BRIAN MONTGOMERY v. CHUNG CHEUK HUNG, HERO

HCA 1373/2015

[2018] HKCFI 2170

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1373 OF 2015

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DECISION

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INTRODUCTION

1.  By a summons dated 16 August 2018 (“the Leave Summons”), the Plaintiff applies for leave to appeal against the order of Deputy High Court Judge Saunders dated 2 August 2018 (“the Order”) dismissing:-

(1)   the Plaintiff’s appeal by a notice of appeal dated 23 March 2017 (“the Notice of Appeal”) against the order of Master S Kwang dated 10 March 2017 made on the Plaintiff’s summons dated 9 August 2016 (“the Summons”) whereby the Plaintiff sought leave to amend the Statement of Claim in the form of the draft amended statement of claim (“Draft ASoC”) attached to the Summons; and

(2)   the Plaintiff’s application to further amend the Statement of Claim in the form of the new draft amended statement of claim (“New Draft ASoC”) attached to the Notice of Appeal.

The Draft ASoC and New Draft ASoC are identical save the additional of paragraph 4B in the New Draft ASoC which, I understand, is intended to satisfy that part of Master S Kwang’s order requiring the Plaintiff to add a plea on “re-publication” which is not challenged by the Plaintiff in the Notice of Appeal.

2.  This is the court’s decision on the Leave summons.

LEAVE TO APPEAL IS NOT REQUIRED

3.  On behalf of the Defendant, Mr Chan takes a preliminary point that leave to appeal is, as matter of law, not required for the Plaintiff to pursue the intended appeal against the Order in the Court of Appeal.

4.  In order to understand this argument, it is first necessary to analyse the nature of the Order.  The basic facts relevant to the present appeal are set out in the Judge’s written decision dated 2 August 2018 (“the Decision”), and shall not be repeated here.

5.  In the original Statement of Claim dated 19 June 2015 (“SoC”), the Plaintiff alleged that the emails complained of were defamatory of him both in their natural and ordinary meaning (paragraph 7) and by way of an innuendo (paragraphs 8 to 10).  The innuendo plea in paragraphs 8 to 10 of the SoC was struck out pursuant to an order of Master S Kwang dated 13 July 2016, from which there was no appeal.  Accordingly, the only claim remaining on the Plaintiff’s pleadings was one based on the natural and ordinary meaning of the words complained of.

6.  On 9 August 2016, the Plaintiff applied to amend the Statement of Claim in the form of the Draft ASoC attached to the Summons. A new innuendo plea was raised in paragraphs 8 to 10B of the Draft ASoC, as follows:-

“8 The said 13th email also contained an innuendo in the following terms: ‘Furthermore, don’t think I don’t know about your problems in XXX. Otherwise XXXXX XXXX would not have replaced you. So don’t disguise yourself to be a popular and well received person. Hope you don’t make the same trouble in Met, and then you will have no more place to go in this world.’

9 By the aforesaid wording the defendant well knew and intended that:-

(i) the first occurrence of ‘XXX’ meant the APA (Hong Kong Academy for Performing Arts);

(ii) the next occurrence of ‘XXXX XXXX’ meant Nancy Yuen, a soprano and music educator who filled the plaintiff’s position as Head of Voice in the Music Department of APA after the plaintiff’s resignation; and

(iii) ‘Met’ meant the Metropolitan Opera of New York, U.S.A.

9A In the context of names as identified in paragraph 9 aforesaid, the defendant further knew and intended the innuendo text of paragraph 8 to mean:-

(iv) that the plaintiff was dismissed by APA for making trouble or other problems with his conduct or performance;

(v) that after dismissal the plaintiff was replaced by Nancy Yuen who filled his former office;

(vi) that the plaintiff was daily walking in disguise as a popular and well received person contrary to fact; and

(vii) that the plaintiff would be well advised to improve on his conduct and stop making further trouble, failing which he might mess up his job at the New York Metropolitan Opera and run into the end of the road for his professional singing career.

10 The aforesaid innuendo meaning would be known to or so understood by many persons engaged or interested in classical music, opera singing, orchestral instrument players, classical music presenters or critics, classical concert goers, and other persons otherwise concerned in classical music making, teaching or production (hereinafter referred to as ‘the classical music community’). Some of them were original direct recipients of the defendant’s email publication, such as Paul Li, Tao Ying, Shirley Fu, Derek Anthony, Jimmy Chan, Ella Kiang. Others received news of the libel through social conversation, music activities, or other media channels and were shown copies of the defendant’s email by other musicians, including but not limited to Sandra Wan, Sukie Sing, Emily Liu, Gustay Ng, Raymond Fu, Li Jing and Pancy Wong.

10A Of the aforesaid persons in the classical music community who directly or indirectly came to notice of the defendant’s emails, some of them know the plaintiff personally and accordingly they know that the plaintiff used to be the Head of Voice at APA, and that after his departure his position was filled by Nancy Yuen. Some of them further know that after his departure from the APA, the plaintiff has joined the New York Metropolitan Opera in recent years and regularly sings featured roles in annual seasons of the opera house.

10B Other persons in the said classical music community, though not knowing the plaintiff personally as a friend, know the plaintiff by name, by face, by profession or as some as artist on social acquaintance, by reason of their own classical music background, such as past and present music (in particular voice) students and graduates of the APA, past or present staff of the APA, musicians in orchestras, opera groups, choirs, universities and schools, operators or patrons of private music academies, music centres and music studios and through his many performances in Hong Kong over the past 11 years. Many persons in this category know about the plaintiff being the Head of Voice at APA, and after his departure the position was filled by Nancy Yuen. Some persons in this category further know about the plaintiff’s engagement by the New York Metropolitan Opera in recent years.”

7.  The Plaintiff’s proposed amendments to the SoC were objected to by the Defendant.  After a contested hearing on 10 March 2017, Master S Kwang made the following order:

“Subject to the Plaintiff [lodging] a revised Amended Statement of Claim within 21 days from the date hereof to add [a] plea on re-publication and to give particulars that the Plaintiff can give at present to specify persons who possess the special knowledge as raised under paragraph 10A of the draft Amended Statement of Claim attached [to] the Summons, leave be granted to the Plaintiff to amend the Statement of Claim as attached [to] the Summons, save and except paragraph 10B.”

8.  The Plaintiff was not satisfied with Master S Kwang’s order save and except that part which required him to add a plea on re-publication, and filed the Notice of Appeal on 23 March 2017.  Attached to the Notice of Appeal was the New Draft ASoC which, as earlier mentioned, was identical to the Draft ASoC save the addition of paragraph 4B, being the plea on re-publication, as follows:-

“4B By reason of specific discovery pursuant to court rules upon the Defence filed by the defendant herein on 25th June 2015, the defendant has disclosed a list of the persons to whom the email message under paragraph 4 above was published (hereinafter referred to as ‘the direct recipients’). The defendant’s disclosed list of direct recipients is annexed hereto as Scheduled 2. The plaintiff personally knows some of the direct recipients on the defendant’s list, such as Derek Anthony, Amy Chan, Jimmy Chan, Vincent Chung, Fiona Fong, Lovina Hui, Ella Kiang, John Luk, Lilian Mak, Tao Ying, Dennis Tsang, Mylthie Wong, Jane Liang and Shirley Yeung. The plaintiff further knows some other names on the list (such as Chan Kam Yee, Winsor Chan, Paul Li) which include singers, choir masters, music teachers and other accomplished performers in classical music circles with substantial network of pupils, followers or music oriented friends. By reason of the defendant’s crafty choice of recipients the plaintiff contends that it is reasonable to infer that the defendant intended or foresaw the republication of his email by the direct recipients to other persons in classical music circles, whether by disseminating copies thereof or reciting its contents in written or oral form which would escalate damage to the plaintiff’s reputation.”

9.  After a contested hearing, the Judge eventually made the following Order on 2 August 2018:-

“1 the said appeal be dismissed;

2 the Plaintiff’s application to further amend the Statement of Claim by the New Draft Amended Statement of Claim attached [to] the Notice of Appeal filed on 23^rd March, 2017 be dismissed”.

10.  It is clear that the nature and effect of the Order is to disallow the Plaintiff to amend the SoC to raise the new innuendo plea contained in paragraphs 8 to 10B of the Draft ASoC/New Draft ASoC save as permitted by the order of Master S Kwang dated 10 March 2017.  The question is whether the Plaintiff is required to obtain leave, either from the Court of First Instance or the Court of Appeal, to appeal against the Order.

11.  Under Order 59, rule 21(1)(a), of the Rules of the High Court, Cap 4A, leave to appeal is not required for “a judgment or order determining in a summary way the substantive rights of a party to an action”.

12.  Further, under Order 59, rule 21(2)(i), “an order refusing to allow an amendment of a pleading to introduce a new claim or defence or any other new issue” is treated as a judgment or order determining in a summary way the substantive rights of a party.

13.  It is trite that a true innuendo (which is what we are concerned with here) gives rise to a cause of action separate from that (if any) arising from the words in their ordinary and natural meaning (see Gatley on Libel and Slander, 12^th Ed, at paragraph 3.20).  In any event, it is clear, in my view, that the innuendo plea contained in paragraphs 8 to 10B of the Draft ASoC/New Draft ASoC introduces “new issues” within the meaning of Order 59, rule 21(2)(i).  Support for this view can be found in the Reasons for Decision given by Deputy High Court Judge Marlene Ng in Excel Concrete Limited v The Concrete Producers Association of Hong Kong Limited and Others, HCA 938/2011 (27 September 2013), at paragraph 15.

14.  In all, I consider that leave to appeal is not required in the present case.  It follows that I have no power to grant the relief sought by the Plaintiff in the Leave Summons.  It should, accordingly, be dismissed.

15.  It is strictly not necessary for me to consider whether leave to appeal against the Order should be granted if, contrary to my conclusion above, leave is required for the Plaintiff to take this matter to the Court of Appeal.  Nevertheless, in case I should be wrong in my conclusion that leave to appeal is not required and out of deference to counsel’s submissions, I shall consider the question of granting of leave briefly.

LEAVE TO APPEAL SHOULD NOT BE GRANTED IN ANY EVENT

16.  The test for deciding whether to grant leave to appeal under Section 14AA of the High Court Ordinance, Cap 4, is well established.  Leave to appeal shall not be granted unless (a) the appeal has a reasonable prospect of success, or (b) there is some other reason in the interest of justice why the appeal shall be heard.  For this purpose, a reasonable prospect of success involves the notion that the prospect is more than “fanciful”, without having to be “probable” (see SMSE v KL [2009] 4 HKLRD 125, at paragraph 17 per Le Pichon JA).

17.  Further, “even if the threshold test of reasonable prospect of success is satisfied, the court still retains a discretion whether to grant leave, although the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion.  The court may refuse leave to appeal in the interests of procedural economy and proportionality” (see Waddington Limited v Chan Chun Hoo Thomas and Others, HCMP 1327/2017 (18 October 2017), at paragraph 9 per Kwan JA (giving the judgment of the Court of Appeal)).

18.  A total 6 intended grounds of appeal are set out in the “Draft Grounds of Appeal” attached to the Leave Summons.  In the skeleton submissions of Mr Lai for the Plaintiff dated 14 September 2018 (“the Submissions”), it is said that the Draft Grounds of Appeal can be briefly summarized into 4 main points, which I shall also consider below (where appropriate).  In what follows, references to “Ground” are to the Draft Grounds of Appeal.

19.  In Ground 1, the Plaintiff alleges that “Defence counsel failed to carefully read and correctly understand the true effect of the Plaintiff’s pleadings and urged his defective understanding on the bench; the learned Judge failed to give the matter careful consideration and fell into the trap of inheriting the mistake of Defence counsel”.  In paragraphs 1.1 to 1.3 of the Draft Grounds of Appeal, the Plaintiff contends that the Judge failed to understand the relationship between paragraph 4B and paragraph 10, 10A and 10B of the New Draft ASoC, or the true effect of those paragraphs.

20.  In the Submission, at paragraph 2, Mr Lai further elaborates on this ground as follows:-

“It is simply a question of English language in the context of libel pleadings. There is no point in arguing against it for the sake [of] argument, as learned defence counsel appears to have done. The author of course knows what he is writing, and the English text is plain for anybody to understand.”

21.  Ground 1 is, in my view, unsustainable:-

(1)  The allegation that the Defendant’s counsel failed to carefully read or correctly understand the true effect of the Plaintiff’s pleadings, or made submissions to the court based on his defective understanding of the Plaintiff’s pleadings (assuming that such allegation can be made out) cannot logically lead to the conclusion the Judge also failed to correctly read or understand the true effect of the Plaintiff’s pleadings, or that the Judge did not reach a correct conclusion on whether leave should be granted to the Plaintiff to amend the SoC, whether in the form of the Draft ASoC or New Draft ASoC.

(2)  In so far as it is contended that the Judge failed to understand the relationship between, or the true effect of, paragraph 4B and paragraphs 10, 10A and 10B of the New Draft ASoC, this is not borne out on the face of the Decision.  I shall further deal with this contention under Grounds 2 and 3.

22.  In Ground 2, the Plaintiff contends that the Judge failed to take into account relevant matters into consideration, namely, the Plaintiff’s natural right to plead his cause of action subject to sufficient particulars being given under Order 82, rule 3, of the Rules of the High Court, which had in fact been complied with, and in Ground 3, the Plaintiff contends that the Judge failed to bear in mind the important distinction between the pleadings stage (where “the Plaintiff is not lightly to be shut out of justice unless his pleas are hopeless and wholly incapable of success”) and the full trial.  In the Submissions, Mr Lai complains that “[d]isallowance of the plaintiff’s proposed amendments in the present case appears to be a direct contravention of the practice explained in [paragraph 20/8/6 of Hong Kong Civil Procedure 2018], and no convincing legal principle or reasoning can be found to justify the departure.”

23.  This ground, in my view, goes to the heart of the intended appeal, namely, whether the Plaintiff has properly pleaded a true innuendo in the Draft ASoC/New Draft ASoC.  There are, I consider, two applicable principles to be borne in mind:-

(1)  Under Order 82, rule 3(1), of the Rules of the High Court –

“Where in an action for libel or slander the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he must give particulars of the facts and matters on which he relies in support of such sense.”

The requirement to fully particularise a plea of a true innuendo is mandatory, not optional.  Also, the particulars must identify (i) the person(s) to whom the words have been published who possessed “special knowledge” or knew of “extrinsic facts” which would lead such persons to understand the words or matters complained of in a defamatory sense other than their ordinary meaning, (ii) the relevant special knowledge or extrinsic facts relied upon, and (iii) publication (or re-publication, where relevant) to such persons.

(2)  Where a party is seeking the court’s indulgence to amend his pleadings, the proposed pleadings must be fully particularised. The following statement of principle by Fuad JA in Perak Pioneer Limited v Carrian Holdings Limited, CACV 59/1985 (13 June 1985) is apt –

“As regards particulars, in my view, it is no answer to an objection that a proposed amendment lacks particulars, to say that particulars can later be given. Of course, if a pleading lacks particulars, particulars can be asked for in the usual way and ordered by the Court if necessary, but where an amendment is applied for it would be an unusual case where the Court would consider it appropriate to allow an amendment to be made which lacks particularity, and might cause embarrassment.”

This principle has been applied on numerous occasions by the court, including Highfit Development Co Ltd (in Liquidation) v Koo Siu Ying, HCA 494/2015 (9 August 2017), at paragraph 30 per Anthony Chan J; Kong Fung RMB Remittance Exchange Ltd v Chan Kam Hoi trading as Bao Hang RMB Money Exchange, HCA 276/2016 (2 January 2018), at paragraph 21 per Au-Yeung J; and Hesson Development Ltd v Tang Ki Fan Tso with Tang Tin Kwai as Manager, HCA 5584/1998 (30 September 2003), at paragraph 10 per Chu J (as she then was).

24.  In the present case, in respect of the innuendo plea in paragraphs 10 to 10B of the Draft ASoC/New Draft ASoC, the Plaintiff has, I consider, failed to:-

(1)  give proper particulars of the “re-publication” to the indirect recipients referred to in paragraph 10 - it is not, I consider, sufficient to plead generally that “[o]thers received news of the libel through social conversation, music activities, or other media channels and were shown copies of the defendant’s email by other musicians …”;

(2)  identify those recipients referred to in paragraph 10A who are alleged to know the Plaintiff personally and possessed the relevant special knowledge or knew the relevant extrinsic facts - the pleas that “some of them know …” and “[s]ome of them further know …” are plainly insufficient; and

(3)  identify those other recipients referred to in paragraph 10B who are alleged not to know the Plaintiff personally but who nevertheless possessed the relevant special knowledge or knew the relevant extrinsic facts - again the pleas that “[m]any persons in this category know …” and “[s]ome persons in this category further know …” are obviously insufficient.

In all, I respectfully agree with the Judge’s conclusion that the Plaintiff has failed to properly plea a true innuendo in the Draft ASoC/New Draft ASoC.

25.  In Ground 4, the Plaintiff contends that the Judge erred in taking irrelevant matters into consideration, namely, that “the Defendant might have difficulty with the qualified privilege defence (paragraph 44 of Decision) or general conduct as to payment into court (paragraph 43)”.  This ground does not require separate consideration having regard to my view that the Plaintiff has failed to properly or sufficiently plead a true innuendo in the Draft ASoC/New Draft ASoC.

26.  In Grounds 5 and 6, the Plaintiff complains that the Judge relied on certain “dubious” Canadian cases in reaching his decision. There is also a complaint that the Judge cut short the submission of the Plaintiff’s counsel when he tried to address the court on the principle of stare decisis, and there was a miscarriage of justice.  In respect of the first point, I do not propose to examine the Canadian authorities (namely, Brown v Cole & Ors [1994] BCJ No 2356; Unterberger v Prospectors Airways Co Ltd [1962] OWN 212; and R E Brown, The Law of Defamation in Canada, Vol 2, at 800) in any detail because, for reasons stated above, I am satisfied that the Judge was correct to reject the Plaintiff’s innuendo plea.  I should add that the courts in Hong Kong often refer to and rely on authorities from different common law jurisdictions, and I wish to make it clear that I do not consider the Canadian cases mentioned above to be “dubious” as suggested by the Plaintiff, which I consider to be a wholly inappropriate comment.  In respect of the latter point, it is obviously one which should be treated with caution by a judge who did not preside over the original hearing.  The Plaintiff has not produced any material to support the allegation that his counsel were denied a proper opportunity to deal with the Canadian authorities, or make submissions on the principle of stare decisis which, in any event, is trite and hardly requires any elaboration.

27.  In all, I am not satisfied that the Plaintiff’s proposed appeal has a reasonable prospect of success, or there is any other reason in the interest of justice why the appeal shall be heard.

DISPOSITION

28.  For the foregoing reasons, the Leave Summons is dismissed, with costs to the Defendant.

29.  The parties are agreed that costs should be assessed summarily.  I have considered the Defendant’s Statement of Costs handed up by Mr Chan at the conclusion of the hearing.  I do not propose to examine the items of costs individually.  I agree with Mr Lai’s observation that counsel’s fee is plainly excessive.  The hearing was set down for 1 hour only, although it eventually lasted a bit longer than that.  The application is a simple and standard one.  The Defendant’s counsel appeared before both Master S Kwang and Deputy High Court Judge Saunders on essentially the same matter, and should be thoroughly familiar with the issues.  It would take, in my view, no more than a few hours for a hypothetical, reasonably competent, junior barrister to properly prepare for the hearing, including drafting the short written submissions of the Defendant.  Mr Lai, a very experienced barrister, asked the court to allow only the fee that he himself charged.  While I cannot help but take note of Mr Lai’s fee, as a matter of principle the fee paid by the other party should not be used as a yardstick when assessing counsel’s fee (see Ngan Wun Yeung v Lok Sin Tong Benevolent Society, Kowloon and Others [2000] 2 HKC 404, at 417). I therefore do not accept Mr Lai’s submission and will assess Mr Chan’s fee independently.  Solicitors’ costs are also excessive.  In particular, the time spent on communications with clients and counsel seems to be disproportional, and there should not be any need for the solicitors to do any “research” in the present case.  Overall, I would assess counsel’s fee at $60,000 and solicitors’ costs at $30,000, making a total of HK$90,000, which is already a very substantial amount of costs for resisting a simple application for leave to appeal.