, the owners requested for the information of the contractors and their proposal to be given to them one week before the Meeting.

56.  Again some owners issued a similar letter dated 18 June 2008 (“the 18 June Letter”) to Ng. They complained about the inadequacy of information of the contractors and their lack of knowledge about the outcome of re-negotiation of project fees. They claimed that they had difficulties in voting which contractor was to be engaged for the renovation project.

57.  On 20 June 2008, Au offered his personal notes taken during the 15 and 16 April 2008 (“the Notes”) to be distributed among the owners. Ng rejected this offer on the ground that she and the MC had ever read the Notes before and it was too late.

58.  The Meeting was held on the next day. What transpired at the Meeting was best evidenced by its minutes prepared by Lam and signed by both Au and Madam Ng dated 30 June 2008 (“the Minutes”). The transcript of a part of the tape-recording of the Meeting prepared by Au’s solicitors can further tell what happened during the Meeting.

59.  About 50 persons attended the Meeting. Owners (or their proxies) of 73 units of the Building, Ms. Ng who was a District Councilor, Ms. Chan of the District Office, Cheung, the staff of PPMCL including Lam and representatives of 5 contractors took part.

60.  Madam Ng chaired the Meeting and at the very outset she made a report on the renovation project. She explained that due to the venue and time constraint, only 5 contractors with the lowest tenders were invited to attend the Meeting to elaborate on their renovation proposal and their company information.

61.  It is unfortunate that the tape-recording started right at the publication of the Statement and not at the very beginning of the Meeting. According to the Minutes, some owners complained that the posting of the renovation costs and the information of the contractors were given not in good time before the Meeting. As a result, they said they did not understand the background of the contractors. They proposed that the vote on contractors should be postponed so that the owners could have time to know the contractors better. Madam Au added that these owners were members of the Organisation. The Statement was made by Madam Ng in response to such a complaint.

62.  Central issues in these proceedings are:

(1)  What was the meaning of the Statement?

(2)  Was it defamatory of Au?

(3)  If so, whether Madam Ng could rely on justification and/or fair  comment?

(4)  What is the appropriate quantum of damages (including  aggravated damages, if any)?

63.  There are some factual issues raised. I do not find it necessary to make findings in respect of each and every of factual issues. As my analysis below will show, as far as liability is concerned, most of such factual issues are in fact of little relevance.

The Witnesses

64.  To support his claim, Au called Lam and Madam Cheng Kam Ping (“Madam Cheng”) who was the owner of Unit 6N of the Building, to testify along side with him. Madam Ng herself alone testified for her defence.

65.  I have had ample opportunity to assess the credibility of Au and Madam Ng when they testified in court. Au is a seasoned businessman and property investor. He was both clear thinking and articulate in the witness box. He strikes me as a credible and forthcoming witness and he tried his best to tell the truth to the court though understandably not all his recollections are accurate and inevitably he made mistakes. I am unable to read anything sinister into such mistakes despite Ms. Lan’s forceful submissions. His temper began to fray one or two times during the very lengthy cross-examination and complained about the reasonableness of the questions put to him. Nevertheless, on the whole, he was composed and able to give answers spontaneously and coherently.

66.  Madam Ng gave me the opposite impression. She did not appear to have fully prepared to testify in court and she did not show a good understanding of what the major factual issues were. She gave answers causally without showing strong conviction in them. She struck me as an obstinate person and she just could not hide away her hostility towards Au. At times she appeared to be evasive and gave excuses readily.

67.  A graphic illustration is that when Ms. Lan referred her to her supplemental witness statement in a bid to rectify a minor mistake[1], knowing that there was a mistake, she immediately answered that she did not read the document and did not know its contents at all. When pointed to her by Ms. Lan that in the document Mr. Cheung, her solicitor, made a declaration that he had read and explained the contents of the document to her, Madam Ng had another story to tell without hesitation. She told the court that she was suffering from diabetes at that time. It was already nine something in the evening. She missed her second dose of her medicine on that day. She was hence not very clear-minded and she was sweating. She said she actually did not understand Mr. Cheung properly when he explained the contents of the document to her. She just wanted to leave as soon as possible.

68.  I do not believe her explanation at all. She just made up the story as she went along. Generally I find her an unreliable witness and I have little difficulties in rejecting the majority of the material evidence given by her whenever it was in conflict with that of Au.

69.  Lam’s evidence was mostly not contradicted and is supported by documentary evidence. I find him a truthful and reliable witness on the whole.

70.  As regards Madam Cheng, she was a member of the Organisation and among those owners who complained about the late disclosure of contractors’ information. She was also the author of the 10 June Letter and clarified that the 18 June Letter was not written by her but by other owners. Her evidence was not satisfactory and sounded unreliable. She was not helpful and was just too ready to claim to have a poor recollection about those matters raised in cross-examination. In any event, her evidence is of little relevance given the undisputed documentary evidence available.

Slander Actionable per se?

71.  Mr. Leung submitted that Au’s action for slander is actionable for two reasons. First, he prayed in aid section 23 of the Defamation Ordinance (“the DO”), Cap. 21, which provides as follows:

“In an action for slander in respect of words calculated to disparage the plaintiff in an office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.”

72.  Mr. Leung pointed out that this provision was identical to section 2 of the Defamation Act 1952, which was held by Gray J to remove the old distinction between offices of profits and of honour in Maccaba v. Lichtenstein [2004] EWHC 1580 QBD.

73.  In the premises, even Au’s office as the secretary of the MC was one of honour and Au was not remunerated for his service, section 23 of the DO entitles Au to sue for the alleged slander without proof of special damage so long as he was disparaged in such an office.

74.  I agree with Mr. Leung. The wordings of section 23 of the DO are very clear. The word “office” must include both offices of profits and of honour. In Lee Man Kin v. Wang Mei Chun, unreported, HCA 2876/2003, 19.8.2005, Deputy Judge L. Chan made no distinction between offices of profits and of honour and allowed the slander claim of the plaintiff who was disparaged in his office of a block representative and a member of a residential owners’ subcommittee of a development without proof of special damage in reliance of section 23 of the DO (at §40).

75.  Mr. Leung further submitted that Au’s claim is in any event actionable without proof of special damage by reason of his being a businessman at the time when the Statement was published. Mr. Leung argued that businessmen are sui generis who can sue without proof of special damage even they were only disparaged in their private capacity.

76.  In this connection, Mr. Leung relied on a passage in Carter-Ruck on Libel and Slander (5^th ed.) p.86, which made reference to the following speech of Lord Haldane in Jones v. Jones [1916] 2 AC 481 at 491:

“In speaking of the imputation of such a want of “general requisite” as actionable in itself I think that Bayley B. was referring to certain decisions which show that, in the case of a trader, the Courts construed language which might affect his credit to be presumed to be directed against his credit as trader, although no express “colloquium” touching his trade had been proved. The Court, who leaned specially to the protection of traders, appear to have made this presumption almost, if not quite, as matter of law for the security of commerce. But Bayley B. observed that the words must be such as to have “a natural” as distinguished from a merely probable tendency to damage the plaintiff’s reputation in his calling. In Jones v. Littler Parke B. laid down this exception to much the same effect. A brewer was alleged to have been locked for debt. It was found that in the “colloquium” he had been referred to as a brewer. But Parke B. said that “even if” the words “were spoken of him in his private character, I think the case of Stanton v Smith (3) is an authority to shew the words would have been actionable, because they must necessarily affect him in his trade” The older case of Reeve v Holgate (4) lays down the rule similarly. But it proceeds on the ground that the words themselves supply the “colloquium,” for “they appear to be spoke of his trade.” This readiness to make a presumption as regards language which might affect the credit of a trader of damage arising from words alleging insolvency, notwithstanding that the imputation is not in terms made about him in his capacity of trader, has not been extended to other callings.”

77.  I have further referred to the three cases mentioned in Lord Haldane’s speech at p.491[2]. None of them supports the proposition advocated by Mr. Leung. These authorities in my view merely confirm the existence of an exception to the general rule that the disparagement must be spoken of them in the way of their calling. The exception is where an accusation of his lack of financial credit or insolvency is made in a trader’s personal capacity and even not in his capacity as a trader, his credit in his business is nevertheless disparaged. In such cases, the trader can still sue for slander without proof of special damage as his credit as a trader is inevitably slandered. The exception is not that whenever a person is howsoever slandered and it so happens that he is a trader, the slander is actionable without proof of special damage even though the disparagement has nothing to do with his trade or business. In other words, the disparagement must relate to a trader’s credit in order to be actionable without proof of special damage.

78.  Since the alleged slander was made against Au in his office as secretary of the MC, I agree that the alleged slander is actionable per se without proof of special damage by virtue of section 23 of the DO.

Meaning of the Statement

79.  Au’s pleaded case is that the Statement meant and were understood to mean in the natural and ordinary meaning and/or by way of innuendo that (“Au’s Meanings”):

(1)  Au is an underhanded person who would take advantage of his position for ulterior motives in breach of trust.

(2)  Au had something to hide from other owners because he had obtained information on all tenderers but had deliberately withheld such information and denied the owners of the Building their right to know and/or the right to choose an appropriate tender candidate.

(3)  Au is therefore a person unsuited to his position as the Honourary Secretary for the IO and not trustworthy as a businessman.[3]

80.  Though Au also relies on innuendo meanings in his pleaded case, no extrinsic facts is pleaded as required by Order 82 rule 3(1), RHC. I further heard nothing about any innuendo from Au at trial. In the circumstances, I should disregard this plea of innuendo meanings as contended by Ms. Lan and should only focus on the natural and ordinary meaning of the Statement.

81.  Madam Ng does not accept Au’s Meanings in her Amended Defence. Yet, she has not put forward any alternative meaning of the Statement. I do not take the concession in the Order as an admission of Au’s Meanings on the part of Madam Ng and Au has still to prove their validity. Mr. Leung in his closing submissions also stated that what meaning should be imputed to the Statement remains one of the principal issues.

82.  There is an abundance of authority as to the approach which the court should adopt to ascertain the natural and ordinary meaning of words in a libel action. Both Mr. Leung and Ms. Lan referred me to the following general rules set out in the judgment of Le Pichon J (as then she was) in Hung Yuen Chan Robert v. Hong Kong Standard Newspapers Ltd & Ors. [1996] 4 HKC 519 at 526G-527:

“Whether the words complained of are defamatory is a question of construction and not of evidence. The first task that faces the court is to determine the natural and ordinary meaning of the words used. As stated by Lord Devlin in Rubber Improvement Limited v. Daily Telegraph Limited [1964] AC 234 at 277, when construing the words, the method of approach to be adopted must take into account the fact that "the layman's capacity for implication is much greater than the lawyer's".

A helpful statement of "the natural and ordinary meaning" of words is tobe found in Duncan and Neill on Defamation, 2nd Ed. at paras.4.04-4.05:

"The natural and ordinary meaning of words is the meaning in which the words would be reasonably understood by ordinary people using their general knowledge and commonsense. This meaning is determined in accordance with the following principles-

	(a)	The court decides the natural and ordinary meaning as a question of fact by attributing to the words the meaning which the court considers that they would convey to ordinary reasonable persons. It is not linked to the literal meaning of words but includes any inference or implication which would reasonably be drawn.
	(b)	The sense in which the words were intended is treated as irrelevant.
	(c)	The sense in which the words were in fact understood is treated as irrelevant though, it seems, regard will be had to the sort of people to whom the words were or were likely to have been published.
	(d)	The words are construed in their context.

.....

The law recognises that the rules of construction which are used for the interpretation of, for example, a contract or a will are not appropriate for determining the natural and ordinary meaning of words in an action for libel or slander. The correct method of approach to the question of construction was considered at length in the House of Lords in Rubber Improvement Ltd v Daily Telegraph Ltd,Lord Reid put the matter as follows:

'There isno doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs. ... What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning.'"

From the speeches of Lords Reid and Devlin in the Rubber Improvement case, the following guidelines can be extracted:

	"The hypothetical reasonable reader was not naive but not unduly suspicious. He could read between the lines. He could read in an implication more readily than a lawyer, and might indulge in a certain amount of loose thinking.
	But he had to be treated as being a man who was not avid for scandal and someone who did not, and should not, select one bad meaning where other, non-defamatory meanings were available."

See per Neill L.J. in Hartt v. Newspaper Publishing plc, Court of Appeal, (unreported) The Times, November 9, 1989.”

83.  In addition, as pointed out by Ms. Lan, where the plaintiff is relying on the natural and ordinary meaning of the words complained of, no evidence of their meaning is admissible or of the sense in which they were understood: Slim v. Daily Telegraph Ltd [1968] 2 Q.B. 157 per Diplock L.J. at p.173.

84.  In slander cases, in order to understand the words in their context, evidence, however, can be given of the surrounding words like, e.g. the form of the question to which the words were given in answer: Bookbinder v. Tebbitt [1989] 1 W.LR. 640 at 647 per Ralph Gibson L.J..

85.  Mr. Leung invited me to refer to the 10 June Letter and the 18 June Letter as they formed part of the context of the Statement. I disagree. These two letters were issued to Madam Ng and the members of the MC were given a copy according to the wordings of the letters. There is no evidence that they were distributed among the owners of the Building and besides those owners who had signed on these two letters, there is no evidence that other owners were aware of the contents of these two letters. In any event, Madam Ng did not suggest that she made the Statement in reply to these two letters and to an ordinary reasonable reader, these two letters should not be regarded as part of the context.

86.  Lastly, the following dictum of Stone J in Peregrine Investments Holdings Limited v. The Associated Press, unreported, HCA12862 of 1995, 9.7.1997 is apposite:

“… the exercise is fundament impressionistic. It is the broad effect that counts, so that “the court should be cautious of an over-elaborate analysis of the material in issue”.”

87.  With these principles in mind, I now embark on this meaning ascertainment exercise. The audiotape of the Statement was played at trial. I note, as recorded in the Minutes, that the Statement was made in immediate response to a complaint by an owner about the lateness of the disclosure of the identity of the contractors and their project fees. It was complained that the owners were as a result prevented from making an informed choice. I also take note of all the interjections made by the publishees in the course of the publication of the Statement.

88.  The meanings of the Statement are quite plain. The imputation, to the hypothetical reasonable reader is that Au had all along been unfit secretary of the MC and actually unsuited to the office, having failed to discharge his duties properly and conscientiously. Au’s dereliction of duty include his lack of contribution to the renovation project, his failure to disclose/circulate all the information about the contractors and their project fees to all the owners despite his attendance in all the meetings with the contractors and the notes already prepared by him and his failure to follow up the letters of the owners notwithstanding Madam Ng’s instructions. Au was thus largely responsible for the subject matter of the complaint of the owners.

89.  At the very outset, Madam Ng laid the blame on Ng for his lack of contribution to the renovation project (佢做乜嘢? 你問佢做過乜野啦! 講維修咁耐，佢做過D乜野?). The charge against Au was very clear – there was a serious dereliction of duty on the part of Au, aggravated by the fact that he was actually in a position to discharge his duty and instead he was more interested in sending to the owners many improper letters (唔三唔四嘅信).

90.  Madam Ng made no suggestion of Au’s motives behind his dereliction of his duties. Nor did she ever suggest any dishonesty or breach of trust on the part of Au at all. Madam Ng did not hint that Au had had an axe to grind in the renovation project. If Au had, Madam Ng would not have said that Au had done little about it. Nor did she ever suggest that Au had favoured any particular contractor over others for any personal gains. I do not find Madam Ng suggested that Au deliberately withheld information from the owners for a particular purpose at all. Madam Ng did not suggest, and I do not think, that Au could make any enrichment for himself by withholding information from the owners, either.

91.  I therefore cannot derive from the Statement any meaning to the effect that Au intended to deny the owners their right to know and/or the right to choose an appropriate contractor for the renovation project.

92.  I do not agree that by the Statement, Au’s integrity and trustworthiness as a businessman were challenged. It is true that Madam Ng said Au had wealth, power, face and everything but the overall impression is that she tried to highlight Au’s calibre so as to make his remiss all the more inexcusable. She made no reference to his business. I do not agree that Madam Ng deliberately disparaged Au as a businessman.

93.  I cannot accept that Ms. Lan’s contention that Madam Ng was merely asking Au to explain to the owners why he had not provided the information in his possession. This is certainly not the impression I got after listening to the tape-recording of the Statement. I agree with Mr. Leung that what Madam Ng did was to fire a series of rhetorical questions to bring Au to bay and not to invite him to give explanation.

94.  Ms. Lan submitted that Au’s claim should be dismissed if Au fails to prove the Statement conveys Au’s Meanings.

95.  In the first place, though I have rejected most of the imputations suggested by Au, I find that the Statement carries an imputation that Au was unsuited to his position as the secretary of the MC as pleaded. This imputation is undoubtedly defamatory of Au in that it would tend to lower Au in the estimation of right-thinking members of society generally and/or suggest Au’s incompetency and unsuitability in his office.

96.  Ms. Lan did not really dispute that the Statement conveys this imputation in her closing submissions. Her only retort was that the office was without remuneration and thus an office of trust. She relied on the old distinction between offices of profit and of honour or credit and submitted that the slander was not actionable per se without proof of special damage and without any imputation of dishonesty or want of integrity. I cannot accept this submission. As discussed above, section 23 of the DO has removed this distinction.

97.  I note that the basis of this imputation in the pleaded case is apparently different. Au said the alleged unsuitability was due to his breach of trust with ulterior motives and underhanded means whilst I find this imputation merely because of his alleged indefensible dereliction of duties. However, the sting is essentially the same, namely, Au was an unfit secretary of the MC, just that I do not accept that Madam Ng suggested that his dereliction of duties was actuated by any dishonest motives.

98.  In any event, I am not confined to ruling whether the Statement is capable of bearing Au’s Meanings and I am entitled to ruling which may cover any lesser defamatory meaning that might possibly conveyed by the Statement: Gatley, op. cit. at §36.6.

99.  In Slim v. Daily Telegraph Ltd., op. cit., Diplock L.J. made this clear:

“The only effect of an allegation in the statement of claim as to the natural and ordinary meaning of the words is that the judge must direct the jury that it is not open to them to award damages on the basis of that natural and ordinary meaning of the words is more injurious to the plaintiff’s reputation than the meaning alleged, although if they think that the words bear a meaning defamatory of the plaintiff which is either that alleged or is less injurious to the plaintiff’s reputation, they must assess damages on the basis of that natural and ordinary meaning of the words what they think is the right one. But where a judge is sitting alone to try a libel action without a jury, the only questions he has to ask himself are: “Is the natural and ordinary meaning of the words that which is alleged in the statement of claim?” and “if not, what, if any, less injurious defamatory meaning do they bear?””.

100.  This approach was adopted by Yuen, J (as she then was) in Eastern Express Publisher [1998] 2 HKC 596.[4]

101.  Having found that the Statement is defamatory of Au, I now turn to the defence of Madam Ng, namely, justification and fair comment.

Defence

Justification

102.  The pleaded case of Madam Ng in relation to this plea of justification is as follows:

“Further or alternatively, the said words are, in their natural and ordinary meaning, are true in substance and in fact.

Particulars

(a)  The management committee of the Incorporated Owners had duly informed all owners of the tender information all owners of the tender information by posting up a written summary at the lobby of Central Mansion setting out particulars of the contending contractors. The management committee had further placed tender documents of all contending contractors at the management office of the Central Building for owners’ perusal.

(b)  The Plaintiff, as the secretary of the Incorporated Owners, had attended meetings with all the tender candidates regarding renovation of Central Mansion and had obtained all relevant information about the tenders.

(c)  The Plaintiff had never reported to the management committee regarding the information of the tenders and had never compiled the said information for the management committee’s perusal.”[5]

103.  The general principles relating to the pleading requirements of a plea of justification or fair comment are neatly set out by Riberio PJ in Mak Shiu Tong v. Yue Kwok Ying & Anor. [2005] 1 HKLRD 33 at §§18-24. In gist, ever since Lucas-Box v. New Group Newspapers Ltd [1986] 1 WLR 147, the locus classicus in the law of defamation, a defendant must make it clear what meaning he is seeking to justify if he does not agree with the plaintiff’s pleaded meanings.

104.  In Hung Yuen Chan Robert v. Hong Kong Standard Newspapers Ltd & Ors., op. cit., the defence of justification was dismissed by Le Pichon J(as she then was) due to the lack of any pleaded defamatory meanings which the defendant sought to justify.

105.  Here, in the entire paragraph of the Amended Defence which contains the plea of justification, Madam Ng did not state what the natural and ordinary meaning of the Statements was and I can find no defamatory meaning which Madam Ng seeks to justify. The material facts pleaded as particulars of justification per se do not convey any defamatory meaning to a reasonable reader. The fact that Au had never reported to the MC regarding the information of the tenders and had never compiled the said information for the MC’s perusal is neutral unless Au was actually obliged to have done so pursuant to the express instructions of the MC despite the fact that Byad was engaged to provide such services to the MC.

106.  For the plea of justification, a defendant can only justify defamatory meaning(s). A plea of justification in respect of a non-defamatory meaning is both irrelevant and embarrassing: Broadcasting Corpn. of New Zealand v. Crush [1988] 2 NZLR 234, Television New Zealand Ltd (TVNZ) v. Haines [2006] 2 NZLR 433.

107.  In the present case, the deficiency of this plea is obvious and the absence of any pleaded meaning sought to be justified by Madam Ng is conspicuous and fatal. On these authorities, the only course available to me is to reject Madam Ng’s plea of justification and so I do.

108.  To salvage this plea, in her closing submissions, Ms. Lan first stated that Madam Ng’s contention was that the ordinary and natural meaning of the words complained of are:

(a)  As the secretary of the Corporation, Au has a duty to prepare written records for the Corporation, which should be made available to the owners if so required.

(b)  Au had seen the information regarding the contractors and had prepared something in writing about what projects each contractors had done, but Au did not release the same to the owners.

(c)  Au should be asked to explain to the owners why the information was not so provided to the owners.

109.  After the deficiency of the plea of justification came to the fore, Ms. Lan further put in a document entitled “Supplemental Written Note of Submissions” and sought to argue that the pleading point was purely technical, which was not raised by Au throughout the trial. Ms. Lan submitted that there was a direct and face meaning to be given to the words published (“佢就乜都冇做過“), i.e. Au has not done anything in relation to the owners’ request for information, which has always been the position of Madam Ng and she has had no other meanings ascribed to the Statement.

110.  I cannot allow Madam Ng to rely on any meanings of the Statement set out in any documents other than the pleadings of Madam Ng. To do so would be very much contrary to principle.

111.  For the sake of completeness, I should point out that Madam Ng has failed on the evidence to justify the defamatory imputation that I have found.

112.  Madam Ng has made two witness statements. She adopted their contents as part of her evidence. The first witness statement dated 6 July 2009 was filed while she acted in person. Its contents are of little relevance to her accusations in the Statement. Instead she made a number of other accusations against Au. It does not begin to justify the defamatory meaning of the Statement.

113.  Madam Ng made a supplemental witness statement with the assistance of her solicitors and I have referred to this document. There, she did not seek to justify her accusation that Au did not distribute the Notes. Madam Ng alleged that no photocopy of the tender documents and quotations of the contractors could be made pursuant to the requests of the contractors. She acknowledged that the MC had resolved that due to the bulkiness of the relevant documents, the owners would not be given a copy of such documents to save expenses. Her new complaint was that Au failed to explain to the owners about this and their right to inspect such documents placed at the management office of the Building. She stressed that Au was the secretary of the MC and he always forwarded to her the owners’ request for further information of the contractors. She said the owners did not approach her directly. In the circumstances, she believed Au was duty bound to explain to the owners the situation on behalf of the MC.

114.  This allegation is not pleaded in the Amended Defence at all. It was not put to Au in cross-examination too. I should reject this allegation on this basis alone. In addition, clearly the sting of the Statement is not that Au has failed to explain to the owners that the information had in fact been available for their inspection at the management office. Madam Ng clearly said in the Statement that Au failed to show all the information for the perusal of the owners. I do not find this new allegation borne out by the evidence in any event.

115.  The allegations in the Statement are bereft of factual basis. What the owners complained at the Meeting was the late disclosure of contractors’ information and their project fees. The Notes could not be expected to correctly contain this information and relied upon by the MC. For the contractors’ information, it was Madam Ng’s own evidence that the contractors’ information was contained in bulky documents submitted together with their tenders and the MC had resolved that the owners would not be given a copy of such documents. She even alleged that Byad did not allow them to distribute such documents among the owners. These documents were all along placed in the storeroom of the IO on the 10/F of the Building.

116.  For the project fee information, I cannot see how the Notes are of any relevance. The owners were already told on 23 April 2008 that there would be further interviews with the contractors and they would be asked to cut their project fees. In June 2008, the owners certainly wanted to know the updated project fees after negotiation (and not those original project fees that might be contained in the Notes) so that they could consider which contractor they should vote in favour of on 21 June 2008.

117.  More importantly, it is not disputed that Byad was commissioned to be the project consultant. It was the responsibility of Byad to prepare interview records and tender analysis for the IO. Au is just a lay person assuming an office of honour and could not be expected to undertake such a responsibility with the requisite expertise. There is no evidence at all that Au was specifically instructed to prepare interview records and submit the same to the MC for approval. Nor is there evidence that the MC had asked Au (but he refused) to disclose the Notes for their approval so that they could be distributed among the owners in good time before the Meeting. It is totally unfair to point an accusing finger at Au for his failure to do so.

118.  Madam Ng in cross-examination repeatedly said that she had not asked Au to distribute anything among the owners. She said she had not read the Notes and she had no idea of what they contained. There was inadequate time for her to approve their contents too. Thus she decided that they could not be distributed too. Then I have no clue as to how she could blame Au for his failure to distribute the Notes in the Statement. This is not even supported by her evidence.

119.  Only in cross-examination, Madam Ng for the first time explained why in the Statement she said that Au had done little to contribute to the renovation project. She explained that Au failed to write to the Building Authority in respect of the illegal structures on the roof and advertisement boards attaching to the Building. This unparticularised allegation had never been made before and was not even put to Au. I fail to understand how the allegation is relevant to the renovation project at all. On the undisputable evidence, Au attended all the meetings with the contractors and even offered the Notes for distribution. I cannot accept he has done nothing for the renovation project and the allegation is transparently baseless.

120.  I too reject Madam Ng’s allegation in the Statement that Au did not follow up the complaint letters of the owners despite her instructions. For the Letter, I am prepared to accept Madam Ng’s account that she did not receive the Letter from the management office of the Building. This is so despite Au’s evidence that he had talked with Madam Ng about the Letter subsequently. Au did not mention his relevant conversation with Madam Ng so in his witness statement despite his knowledge of Madam Ng’s denial of receipt of the Letter. He also sounded uncertain about the timing of such conversation in cross-examination.

121.  For the 10 June Letter and 18 June Letter, they were both addressed to Madam Ng. Madam Ng only agreed that she had received the latter but not the former. However, Madam Cheng’s unchallenged evidence is that she had inserted the former into the letter box of Madam Ng. It is common ground that there was an informal meeting of almost all of the members of the MC including Madam Ng and Au and Lam in a restaurant called 喜悅樓 in the morning of 12 June 2008 and there were discussions about the owners requests for information. It was more likely than not that Madam Ng had received the 10 June Letter and in any event was aware of the concern of the owners as reflected in the said letter on 12 June 2008.

122.  Madam Ng’s allegation that the owners did not approach her directly for information is again contradicted by her own evidence. There is furthermore no evidence that the MC or Madam Ng gave any instructions to Au to reply to those owners in any particular way. The allegation in the Statement that Madam Ng had passed the letters to Au and given him instructions to follow up is devoid of evidential basis. Madam Ng just stated that she expected Au to do so but Au could not be reasonably expected to respond to the owners on behalf of the MC without such instructions.

123.  Subsequently, according to Lam, Byad prepared a document setting out the short-listed contractors’ project fees and the document was posted in the lobby of the Building on or around 18 June 2008. A copy of the document was inserted into all the letter-boxes of the Building as well. The document was distributed among the owners at the Meeting as recorded by the Minutes. The document however was not included in the trial bundle and I have not seen it.

124.  Madam Ng also alleged that a notice was posted at the lobby of the Building notifying the owners that the background information of the contractors was available for inspection at the management office. The notice was signed by her and was undated. There was another unsigned copy dated 23 June 2008. Madam Ng contended that the notice was posted in mid-June before the Meeting in response to the owners’ request.

125.  Lam prepared the notice dated 23 June 2008 and faxed it to the management office of the Building for Madam Ng. He remembered that the notice was prepared as a result of some discussion after the Meeting and hence it was posted only after the Meeting. He further explained that the staff at the management office reported to him that the signed notice posted was actually without a date. He thought it might be due to a transmission error. He therefore faxed again a copy of the unsigned copy to the management office for Madam Ng to sign and post at the lobby. The date thereon, 23 June 2008, should be accurate.

126.  I accept Lam’s account. In fact it was supported by the minutes of the MC dated 15 July 2008 prepared by Lam albeit Madam Ng refused to sign on it. Whether it was issued before or after the Meeting is not in fact material. If anything, it only underscores the fact that Madam Ng was actually in a position to advise the owners the availability of the contractors’ information herself. There is no reason why she should shift the blame onto Au.

127.  Lastly, as regards the allegation in the Statement that Au wrote many improper letters, Madam Ng did not start to justify this in her pleadings and her witness statements. Only in cross-examination, she explained that by improper letters she meant those anonymous letters she from time to time found in her letter box. Some of them were signed by Au and some were not. She first said she did not read those letters and she did not know their contents too. Though she in re-examination explained that some of such letters were explained to her and some of them contained derogatory remarks about members of the MC, I am not at convinced that Au has ever issued any improper letters and I find Madam Ng’s allegation grossly unfair.

128.  By reasons of the foregoing, I do not find any truth in all the allegations in the Statement. Madam Ng has failed to justify the allegations with cogent evidence. I would have rejected her plea of justification even if it had been properly pleaded.

Fair Comment

129.  The pleaded case of the plea of fair comment is as follows:

“Further or alternatively, the said words if any so far as they bear the meaning that they were fair comment on matters of public interest.”[6]

130.  Madam Ng relies on the same set of particulars previously supplied for the plea of justification.

131.  This plea of fair comment also suffers an incurable deficiency in form. As Kwan JA stated in Lam Yi Lai v. Ip Kwok Chung, unreported, CACV 194/2009, 12.3.2010 at §25, “if a defence of fair comment is raised, the requirement of Order 82 rule 3(2) of the RHC must be compiled with, namely, that where the defendant alleges that in so far as the words complained of consist of statement of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, he must give particulars stating which of the words complained of he alleges are statement of facts and of the facts and matters he relies on in support of the allegation that the words are true.”

132.  The following dictum of Nicholls LJ in Control Risks Ltd v. New English Library Ltd [1990] 1 WLR 183 at p.189, cited with approval by by Riberio PJ in Mak Shiu Tong v. Yue Kwok Ying & Anor., opt. cit, at §24 is noteworthy:

“In my view, by parity of reasoning, when fair comment is pleaded the defendant must spell out, with sufficient precision to enable the plaintiff to know what case he has to meet, what is the comment which the defendant will seek to say attracts the fair comment defence.”

133.  Ms. Lan said little about this pleading defect in her closing submissions. She submitted that if the court finds that the words complained of are not statement of fact, the words must be construed as comments. However, without proper pleadings, I refuse to take such a course to differentiate facts and comments for Madam Ng. The plea of fair comment without being properly pleaded must fail.

134.  In any event, as a matter of fact, as noted above, no allegations in the Statement is borne out by evidence. I disagree with Ms. Lan that there is sufficient substratum of the true fact on which the comment is made. There is simply no factual basis for the allegations in the Statement and Madam Ng was unfair in making the allegations in the Statement. The defence of fair comment, even if properly pleaded, simply cannot get off the ground.

135.  Au in his Reply relies on malice to defeat this plea of fair comment. Strictly speaking I need not consider the issue of malice in this context. Suffice it to say I agree that Madam Ng did not have a genuine/honest belief in her allegation in the Statement that Au should have distributed the Notes but he did not. As noted above, she refused to let Au distribute the Notes on the very day before the Statement was published and in cross-examination she made it crystal clear that she did not mean that Au should have distributed the Notes.

136.  In the circumstances, Madam Ng could not have honest belief in her allegation and hence it was made with malice.

137.  In his Reply, Au further relies on the tone and manner of Madam Ng as and when the Statement was published. After listening to the audiotape and her vice voce evidence, in any event, I am not persuaded that I can infer malice from the tone and manner of Madam Ng when publishing the Statement.

138.  In conclusion, the plea of justification and the plea of fair comment are bad both in form and in substance. They fall to be rejected despite Ms. Lan’s skill and tenacity.

Remedies

General Damages

139.  Au seeks damages, including aggravated and exemplary damages. I first start with the general principles. In Cheung Ng Sheong Steven v. Eastweek Publisher Ltd [1995] 3 HKC 601 at p.613D, Nazareth VP accepted the submission of counsel for the plaintiff in relation to the issue of damages for libel:

“damages for libel must provide for several disparate elements, not only damage to esteem and reputation.  They also ‘must be sufficient to publicly and demonstratively and absolutely vindicate the plaintiff and to compensate for seriously injured feelings  …‘ not only caused by the original libel but all the subsequent aggravation thereof down to the verdict, which would restore the plaintiff’s ‘pride and confidence’… They must enable the plaintiff to convince a bystander the baselessness of the charge if ‘the libel driven underground, emerges from its lurking places at some future date’….”

140.  I also bear in mind that damages are compensatory in nature: Gatley, opt. cit, at §9.2 .

141.  Mr. Leung has helpfully cited to me on the issue of quantum a number of authorities including those cases tabulated in Duncan & Neill Defamation (3^rd Edition) at pp.455 to 470. I do not think it is necessary for me to go through those authorities in any detail for the purpose of this judgment. Suffice it to say I should have particular regard to the gravity of the slander, the range of its publication and the extent with which Madam Ng has persisted with the charge.

142.  Of course, to say someone is derelict in his duties in an office of honour is injurious. The Statement is, however, not seriously defamatory in my view. I have found that no dishonesty was ever imputed by the Statement. The damage caused to Au’s reputation by the Statement should however be confined to his reputation relating to this office or other similar offices only.

143.  It is worthy of note that less than a year after the Statement was published, Au actually had a landslide victory in the chairperson election whereby he replaced Madam Ng as the chairperson of the MC. Assuming that there had not been a substantial change of ownership of the Building since the Statement, the general perception of Au’s competency to work in the MC among the publishees did not appear to be materially affected by the Statement. Any injured feeling of Au resulting from the Statement should be substantially soothed by this appointment.

144.  As said above, I do not agree that Au was slandered as a businessman. The sting of the Statement has nothing to do with his business. I cannot see how his trade reputation would be affected by the Statement.

145.  I note that subsequent to the Meeting, Au on several occasions requested Madam Ng to retract the Statement. He made the requests by himself, by his solicitors and through the Wanchai District Councillor Ms. Lee Kwan Yee. Madam Ng snubbed Au on all such occasions. Au’s injured feeling should inevitably be intensified by such refusals. This is something that I should take into account in assessing general damages for the slander : Gatley, op. cit., §9.2.

146.  In Lee Man Kin v. Wang Mei Chun and Ors., op. cit., the plaintiff was slandered and the defamatory imputation was that he had knowingly broken the law and he had acted like a scoundrel or a triad member. Deputy Judge L. Chan having regard to the transient nature of the publication and the small audience (number unknown) and the fact that the defendant had been wrongfully provoked by the plaintiff assessed the general damages at HK$4,000.

147.  In the present case, the slander is arguably less injurious. Madam Ng made the Statement without any provocation by Au. The Statement was published to a big crowd and the baselessness of the allegations must be made clear to all of them. Having considered all the relevant matters in light of the general principles, my assessment of the general damages stands at HK$15,000.

Aggravated Damages

148.  As to the approach to be taken in the assessment of aggravated damages, I can do no better than cite the following passage at Gatley,opt. cit, at §9.14:

“Aggravated damages. The conduct of the defendant, his conduct of the case, and his state of mind are all matters which the claimant may rely on as aggravating the damages in so far as they bear on the injury to him.

“it is very well established that in cases where the damages are at large the jury (or the judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the  injury done to the plaintiff. There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff’s proper feeling of dignity and pride. These are matters which the jury can take into account in assessing the appropriate compensation.”

“The conduct of a defendant which may often be regarded as aggravating the injury to the feelings, so as to support a claim for ‘aggravated’ damages, includes a failure to make any or any sufficient apology and withdrawal, a repetition of the libel, conduct calculated to deter the claimant from proceeding; persistence, by way of a prolonged or hostile cross-examination of the claimant, or in turgid speeches to the jury, in a plea of justification which is bound to fail; the general conduct either of the preliminaries or of the trial itself in a manner calculated to attract wide publicity; and persecution of the plaintiff by other means.””

149.  Au in the Amended Statement of Claim relies on a number of matters to substantiate his claim for aggravated damages. In addition, Mr. Leung in his closing submissions asks me to take into account any malice found against Madam Ng, her unsubstantiated pleas of justification and fair comment, her repeated refusal to retract the Statement and apologise and the fact that Au was cross-examined for 3 consecutive days in a wounding and insulting manner.

150.  I agree that Madam Ng’s overall conduct is lamentable. She could not have an honest belief in the allegations made in the Statement. Prior to these proceedings she was given chances to retract the Statement, apologise and make amends. She was just too stubborn. At the trial, she sought to justify the Statement but failed miserably. She did not focus on the allegations in the Statement and make an effort to justify them in her witness statements. Nor did she do so in her oral testimony. Instead she saw fit to make causal accusations against Au in cross-examination. On this footing, I accept that Au is entitled to aggravated damages and I make an award of HK$10,000 under this head.

Exemplary Damages

151.  This claim can be dealt with briefly. As explained in the authorities cited to me by Mr. Leung, for the grant of an award of exemplary damages, it has to be shown that a defendant has to be proved to have been motivated by a cynical calculation that the publication was to his mercenary advantage.

152.  There is simply no evidence that Madam Ng would have any mercenary advantage in publishing the Statement. No such allegations has ever been made at all.

153.  Therefore, I reject Au’s claim for exemplary damages.

Injunction

154.  Au asks for an injunction to enjoin Madam Ng from repeating the slander or any similar slander.

155.  Ms. Lan argued that there is no real risk that the slander will be repeated as Madam Ng is now not even a member of the MC and the renovation works had long been completed. She then submitted that no injunction should be granted.

156.  Given the obvious hostility of Madam Ng against Au, her intransigent attitude about the Statement and her tendency to make accusations causally against Au, I find it appropriate to exercise my discretion to grant the injunction sought by Au.

Apology

157.  Mr. Leung relies on 2 recent authorities referred to in Duncan & Neill, op. cit., to support Au’s claim for an apology to be posted on the notice board of the Building. They are Lloyd v. Ratnatunga, unreported, 7 March 2007 and Mahfouz v. Brisard (no.3) [2006] EWHC 1191 (QB).

158.  As noted in Gatley, op. cit., at §9.1, there is no general power for the court to order a defendant to publish or caused to be published a correction or apology. The jurisdiction to order a suitable correction and apology stems from section 9(1)(b) of the Defamation Act 1996 as summary relief in the summary procedure.

159.  There is corresponding provision in our jurisdiction. I thus refuse to make an order for apology.

Order

160.  In the premises, I shall enter judgment against Madam Ng and order that:

(1)  Madam Ng do pay Au damages in the sum of HK$25,000 with interest at half judgment rate from the date of writ to the date of this order and thereafter full judgment rate until payment; and

(2)  Madam Ng be injuncted whether by herself, her servants or agents or otherwise howsoever from publishing or causing to be published the words in the Statement or similar words defamatory of Au.

161.  I further make an order nisi that costs should follow the event, i.e., Madam Ng to pay Au costs of the action, including any costs reserved, with certificate for counsel, to be taxed if not agreed.

Annexure

“Mr. Au is my secretary, [he] is the secretary of our Owners Incorporation. He should have obtained all the information for the owners for everyone to look at, but he had done absolutely nothing. What had he done? You ask him what had he done! [We had been] talking for so long about renovation, what had he done? These things should have been done by him, isn't itright? He should bear the bulk of the responsibilities. These responsibilities are not to be borne by me, the chairman. He is the secretary! He has to write, has to copy, has to do promotion! Do it for all owners to read! He wrote such a lot of wishy washy letters and he was so diligent about those. Why did he not do these? I am not attacking him. About these things, why not ask our secretary? Why not ask our secretary, why no such information is given to all of us? [But] wait till now to bring it up? Should have asked him. Isn’t it right? He has both money and power. [He] also has face. [He] has everything. We should ask him to get some things, what's his qualification? He was present in so many companies. He was never absent. He had also read all the information. He had also written them down fully. What each company does, this and that. He did it. He just did not distribute! But he distributed other letters didn’t he? Ask him to respond. He should respond to us, the owners. He is the secretary of the Owners Incorporation. He should help us to do a lot of things, right? But he did not do this for me. Now, the owners asked me for them, asked me for information. From where am I supposed to get the information for you all? Write letters to us... we also have a secretary, I have already followed up [by passing to] him. Whether he replied or not I have no idea. Whether he does it or not, I have no idea.”