CHAN CHOOK TIM v. WONG KWOK HUNG

HCA 16078/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 16078 OF 1999

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J U D G M E N T

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The plaintiff's claim

1. This is an action in defamation. The plaintiff and the defendant had both stood for election to the Sha Tin District Board in 1994. The defendant won by a narrow margin. At the material time in July 1999, the defendant was a member of the Sha Tin Provisional District Board ("the Board"), which was established on 1 July 1997 and his term of office was to expire on 31 December 1999, when the Board was to be replaced by the Sha Tin District Council ("the District Council"), after the first ordinary elections of the District Councils were held towards the end of that year. The defendant stood for election to the District Council but the plaintiff did not stand in the 1999 election. The plaintiff alleged that one of the reasons why he did not run for office was because of the alleged defamatory statement made by the defendant in the meeting of the Board held on 30 July 1999.

2. The Board meeting on 30 July 1999 was recorded on tape and a tape recording was supplied by the defendant's solicitors to the plaintiff's solicitors under cover of a letter dated 25 October 1999, so there ought to be no dispute of what was actually said by the defendant on that occasion. Pleadings are of great importance in an action in defamation, as the court should not stray outside what has been pleaded as the plaintiff's case and what has been pleaded in defence of the claim. Regrettably, the pleadings filed by both parties here leave much to be desired. It was left to the court to clarify with their counsel at the trial what really is in issue arising from the pleadings and what would not be in contention despite the pleadings.

3. According to the tape recording, and it was confirmed by counsel at the trial there is no dispute about this, the defendant had said the following words in Cantonese at the Board meeting: "陳作點先生舊年有劑嘢，已經守緊行為", pleaded in the Amended Statement of Claim as "the Second Defamatory Statement". As to the literal translation of these words in English, the plaintiff and the defendant have provided different translations, neither of which is a certified translation. I decided to use the literal translation as provided by the court interpreter and this is as follows: "Mr Chan Chook Tim last year had a matter, he had already been observing codes of behaviour."

4. The Board meeting was attended by members of the Board, the secretary to the Board, representatives of various government departments and interested bodies, 15 members of the public and 4 persons from the media. As was the practice with every Board meeting, the proceedings were recorded on tape and after the meeting, the secretary of the Board prepared draft minutes, which were circulated to all members of the Board and all representatives of government departments who were present. The draft minutes in Chinese were thus circulated on 13 September 1999 and the recipients were requested to send their comments and amendments within 10 days thereof, failing which the minutes would be deemed to have been passed.

5. In preparing the minutes in Chinese, the secretary had changed the colloquial style of the words spoken into a more literary style. Thus, the words complained of being the subject matter of this action appeared somewhat differently in paragraph 49 of the draft minutes as follows: "陳作點先生因去年犯事，現在仍須守行為". In the English version of the minutes prepared by the secretary, the relevant statement read as follows: "He further disclosed that Mr Chan Chok-tim was convicted last year and was still bound over to be of good behaviour". As confirmed by Mr Stephen Yam, who appeared for the plaintiff at the trial, notwithstanding the allegations in the plaintiff's pleading, it is now accepted by the plaintiff that the defendant did not utter the words as stated in the draft minutes. Counsel has also confirmed that no relief is now claimed by the plaintiff in respect of these words, referred to in the Amended Statement of Claim as "the First Defamatory Statement", whether in respect of the publication of these alleged words by the defendant at the meeting or in respect of the publication of these words in the draft minutes circulated by the secretary.

6. The defendant received a copy of the draft minutes in Chinese but did not pay much attention to it and did not notice the way in which the relevant spoken words had been altered in a literary style in the minutes.

7. On or about 17 September 1999, the plaintiff learned about what the defendant had said as stated in the draft minutes in Chinese and he obtained a copy of the draft. He instructed solicitors who sent a letter to the defendant dated 28 September 1999 alleging that the defendant had spoken the words as stated in the draft minutes "with apparent motive to destroy [the defendant's] political rivals, [the plaintiff] and his allies". The plaintiff's solicitors demanded the defendant to take the following action within the next 5 days: to withdraw the statement complained of from the minutes of the Board meeting; to procure the amended minutes to be circulated to all the recipients of the draft minutes with a letter of the defendant stating that his statement was malicious and false; to stop immediately to defame the plaintiff by making or causing to publish the statement complained of; and to publish a full page apology to the plaintiff in four newspapers as named by the plaintiff.

8. As the defendant did not reply to this letter, the plaintiff issued a writ against the defendant on 11 October 1999 with a Statement of Claim, in which it was alleged that the defendant had spoken and published the words as stated in the draft minutes circulated in September 1999. On the same day, the plaintiff issued an inter partes summons for an interlocutory injunction seeking an order that the defendant "do forthwith amend and delete and/or cause to amend and delete" the sentence complained of in the draft minutes and that the defendant be restrained until after trial of this action or further order from repeating the statement complained of or any similar statement.

9. The application came before Yeung J (as he then was) on 22 October 1999. No interlocutory injunction was granted in view of two undertakings given by the defendant: to forthwith procure the Board to "withdraw" the statement complained of as stated in the minutes circulated, and "not to make comment of the plaintiff's character which is untrue".

10. After the hearing, the defendant wrote to the chairman of the Board on 26 October 1999 stating that the secretary had incorrectly reported in the minutes what he had said regarding the plaintiff at the Board meeting and that the plaintiff had brought an action for defamation against him without listening to the tape recording. The defendant informed the chairman of his undertaking to the court to procure the Board to "rectify" the relevant words in the minutes and to "withdraw" the relevant words criticising the plaintiff's character. The defendant requested the chairman to ask the secretary to notify those who had attended the meeting of the words to be rectified.

11. The secretary wrote to the defendant on 8 December 1999 referring to his letter to the chairman dated 26 October 1999 to "amend" the minutes of the Board meeting and requesting the defendant to indicate specifically his proposal for amendment in the reply slip enclosed, to be returned to the secretariat before 13 December 1999 for the consideration of the Board members. The reply slip contained 3 alternative proposals for amendment: (1) to delete the words "他並透露陳作點先生因去年犯事，現在仍須守行為" ("He further disclosed that Mr Chan Chok-tim was convicted last year and was still bound over to be of good behaviour"); (2) to delete the words as in (1) and substitute them with "他並透露陳作點先生「舊年有劑嘢，已經守緊行為」" ("He further disclosed that Mr Chan Chook Tim 'last year had a matter, he had already been observing codes of behaviour'"); or (3) any other proposal for amendment as specified by the defendant.

12. The defendant replied to the secretary on 13 December 1999 stating inter alia that he had written to the chairman on 26 October 1999 pursuant to his undertaking to the court.

13. On 20 December 1999, the defendant returned the reply slip to the secretary stating that his proposal to amend the minutes was as per the 2nd alternative.

14. The secretary then wrote to all Board members on 21 December 1999 referring to the defendant's letter to the chairman to amend the minutes of the meeting on 30 July 1999, the action in defamation brought by the plaintiff, and the defendant's undertaking to the court to "rectify" the relevant words. The secretary enclosed the defendant's proposal to amend the minutes (as per the 2nd alternative) and requested Board members to return the enclosed reply slip by 30 December 1999, to indicate whether they would approve or oppose the proposed amendment.

15. On 7 January 2000, the secretary wrote to all Board members informing them that by 30 December 1999, 17 members had approved the proposed amendment and 15 members had opposed the same and the resolution for amending the minutes was passed by a majority. On the same day, the secretary notified the representatives of government departments to the Board of the amendment of the minutes.

16. On 28 February 2000, the plaintiff amended his Statement of Claim to plead the amendment of the minutes in December 1999 made pursuant to the defendant's request, that according to the minutes as amended, the defendant had said the words referred to as "the Second Defamatory Statement" at the meeting in July 1999 and that such words are defamatory. The only defamatory meaning of those words, as pleaded in paragraph 8 of the Amended Statement of Claim, is as follows:

"By the Second Defamatory Statement the Defendant meant and was understood to mean that the Plaintiff committed a criminal offence in the year of 1998 and a binding-over order had been imposed upon him by a Court of Laws in Hong Kong."

17. There is no claim for damages in the Amended Statement of Claim. I had sought to clarify with Mr Yam on the first day of the trial that it was indeed the plaintiff's position that he does not seek damages against the defendant, as leave to re-amend the Statement of Claim would be required if it were otherwise. Mr Yam informed me that the plaintiff would wish to claim damages but he did not make any application for amendment there and then. He left it to his closing submissions when he handed up to the court a document setting out the reliefs sought by the plaintiff and these are as follows:

(1) an injunction restraining the defendant by himself, his servants or agents or otherwise howsoever from repeating and publishing in writing verbal or otherwise "the Second Defamatory Statement" or any similar alleged false statement of fact as to the plaintiff's character or conduct;

(2) costs;

(3) further and other relief being publication by the defendant in a quarter page in 3 newspapers as named by the plaintiff declaring that "the Second Defamatory Statement" was malicious and false and offering an apology to the plaintiff.

The 1st relief in the above document corresponds to paragraph (2) in the prayer for relief in the Amended Statement of Claim. Mr Yam confirmed that the plaintiff no longer wishes to pursue paragraph (1) in the prayer for relief in the Amended Statement of Claim, which seeks an order that the defendant is to amend and delete "the Second Defamatory Statement" in the amended minutes of the meeting. As the 3rd relief in the above document is not pleaded in the Amended Statement of Claim, and the defendant had no prior notice of this relief sought by the plaintiff until the closing submissions, I gave directions for the parties to serve further submissions in writing regarding this relief by 4 December 2002. On 3 December 2002, the plaintiff's solicitors informed the court that the defendant has no further submissions and that the plaintiff withdraws the 3rd relief sought requiring the defendant to publish an apology.

18. Before I go to the defence pleaded, I ought to say something about the plaintiff's cause of action. I have stated earlier that this is an action in defamation, but is this an action in slander and libel or an action in slander only? In an action in libel, damage is presumed so the claim is actionable without proof of "special" damage. For an action in slander, the cause of action is not complete without proof of special damage unless the case comes within one of 4 exceptions (see Gatley on Libel and Slander, 9th edition, para. 3.6). In his written submissions, Mr Yam categorised this as an action in libel only without any elaboration. Mr Stephen Tang, who appeared for the defendant, has made no submission on the cause of action at all.

19. The alleged defamatory words came in three forms, in the words spoken by the defendant at the meeting, in the recording on tape of the proceedings of the meeting, and in the amended minutes of the proceedings of the meeting prepared by the secretary. Libel is committed when the defamatory matter is published in a "permanent" form. In the case of the tape recording, other than the defendant who has stated in his affirmation opposing the application for an interlocutory injunction that he had obtained a tape recording of the proceedings and had listened to it, there is no evidence before me of publication to any one else, such as to the secretary. The amended minutes of the meeting are different. These had been circulated by the secretary to the Board members and representatives of government departments. Although the publication in written form was done by the secretary, the defendant would be liable for the re-publication of his spoken words in written form as the secretary was under a legal or moral duty to repeat his words in the minutes of the meeting. For these reasons, I am of the view that leaving aside the question whether there is a good cause of action or not, this is an action in libel and slander.

The defence pleaded

20. There is no plea of justification or fair comment in the Amended Defence.

21. The main grounds of defence as pleaded would appear to be three. Firstly, there is a denial that "the Second Defamatory Statement" bore, or was understood to bear or was capable of bearing the meaning pleaded or any meaning defamatory of the plaintiff. Secondly, there is an averment that the alleged occasion of publication was an occasion of qualified privilege at common law. Thirdly, the defendant relies on section 25 of the Provisional District Boards Ordinance, Cap. 366, which had been repealed by the District Councils Ordinance, Cap. 547 with effect from 1 January 2000, to establish a defence of absolute or qualified privilege on the ground that the defendant was carrying out his duties as a member of the Board in a bona fide manner when he said the words complained of.

22. In the Amended Reply, it is averred that the Board meeting was not an occasion of qualified privilege and if it were, the defendant was acting in bad faith and with improper motive when he made "the Second Defamatory Statement" and so is not entitled to the protection of qualified privilege. It is also denied that the defendant is entitled to claim protection under the Provisional District Boards Ordinance.

23. As mentioned earlier, it is now accepted by the defendant that he had said the words referred to as "the Second Defamatory Statement", notwithstanding that there seems to be a denial of this in the Amended Defence. A denial of publication of "the Second Defamatory Statement" is just as ill founded.

24. It has also been pleaded in the Amended Defence that the plaintiff has authorised, assented to or acquiesced in the publication of the amended minutes which contained "the Second Defamatory Statement", in that the amendment of the minutes was made to comply with an undertaking embodied in an order by consent in October 1999. This defence would seem to me to be wholly untenable, as it is clear from the evidence that the plaintiff was not involved in any way as to how the minutes should be amended and there is no need to deal with this any further.

25. Lastly, it is pleaded in the Amended Defence that if the defendant is found to have published "the Second Defamatory Statement" in respect of the publication and circulation of the amended minutes, "such a cause of action had not yet arisen at the time of this Writ herein".

26. Before I consider the three main grounds of defence as summarised in paragraph 21 above, it is pertinent that I should deal with two matters first, namely, whether there is a good cause of action in libel and a good cause of action in slander on the plaintiff's pleading. It is regrettable that neither counsel has addressed me on these matters at all.

Is there a good cause of action in libel

27. As I have analysed above, the cause of action in libel in respect of "the Second Defamatory Statement" (the plaintiff has abandoned its claim in respect of "the First Defamatory Statement" as mentioned earlier) is based on the re-publication of the defendant's words in the amended minutes. The action taken by the defendant to move an amendment of the minutes and the amendment of the minutes took place after the writ was issued on 11 October 1999.

28. When the plaintiff amended his Statement of Claim to plead the additional cause of action based on the publication of the amended minutes, this was done without leave pursuant to Order 20 rule 3(1) of the Rules of the High Court. Under Order 20 rule 4(1), it is provided that within 14 days after the service on a party of a pleading amended under rule 3(1), that party may apply to the Court to disallow the amendment. The defendant did not take out any such application, notwithstanding it has been pleaded in the Amended Defence that the cause of action added by the amendment had not yet arisen when the writ was issued.

29. An amendment duly made, with or without leave, takes effect not from the date when the amendment is made, but from the date of the original document which it amends. This is the reason why a plaintiff may not amend his writ by adding a cause of action which has accrued to him since the issue of the writ (see Hong Kong Civil Procedure 2002, Vol. 1, paras. 20/4/2 and 20/8/2). In this case, as the amendment of the Statement of Claim took effect from 11 October 1999 when the writ was issued, the plaintiff's cause of action in libel based on the amended minutes had not yet accrued at that time. Accordingly, the plaintiff does not have a cause of action in libel in these proceedings.

Is there a good cause of action in slander

30. That leaves the plaintiff with a cause of action in slander based on the words spoken by the defendant at the Board meeting. As mentioned earlier, slander is not actionable per se without proof of special damage, unless the case comes within one of 4 recognised exceptions. No special damage has been pleaded in the Amended Statement of Claim.

31. Of the 4 exceptions, the only one that may be of relevance here is where the words impute a crime for which the plaintiff can be made to suffer physically by way of punishment. The exact offence need not be specified, words involving a general charge of criminality will suffice, provided they impute some offence "for which the plaintiff can be made to suffer corporally by way of punishment", such as imprisonment (see Gatley, op. cit., paras. 4.3 and 4.7). Whilst Mr Yam has mentioned in his written submission that words used to impute a criminal offence are actionable per se, he has not dealt with this fully.

32. The authorities on this topic were considered by Bray J in Hellwig v. Mitchell [1910] 1 K.B. 609 at 612 to 614 and I set out the relevant extracts as follows:

"In the absence of special damage slander is only actionable in certain cases, one of which is where the words impute the commission of a criminal offence punishable by imprisonment. ...

It was contended, however, that the rule does not require that the criminal offence should be one punishable by imprisonment, and that it is sufficient if the offence be one which renders the offender liable to summary arrest and detention. This is not a question of principle, but of judge-made law, and therefore I must look at the authorities to see how far they support this contention. The first case to which I will refer is Webb v. Beavan 11 QBD 609, in which the court had to consider the question whether it is necessary to allege that the words impute an indictable offence, and it was held that it was not necessary. Pollock B. in giving judgment said: 'The expression 'indictable offence' seems to have crept into the text-books, but I think the passages in Comyns' Digest are conclusive to shew that words which impute any criminal offence are actionable per se. The distinction seems a natural one, that words imputing that the plaintiff has rendered himself liable to the mere infliction of a fine are not slanderous, but that it is slanderous to say that he has done something for which he can be made to suffer corporally.' Those last words are, undoubtedly, somewhat ambiguous and may be wide enough to include an offence which, though not punishable by imprisonment, renders the offender liable to arrest. The judgment of Lopez J in Webb v. Beavan does not carry the matter any further. The next case is Michael v. Spiers & Pond, Ltd, 25 TLR 740, where it was contended by counsel for the plaintiff that 'the joint effect of s 12 of the Licensing Act, 1872, and s 5 of the Summary Jurisdiction Act, 1879, was to make drunkenness on licensed premises an offence which exposed the person committing it to punishment corporally. The plaintiff under s 1 of the Licensing Act, 1902, was liable to be dealt with corporally on the spot, and therefore this was a slander which was actionable per se.' It appears, therefore, that the argument which has been raised here was also raised in Michael v. Spiers & Pond, Ltd, but A.T. Lawrence J apparently did not find it necessary to decide the point, for he held that there was no imputation of an offence within s 1 of the Licensing Act, 1902, but he used these words: 'As, therefore, there is no imputation of an indictable offence or of an offence for which a person can be made to suffer corporally by way of punishment, I think special damage is necessary.' That is a dictum that the corporal suffering must be by way of punishment. I cannot find in the books a trace of authority for saying that the words imputing that the plaintiff has done an act for which he may be arrested, but which is only punishable by a fine, are actionable without proof of special damage, or that a mere liability to arrest is sufficient to make the crime one for which the offender can be said to suffer corporally. The arrest in that case is not a punishment; it is merely a method of preventing the continuing of the offence." (emphasis supplied)

The position was summed up by Atkinson J in Gray v. Jones [1939] 1 All ER 798 at 802 in these words:

"... the innuendo must be that the plaintiff has committed a crime for which she might be sent, or has been sent, to prison - a crime of such a nature that the law does punish by imprisonment - and it has been repeatedly held, and it is now beyond discussion, that, if words merely impute an offence for which the offender can only be fined, then the slander is not actionable without proof of special damage."

33. In the present case, the words spoken are alleged to bear the ordinary and natural meaning that "the plaintiff committed a criminal offence in the year of 1998 and a binding-over order had been imposed upon him by a Court of Laws in Hong Kong." Assuming that the words bore or were capable of bearing the meaning as alleged, does this case come within the exception so that the words spoken are actionable per se without proof of special damage? Here we have an allegation of criminality but a mere liability to arrest and detention is not corporal punishment to come within the exception. The allegation that a binding-over order had been imposed by the court does not connote any corporal suffering by way of punishment.

34. For the above reasons, I rule that the plaintiff does not have a good cause of action in slander.

35. That would have been sufficient to dispose of this action, but since I have heard evidence and submissions on the three main grounds of defence as summarised in paragraph 21 above, it is appropriate that I should deal with them.

If the words complained of bore or were capable of bearing the meaning pleaded

36. In determining the ordinary and natural meaning of the words complained of, the court must take into account the fact that "the layman's capacity for implication is much greater than the lawyer's" (Rubber Improvement Ltd v. Daily Telegraph Ltd [1964] AC 234 at 277, per Lord Devlin). As Lord Reid has said in the same case at 258,

"There is no 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."

37. There is also a helpful summary of the relevant principles in textbooks and authorities given by Le Pichon J (as she then was) in Hung Yuen Chan Robert v. Hongkong Standard Newspapers Ltd [1996] 4 HKC 519 at 526G to 527I. In short, 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 common sense. This is not linked to the literal meaning of words but includes any inference or implication which would reasonably be drawn. The hypothetical reasonable reader is not na?ve but not unduly suspicious or avid for scandal. He could read between the lines and read in an implication more readily than a lawyer, and might indulge in a certain amount of loose thinking.

38. In this case, I rule that the words complained of are capable of bearing the ordinary and natural meaning as alleged. It is the broad impression conveyed by the words that has to be considered. The layman is unlikely to be aware of the legal niceties that exist where a person is prosecuted for a criminal offence and where a person is formally cautioned by a law enforcement authority without bringing a prosecution, or of the distinction between a binding-over order imposed by the court and the situation where terms are imposed on a person formally cautioned by a law enforcement authority. I am of the view that an ordinary listener at the Board meeting and a reasonable reader of the amended minutes might well have formed an impression that the plaintiff had committed a criminal offence in 1998 and as a result the court had imposed a binding-over order. These words are defamatory of the plaintiff as he had not committed any criminal offence in 1998, nor was he subject to a binding-over order made by the court.

If the occasion was one of qualified privilege at common law

39. I turn to the next ground of defence, which is one of qualified privilege at common law. It is asserted by the defendant that "the Second Defamatory Statement" spoken by him at the Board meeting was published in an occasion of qualified privilege in that he had an interest or a duty, legal, social or moral, to make it to the other Board members and those present at the meeting, and the persons to whom it was published had a corresponding interest or duty to receive it. For the plaintiff, it was submitted that the defamatory statement was not fairly warranted by the occasion and was irrelevant to any matter that the Board was considering or discussing. As that statement was not pertinent to the discharge of the defendant's duty or the exercise of his right as a Board member or the safeguarding of the interest that creates the privilege, it was contended by Mr Yam that the occasion of publication was not one of qualified privilege at common law.

40. In determining whether an occasion is regarded as privileged, the court has to have regard to all the circumstances associated with the origin and publication of the defamatory matter (Reynolds v. Times Newspapers Ltd [1999] 3 WLR 1010 at 1017). In the present case, it would also be appropriate to have regard to the functions and business of the Board, the interests of the public in the proceedings of the Board, and the duty of Board members towards the public.

41. I turn to consider when, why, and in what circumstances the defamatory statement was spoken by the defendant. As there is a full transcript of the proceedings of the Board meeting, there is really no dispute about the following matters.

42. About 2 weeks before the Board meeting, the defendant had written to the chairman on 15 July 1999 to put forward an item for discussion at the meeting relating to the extension works of the water catchment behind Kam Ying Court in Ma On Shan, Shatin. The works had resulted in a lot of sand and mud being dumped on the hill slope behind Kam Ying Court. The defendant had earlier found a large area of cracks on the shotcreted surface of the slope. He expressed concern of the residents that with the rainy season, landslide might occur and affect the safety of residents and pedestrians. He raised several questions in his letter on the use of designated dumping areas and which of the government departments should be responsible.

43. At the meeting, the safety of the stockpile left on the slope behind Kam Ying Court was brought up for discussion. The defendant spoke and queried the appropriateness of the preventive measures adopted by the Water Supplies Department and the contractor and referred to some photographs he had taken on 13 July 1999 showing cracks on the whole surface of the slope, which was unlike the photographs taken by Maunsell Consultants Asia Limited ("the consultants") on 15 June 1999 showing only a small portion of cracked shotcreted surface at the corner of the stockpile. The defendant said he suspected the slope had been repaired to make it appear that the damage was not so serious and expressed dissatisfaction with the consultants for "concealing intentionally" the seriousness of the damage to the slope.

44. A representative from the Civil Engineering Department made a response on action taken for the protection of the slope. He was followed by a representative of the Water Supplies Department giving information on the design and stability of the stockpile, and stating that the safety of the stockpile was "constantly monitored" by the department and the consultants and that the chance of slope failure affecting residents was "extremely remote".

45. The next speaker to reply to the defendant was a representative of the consultants, Mr Bonny Huang. He stated that the contractor had shotcreted the sloping face of the stockpile for protection. He considered this to be effective as there was no loss of topsoil or water seepage. Up to July 1999, cracks were found in a "small portion" of the shotcreted surface only. In this connection, Mr Huang referred to a site inspection made by another Board member, Mr Tung Wai Ming and by the plaintiff, who was the chairman of the Mutual Assistance Committee of Block K, Kam Ying Court, on 16 July 1999 and said that Mr Tung and the plaintiff "could prove that only some of the shotcrete was damaged".

46. The defendant disagreed with Mr Huang on the extent on the cracks found on the shotcreted surface. He again referred to his photographs taken in July 1999 and stated that the cracks were repaired by the contractor in two days as the contractor knew that the Board was going to discuss the safety of the slope. He then mentioned there was an article in a Chinese newspaper on the safety of the slope, which had contained an interview of him and an assistant professor of civil engineering in a tertiary institute after they had inspected the slope. However, someone had deleted from the article the interview given by him and the professor and replaced it with Mr Tung's photograph and had then posted the same on the notice board of Kam Ying Court. The defendant said he was "very dissatisfied" with such behaviour. He said that the consultants were "making use of Mr Tung and [the plaintiff] to cover up the seriousness of the issue". He then said the defamatory statement complained of relating to the plaintiff. Lastly, he queried why such a large quantity of mud was required to be left as stockpile at the back slope of Kam Ying Court, and proposed to convene a residents' meeting and invite representatives of the departments concerned, the contractor and the consultants to attend, to clarify the doubts and worries of the residents.

47. After this speech from the defendant, further speeches on the safety of the stockpile were made by Mr Huang (who denied that he had made use of Mr Tung as alleged by the defendant and maintained that Mr Tung could prove that there was only a small portion of cracked shotcrete as shown in the photographs), the chairman (who said an investigation should be carried out in response to the defendant's complaint to ensure slope safety), Mr Tung (who said he had conducted a site inspection with the plaintiff and had taken photographs, that he had put the article the defendant referred to with his own photographs on the notice board for the information of residents, and denied that he had collaborated with the consultants) and another Board member (who expressed concern about safety of the stockpile).

48. A note was made in the minutes that after the meeting, a site inspection was carried out on 5 August 1999 by representatives of the Water Supplies Department, the contractor and the consultants together with the defendant and "all parties were satisfied with the condition of the repaired surface".

49. The safety of the stockpile on the back slope of Kam Ying Court was obviously a matter of interest and concern to the members of the Board, who had a duty to advise the government on matters affecting the welfare of residents in the district. What was contended by Mr Yam is that there was no legal, social or moral duty to publish "the Second Defamatory Statement" which alleged that the plaintiff had committed a criminal offence and the court had imposed a binding-over order on him, as the disparagement of the plaintiff's conduct and reputation was unconnected with and irrelevant to the subject matter under discussion, which was slope safety.

50. In deciding whether the communication was unnecessarily made so as to take the occasion outside the protection of qualified privilege, I do not think one should apply an unduly restrictive test. The test is not whether the statement complained of is "strictly necessary" or "logically relevant" (see Gatley, op. cit., para. 14.60). As Lord Diplock had said in Horrocks v. Lowe [1975] AC 135 at 151,

"The exception is where what is published incorporates defamatory matter that is not really necessary to the fulfilment of the particular duty or the protection of the particular interest upon which the privilege is founded. Logically it might be said that such irrelevant matter falls outside the privilege altogether. But if this were so it would involve the application by the court of an objective test of relevance to every part of the defamatory matter published on the privileged occasion; whereas, as everyone knows, ordinary human beings vary in their ability to distinguish that which is logically relevant from that which is not and few, apart from lawyers, have had any training which qualifies them to do so. So the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory matter which upon logical analysis could be shown to be irrelevant to the fulfilment of the duty or the protection of the right upon which the privilege was founded."

51. The question of relevance is one of judgment and degree in each instance. Having considered the entire context in which the defamatory statement was made, I am of the view that excessive though it might be, it was not wholly extraneous and irrelevant to the subject matter under discussion. I hold that the occasion is one protected by qualified privilege at common law, which brings me to the next contention of the plaintiff that the defendant had made the statement with malice, in that he knew the statement was untrue or had some indirect or improper motive in making it.

If there was evidence of malice

52. The onus is on the plaintiff to establish that the defendant was not using the occasion honestly for the purpose for which the law gave it to him. If it is established that the dominant motive of the defendant in making the statement is an improper one, he loses the protection of qualified privilege and "express malice" is the term of art for describing such a motive. In this case, it is alleged by the plaintiff that the dominant motive for the defendant in making the defamatory statement was to undermine the plaintiff, who had stood against the defendant in the last District Board election in the same constituency in 1994 and might be regarded as a potential rival of the defendant in the coming election in 1999. It is further alleged that the improper motive could be inferred from the absence of honest belief in that the defendant knew that the statement was untrue or that he was reckless when he published the statement, without caring whether it was true or not.

53. Before I consider the evidence on this, it is pertinent to remind myself of how the law was reviewed by Lord Diplock in Horrocks v. Lowe, supra. at 150 to 151:

"... indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true... In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might case doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be 'honest', that is, a positive belief that the conclusions they have reached are true. The law demands no more." (at 150C to E)

"Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. The motives with which human beings act are mixed. They find it difficult to hate the sin but love the sinner. Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that 'express malice' can properly be found." (at 150H to 151B)

As stated by Lord Diplock,

"this burden of affirmative proof is not one that is lightly satisfied" (at 151D).

54. I turn to consider first whether there is evidence upon which it might be inferred that the defendant knew that the statement was untrue or was indifferent whether it was true or not. In my judgment, the evidence points to the contrary.

55. The defendant has produced the letters he had received in 1995 from the Attorney General's chambers ("the AGC"), the Boundary and Election Commission ("the BEC"), the Independent Commission against Corruption ("the ICAC") and the Government House in response to his enquiries, to explain the grounds on which he had made the defamatory statement. The matter arose in this way. Between September 1994 and January 1995, the defendant had made a total of 15 complaints to the BEC, alleging inter alia that the plaintiff had published false statements about himself in his election materials in the 1994 District Board elections. The BEC referred the defendant's complaints to the ICAC for investigation, as the allegations fell within the provisions of the Corrupt and Illegal Practices Ordinance, Cap. 288.

56. In January 1995, the ICAC found that only 3 of the allegations were substantiated in that the plaintiff had published three false statements of fact in relation to himself. In May 1995, the defendant was informed by the ICAC that no prosecution was to be brought against the plaintiff and that the plaintiff had been formally cautioned by a senior ICAC officer for breaches of section 16(1A) of Cap. 288. The defendant wrote to the AGC to enquire, among other things, what conditions or restrictions in respect of elections would be imposed on a person who had received a caution or warning and received a reply in June 1995 that only the body administering the same and the person receiving it would know the exact terms under which the caution or warning was administered. In September 1995, the defendant received a reply from the Private Secretary of the Government House who explained that cautions are administered to persons who admit to have contravened particular provisions of the law in situations where it is considered that in the public interest the case is most appropriately dealt with by way of caution. The author of the letter stated that the details of an ICAC investigation which does not result in prosecution are "not made public" and that recipients of any communication on such investigation "should bear in mind this principle".

57. The defendant gave evidence that it was on the basis of the above letters that he had made the defamatory statement. He admitted there was an inaccuracy in that he had said "last year" when he mentioned that the plaintiff "had a matter", whereas it should have been " the last election", which was some 5 years ago. I accept the defendant's evidence that he had a positive belief in the truth of what he said, notwithstanding that he was loose with his words and had made a careless and imprudent statement which had misled at least some of the listeners into thinking that the plaintiff had been dealt with in court for having contravened the law.

58. As to the motive with which the statement was made, I am also unable to draw the inference on the evidence that the defendant's dominant motive was to undermine the plaintiff who might be a potential rival in an imminent election. To establish express malice, it is not sufficient if it is made out that one of the motives of the defendant in making the defamatory statement was to seize the opportunity to expose and undermine the plaintiff. It seems to me that the defendant was genuinely anxious to refute what Mr Huang had said about the extent of cracks on the shotcreted surface of the stockpile as found by the plaintiff and Mr Tung and that was why the defendant brought in a matter that he had regarded as tending to cast doubt on the plaintiff's integrity. His process of reasoning might well be dubious or swayed by prejudice, but I do not think I can properly infer that his motive in making the statement had nothing to do with his desire to refute Mr Huang's statement or that he was not genuinely concerned with addressing the Board on the issue of slope safety.

59. For the above reasons, I hold that the defence of qualified privilege at common law is available to the defendant.

Qualified privilege conferred by statute

60. The defendant also seeks to rely on sections 20 and 25 of the old Provisional District Boards Ordinance to claim privilege.

61. These provisions read as follows:

"20. Functions of a Board

The functions of a Board are -

(a) to advise the Government -

(i) on matters affecting the well-being of the people in the District;

(ii) on the provision and use of public facilities and services within the District;

(iii) on the adequacy and priorities of Government programmes for the District;

(iv) on the use of public funds allocated to the District for local public works and communities activities; and

(b) where funds are made available for the purpose, to undertake -

(i) environmental improvements within the District; and

(ii) the promotion of recreational and cultural activities within the District."

"25. Protection of members

No matter or thing done, by any member of a Board, or of a committee appointed under section 21(1)(c), bona fide for the purpose of carrying into effect the provisions of this Ordinance or of any other enactment conferring functions on a Board, shall subject such member personally to any action, liability, claim or demand whatsoever."

62. As mentioned earlier, the Provisional District Boards Ordinance was repealed by the District Councils Ordinance, which was enacted on 11 March 1999. It is provided in section 88 that the Provisional District Boards Ordinance is repealed and that this provision comes into operation on 1 January 2000. It does not seem to me that the repeal of the Provisional District Boards Ordinance would have affected any right of the defendant to rely on the provision conferring protection on a Board member, as the right to rely on the protection had accrued before the repeal became operative.

63. It was submitted on behalf of the defendant that the effect of these provisions was to confer a statutory qualified privilege on the defendant, if it is established that his publication of the defamatory statement was bona fide for the purpose of carrying into effect one of the functions of the Board in section 20, which was to advise the Government on matters affecting the well-being of the people in the district.

64. In this instance, the defamatory statement was made by the defendant in one of his speeches at the Board meeting. He was speaking on the safety of the stockpile on a slope left by a contractor engaged by the Water Supplies Department, a matter of undoubted local concern. In so doing, he was discharging the function of the Board to advise the Government on matters affecting the well-being of the people in the district of Shatin. I have dealt with the allegations of improper motives and absence of honest belief in the truth of the statement in considering the availability of the defence of qualified privilege at common law. The defendant might have been swayed by prejudice against the plaintiff and might even have welcomed the convenient opportunity of exposing the plaintiff. However, when the statement is viewed in the entire context of what the defendant had said on that occasion and the speeches of the other speakers to whom the defendant was responding, I am firmly of the view that the defendant had been acting in a bona fide manner in discharging his functions as a Board member when he made the defamatory statement.

65. I rule that the defence under section 25 of the Provisional District Boards Ordinance is available to the defendant as well.

Conclusion

66. For the above reasons, the plaintiff's action must fail. I dismiss the plaintiff's action against the defendant and make an order nisi that the plaintiff should pay the defendant's costs of this action.