MOK KAM KWAI v. LAM MO FAT

HCA 1868/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1868 OF 2010

________________

__________________

J U D G M E N T

__________________

Introduction

1. This is a libel action which the plaintiff commenced in December 2010.

2. During a period of several weeks from July to August 2010, several banners were displayed at conspicuous spots of Pai Tau Village, Shatin.

3. The plaintiff was expressly named in some of these banners, and he complains that they were defamatory of his reputation. Four banners are involved in this action (“the offending banners”).

4. The claim is brought against the defendant, but he denies the claim, contending principally that:

(a)  the defendant was not the one who displayed the offending banners, nor the author of their contents, and hence should not be responsible for their publication;

(b)  in any event, when read in context, the offending banners were understood by an ordinary reader as mere expressions of anger and frustration, and would not be taken seriously by him;

(c)  in any event, the offending banners:

(1)  are honest/fair comments;

(2)  further or alternatively, published on an occasion of qualified privilege;

(3)  further or alternatively, a responsible public dissemination of information.

The Offending Banners

5. All of the offending banners measured several metres long and about one metre high.

6. Because Pai Tau Village faces several buildings, banners displayed can be seen by the public (both vehicle passengers or pedestrians) en route to/from Shatin railway station and:

(1)  Leisure and Cultural Services Department headquarters building;

(2)  “HomeSquare” shopping complex;

(3)  Shatin Government Offices building.

(collectively “the said buildings”) It can be inferred there must be quite some pedestrian and vehicular traffic in the vicinity. There is however no evidence as to the relative traffic volume proportion between the local residents and the “non‑locals”.

(a) 1^st Banner

7. The contents of the 1^st banner relied upon are:

「莫錦貴本屬大圍村原居民 沙田鄉事委員會主席 衹懂得為新鴻基辦事」

8. The pleaded defamatory meaning is:

(a)  the plaintiff did not act in the interest of the village or the Shatin Rural Committee (“the said rural committee”) or Shatin;

(b)  the plaintiff did not fulfill his duties properly or at all as the chairman of the said rural committee by failing to act in the interest of, and failing to represent properly or at all, the village, the said rural committee or Shatin;

(c)  the plaintiff acted in the interest of Sun Hung Kai, contrary to the interest of the village or Shatin.

(b) 2^nd Banner

9. The contents of the 2^nd banner pleaded by the plaintiff are:

「莫錦貴本是沙田鄉事委員會主席只懂得為新鴻基辦事」

10. The pleaded defamatory meaning is:

(a)  the plaintiff did not act in the interest of the said rural committee or Shatin;

(b)  the plaintiff did not fulfill his duties properly or at all as the chairman of the said rural committee by failing to act in the interest of, and failing to represent properly or at all, the village, the said rural committee or Shatin;

(c)  the plaintiff acted in the interest of Sun Hung Kai, contrary to the interest of Shatin.

(c) 3^rd Banner

11. The relevant parts of the 3^rd banner read:

「庸官 … 鄉事委員會主席 … 區議員 … 莫錦貴」

12. The pleaded defamatory meaning is:

(a)  the plaintiff was incompetent;

(b)  the plaintiff was an incompetent official in that he was the chairman of the said rural committee and a member of the Shatin District Council (“the said district council”).

(d) 4^th Banner

13. This states:

「庸官莫錦貴鄉事委員會主席出賣鄉民」

14. The pleaded defamatory meaning is:

(1)  the plaintiff was incompetent;

(2)  the plaintiff was an incompetent official in that he was the chairman of the said rural committee;

(3)  the plaintiff did not properly or at all discharge his duties to represent the villagers;

(4)  the plaintiff acted against the villagers’ interest so as to obtain benefit for himself.

Background

15. Pai Tau Village is located near Shatin railway station and the said buildings; separating them is Pai Tau Street.

16. As early as in the 1990’s, a proposal was made to build a footbridge to help lessen the heavy traffic (pedestrian and vehicular) between Shatin railway station and the said buildings.

17. The Pai Tau Village residents did not welcome the proposal, and, over the years, have put forth their views over the matter. This aspect forms a substantial part of the respective parties’ cross‑examination of the witnesses.

18. Since 2004, the plaintiff has been the chairman of the said rural committee.  By virtue of this office, he also becomes a member of the said district council.

19. The defendant is an indigenous inhabitant and has been Pai Tau Village’s village representative since 1990.

20. As will be elaborated below, the hanging up of the banners (including the offending banners) at Pai Tau Village has its origin in the said footbridge proposal.  The matter was discussed by the said rural committee as well as the said district council.  The plaintiff was involved by virtue of his offices.  The Traffic and Transport Committee of the said district council ultimately approved it in early May 2010 (“the said district council’s approval”).  The plaintiff accepts that he would have voted in its favour if he had not left the meeting room.

Publication of the Offending Banners

21. Initially the defendant denies he had anything to do with the hanging up of the offending banners (or indeed any of the banners).  In February 2014 the plaintiff filed a supplemental witness statement, alleging that the defendant was seen single‑handedly hanging up the 1^st banner, and exhibiting the matching photographs.  In a responding witness statement (11 February 2014), the defendant admits the act, but still maintains that he was not involved in the publication of the rest of the offending banners.

22. The defendant’s witness statement discloses (among other things):

(a)  in mid‑May 2010, the villagers of Pai Tau Village learnt of the said district council’s approval (including the plaintiff’s vote in support of it);

(b)  a villagers’ meeting was held on 16 May 2010 to discuss the ways to fight back (or resist) (“the May 2010 meeting”);

(c)  at the May 2010 meeting, the majority unanimously proposed to hang up banners at the village to tell the whole story about the incident and to criticize it.

23. Whether in his pleading (including the further and better particulars) or his witness statements, the defendant has not made clear:

(1)  the degree of his participation in the said meeting;

(2)  his precise involvement in relation to the banners (especially the offending banners).

24. However, the cross‑examination (and his in‑court clarification of his description of the May 2010 meeting in his witness statement) shows that:

(a)  about 100 villagers (including him) attended the said meeting;

(b)  resolutions were passed by majority vote by a show of hands after discussion;

(c)  the defendant was entitled to, and did, vote, and he voted in support of the hanging up of the banners.

25. The defendant is equally evasive about whether he also approved of the contents of the banners (especially the offending banners).  He denies knowledge about them before trial.  When cross‑examined about whether he agreed with them, he said he neither supported nor disagreed with them.  When asked to clarify whether the contents of the banners had been discussed or agreed upon at the May 2010 meeting, he wavered back and forth, finally settling into an answer that phrases like “庸官”, or “蛇鼠一窩” had been mentioned at the May 2010 meeting, but did not state clearly if there was proper discussion of, let alone agreement on, the banners’ contents.

26. Insofar as it may be contended that the defendant’s testimony is that the banners’ contents have not been fully discussed or agreed upon, I find it to be inherently implausible, and thus incredible.  In so concluding I have taken into account the matters set out in para 17, 19, 21, 22 and 24 above.  At a meeting held for the stated purpose (para 22(b) above), and when the methods discussed and agreed upon is in effect to take the matter “to the street”, it is inherently implausible for the participants to vote “blind” (that is, without knowing the banners’ contents (or at least the general tenor of the same)).

27. One matter also relevant to this aspect is the defendant’s admitted role in Pai Tau Village; in this connection it is noted:

(1)  as stated above (para 19 above), he has been the village representative;

(2)  he has been the chosen spokesman of his village at the time.  He was featured in many of the related media reports or interviews;

(3)  his pleading to the effect that he “shared and reflected (as was his statutory duty) the views of the indigenous inhabitants” (para 26, amended defence);

(4)  previously in 2004 and 2006, he was similarly chosen as the spokesman and organized and led the villagers in the hanging of banners.

As such, it is implausible any discussion and/or resolution of major issues affecting Pai Tau Village (such as that raised at the May 2010 meeting) did not involve the defendant (or only had his passive involvement).

28. By reason of the above, I find as facts that:

(a)  the hanging of the offending banners (and the other banners) was;

(b)  the contents of the offending banners (and the other banners), were known and agreed to by those present at the May 2010 meeting (including the defendant).

29. The relevant law has been summed up in Gatley on Libel and Slander (2013) 12^th Ed, para 6.10:

“. . . at common law liability extends to any person who participated in, secured or authorized the publication . . . ”

30. By virtue of the above, I conclude that the offending banners were published by the defendant.  Whether the defendant was the one who physically hung up the offending banners is therefore irrelevant.

Imputations of the Offending Banners

31. The relevant law is set out by way of quotations from some of my earlier judgments:

“The legal principles relevant to this aspect are undisputed:

(a) words in an article are normally construed according to their natural and ordinary meaning: Gatley on Libel and Slander (2008) 11^th Ed, para 3.16;

(b) although the same words in an article may bear different meanings to different readers (because of their temperament, knowledge and/or experience and so on), for the purpose of defamation litigation, the words have only a single meaning: Next Magazine Publishing Ltd and Others v Oriental Daily Publisher Ltd (2000) 3 HKCFAR 160, para 26; Oriental Daily Publisher Ltd and Another v Ming Pao Holdings Ltd and Another FACV 1/2012 (26 September 2012), para 48 to 50;

(c) in order to ascertain that single meaning, the court puts itself in the position of a fictitious ordinary reader: Oriental Press Group Ltd and Another v Fevaworks Solutions Ltd HCA 2140/2008 (25 February 2011), para 15;

(d)  it is necessary to take into account the context of the words in an article.  It follows that the context and circumstances of those words must be taken into consideration, and the article must be taken as a whole: Gatley, para 3.29 and 3.30; . . . ”

Para 9, Wong Wai Kay v Hong Kong Economic Journal Company Ltd and Another [2013] 3 HKLRD 27 (emphasis supplied).

(The references to the earlier edition of Gatley in the above quote correspond to the following paragraphs of the current edition (12^th Ed): 3.17, 3.30 and 3.31)

“14. The legal principles for determining the meaning of the words are trite and have been succinctly set out in numerous authorities and practitioners’ textbooks such as Gatley on Libel and Slander (2008) 11^th Ed.

15. For ease of reference, those principles, summarized in Oriental Daily Publisher Ltd and Another v Ming Pao Holdings Ltd and Others, HCA 607/2008 (28 May 2010), are quoted below:

‘23. Gatley on Libel and Slander (2008) 11^th Ed recognised that there may be difficulty in producing a comprehensive definition of the meaning of “defamatory”; the following has been offered as (at least) a working definition of its meaning: a defamatory imputation is one to the claimant’s discredit, or which tends to lower him in the estimation of others or causes him to be shunned or avoided; or exposes him to hatred or ridicule: Gatley, para 2.1, text to nn 4 to 7.

24. The court puts itself in the position of an ordinary reader when construing the article in question; that is, the interpretation of allegedly defamatory words is determined by how an “ordinary reader” reasonably understands those words: Gatley, para 3.13 and 3.24.

25. The fictitious “ordinary reader” is described as one with the following temperament:

“He is a sort of half way house between the unusually suspicious and the unusually naive. He is essentially fair‑minded and reasonable and does not jump to hostile conclusions on flimsy evidence; but he may be guilty of a certain amount of loose thinking and does not read a sensational article with cautious and critical care . . . and his capacity for implication or drawing inferences is greater than the lawyer’s . . . The layman reads in an implication much more freely, and . . . is especially prone to do so when it is derogatory” (Gatley, para 3.25).

See also Charleston and Another v News Group Newspapers Ltd and Another [1995] 2 AC 65, 71F‑72F (see also para 52 below).

. . .

27. There are two stages to the process of determining whether words are defamatory: first to decide what they mean, and then to decide whether that meaning is defamatory: Gatley, para 2.1. The purpose of the exercise is to ascertain the “sting” of the defamation (if any).’”

Para 14 to 15, Oriental Press Group Ltd And Others v Fevaworks Solutions Ltd T/A Alive! Media and Communications and Another, HCA 597/2009 (25 February 2011) (emphasis supplied).

(The corresponding references in the current edition of Gatley for the above quote are paragraphs 2.1, 3.14, 3.25 and 3.26)

32. The imputations of the offending banners have been set out above.  The amended defence avers that:

“. . . a reasonable bystander who read [the offending banners], together with the additional banners which were hung … , would appreciate them to be expressions of anger, frustration and exasperation . . . and would not have attached to [the offending banners] any meaning defamatory of the Plaintiff . . . ” (para 30 thereof) (emphasis supplied).

33. On the threshold of seriousness to properly ground a defamation claim, Gatley says:

“. . . the imputation must meet the necessary level of seriousness. . . . Such threshold was required for two reasons. First, it is in accordance with the true interpretation of Lord Atkin’s speech in Sim v Stretch in which his lordship made clear that exhibitions of bad manners or discourtesy were not to be placed on the same level as attacks on character. Secondly, such a threshold is required by the development of the law recognised in Jameel (Youssef) v Dow Jones & Co Inc as arising from the passing of the Human Rights Act 1998” (para 2.4).

34. Factors for determining if the threshold has been met have also been given in Gatley (such as the nature and inherent gravity of the allegation, whether the publication was oral or written, or the transience of the publication).

35. The offending banners were not spontaneous verbal outbursts.  Quite on the contrary, they were the product of a collective decision reached after deliberation in a meeting; even on the defendant’s own evasive account some of the wordings were discussed.  The language used was excessive and sensational. The banners (including the offending banners) appeared to be products of an organized publicity campaign.  Taking all of the above into account, the “sting” of the imputations is that the plaintiff:

(1)  was incompetent;

(2)  was unfit to hold his office;

(3)  has “sold out” (or betrayed) those he represented and acted in the interest of a party whose interests conflicted with those which the plaintiff represented.

36. The defendant argues that regard should be had of:

(a)  the other banners hung by the villagers of Pai Tau Village;

(b)  the banners hung on behalf of the plaintiff.

37. I agree with the plaintiff the defendant’s invitation to read the offending banners together with the other banners does not advance the defendant’s case.

38. In relation to the other banners displayed by Pai Tau Village, some of them actually made serious derogatory remarks such as:

(a)  「官商勾結 恃勢凌人」;

(b)  「官商結盟 欺壓村民」;

(c)  「利益輸送財團叫公開」。

If anything, they can only provoke more loose thinking, and prompt broad impressions or inferences of improper/corrupt conduct.

39. Similarly, I do not find it helpful to the defendant’s case (at least so far as liability is concerned) to consider the banners hung on behalf of the plaintiff (and/or the others, such as the said rural committee (“the plaintiff’s banners”)). The law does not impose on the plaintiff (as a claimant in a defamation litigation) to “mitigate” the defamation (although this may occur in practice): Gatley, para 33.51 and 33.53.  Less still does the law require the plaintiff to absolve the defendant’s liability on the latter’s behalf. More importantly, it should be obvious to an ordinary reader the plaintiff’s banners were hung by “the other camp”; in other words, he would know that the plaintiff’s banners did not represent the views of those who published the offending banners.

Honest/Fair Comments

40. To succeed, the defendant has to establish (among other things) the defamatory statements:

(1)  are recognizable as comments, as distinct from an imputation of fact: Gatley, para 12.7 to 12.14;

(2)  are based on facts which are true or protected by privilege: Gatley, para 12.15 to 12.23;

(3)  indicate (whether explicitly or implicitly) the facts on which they were based: Gatley, para 12.24.

Because of the matters set out below, I conclude that this defence should fail.

41. First, a proper defence of “honest comment” has to specify the defamatory meaning which a defendant seeks to defend as comment: Gatley para 27.17, text to n 93.  In this action, the amended defence expressly pleads that the comments were:

(a)  the plaintiff “only knew to work for Sun Hung Kai”;

(b)  the plaintiff was an “incompetent officer”.

(para 35 thereof).  There is no plea specifying the defamatory meaning, contrary to what is required by law.  It is doubtful if this line of defence is properly open to the defendant as a matter of pleading.

42. I shall nonetheless continue the discussion of this line of defence assuming (in the defendant’s favour) that the above averments are also to be treated as the specified defamatory meanings.

43. But a statement concerning the plainitff’s mental state (“only [the plaintiff] knew . . . ”) is an imputation of fact (or at least capable of being such, as distinct from being a comment).  An allegation that a person “work[s] for” another is similar.  That being the case, the above averment does not satisfy the pleading requirement set out in para 40(1) above.

44. The amended defence does not aver that the above are based on facts either (para 40(2) above): Gatley, para 27.19, text to n 100; it merely pleads that those were “fair comments honestly made by the Defendant and/or other villagers of Pai Tau Village” (para 35 thereof).

45. A substantial part of the defendant’s cross‑examination of the plaintiff was directed at criticizing him for:

(1)  not keeping his promise to the Pai Tau Village residents about conveying their views and acting in accordance with their wish;

(2)  not conveying:

(a)  their views when the plaintiff attended meetings and/or dealt with the authorities, and

(b)  information about the progress of the proposed construction of the footbridge back to them.

The defence purports to base the above criticisms mainly on the meeting minutes during the period from February 2004 to May 2010.  However, a proper reading of the documents rather shows that the criticisms are unfounded; they show that:

(a)  the proposed footbridge design has been changed (the inference from the changes made to the proposal was that they were brought about by the villagers’ views having been conveyed to, and discussed at, the meetings);

(b)  the villagers’ views (and counter‑proposals) were varied, and changed over time (and different from those contended for by the defendant (sub‑para (1) and (2) above)).

46. Further, assuming (again in the defendant’s favour) that they actually establish the facts set out above, those facts cannot properly ground the comments set out in para 41(a) or (b) above (let alone the defamatory imputations set out in para 35 above).

47. It is common ground that “malice” (in the sense of the lack of an honestly held belief in the comment) will also defeat this line of defence: Gatley, para 12.36 (citing in support thereof Tse Wai Chun v Cheng [2000] HKCFA 86).  The burden to prove malice lies with the plaintiff: Gatley, para 12.36, text to n 193. Merely because the defendant regurgitated the opinions of others does not of itself establish malice: Gatley, para 12.37.

48. The above, however, does not mean that malice (in the sense of the lack of a genuinely held opinion) can never be inferred based on the above; indeed, in appropriate circumstances such an inference may be proper.  This action is one of such instances:

(1)  despite the amended defence pleading that the defendant shared the views of the villagers who published the offending banners, the defendant did not testify to such effect.  In cross‑examination, he impliedly disowned such a stance by testifying to the effect that he neither supported nor disagreed with the offending banners;

(2)  there was no factual basis to support the comments set out in para 41(a) or (b) above (or the defamatory imputations set out in para 35 above);

(3)  further to sub‑para (2) above, when the defendant testified, he could not justify those comments (or defamatory imputations) in a sensible way;

(4)  in view of sub‑para (2) and (3), I find that the defendant could not have genuinely believed in the contents of the offending banners (even if they were in fact comments).

Accordingly, insofar as it may be necessary to do so, I conclude that “malice” has been established.

Qualified Privilege

49. The defendant admitted during final submissions that this is the main plank of his defence (without expressly abandoning the other lines of defence).  I understand the defendant is here attempting to put forth a line of defence based on the traditional form of qualified privilege (see also below).

50. The most helpful authority for this line of defence is the court of appeal’s decision in Blakeney‑Williams v Cathay Pacific Airways Ltd [2011] 1 HKLRD 901 (where the defence of responsible public dissemination of information was also raised, and determined).  The facts of the Cathay Pacific decision are entirely different, and therefore will not be repeated unless necessary to understand the legal principles propounded there.

51. The court of appeal has this to say in the Cathay Pacific decision about qualified privilege:

“In its traditional formulation, the defence of qualified privilege depends on reciprocity of duty and interest . . . ” (citing in support Adam v Ward [1917] AC 309, 334) (emphasis supplied) (para 127 thereof);

“The categories of relationship covered by this reciprocity of duty and interest tended to be limited . . . to publication ‘to one person only or to a limited group of people’, primarily to communications of a private nature ‘commonly arising out of the necessities of some existing relationship between the maker of the statement and the recipient’ . . . ” (emphasis supplied) (para 128 thereof);

“. . . But:

. . . the public as a whole was not generally regarded as having a relevant interest or duty. The media defendant (or other defendant who caused his statement to be published in that way) was in no different position . . .

A privilege for publication to the world at large was, in English law, the exception rather than the rule, even if the subject matter was politics or public affairs. . . . ” (emphasis supplied) (para 128 thereof);

“It is . . . not enough that the publication was of interest to the public, for there is a distinction between publication in the public interest and publication of material in which the public is interested; if it is the latter alone, privilege is unlikely to attach . . . ” (para 129 thereof).

52. Having concluded that the defendant in the Cathay Pacific decision could not avail itself of the traditional form qualified privilege, the court of appeal went on to discuss the extended form qualified privilege (laid down in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 and Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359, and became part of Hong Kong law via the Court of Final Appeal’s decision in Oriental Daily Publisher Ltd and Another v Ming Pao Holdings Ltd and Others (2012) 15 HKCFAR 299).

53. The court of appeal’s above decision is naturally binding on this court (the defendant has sensibly not contended otherwise; for example, that it was obiter dictum).

54. The defendant relies heavily on a number of Canadian authorities for the proposition that:

“The courts have repeatedly extended reciprocity of interest between publishers and information receivers to situations whereby a person, in discharge of his/her public duty, made statements to the general public for the common convenience and welfare of society” (emphasis supplied) (para 33, defendant’s opening submissions).

Those authorities include:

(a)  Stopforth v Goyer 97 DLR (3d) 369, 372;

(b)  Parlett v Robinson 30 DLR (4th) 247, 248, 252;

(c)  Atkinson v McMillan 2009 YKSC 81.

Reliance is also placed on the English court of appeal’s decision in Alexander v Arts Council of Wales [2001] EMLR 27.

55. The passages in the above authorities which the defendant submits can advance this part of his case include:

“[in relation to defamatory statements uttered by an elected minister] . . . the electorate, as represented by the media, has a real and bona fide interest in the demotion of a senior civil servant for an alleged dereliction of duty. . . . The appellant [minister] had a corresponding public duty and interest in satisfying that interest of the electorate . . . ” (p 372, the Stopforth decision);

“. . . the defendant [an elected member of parliament] is the official spokesperson for his party . . . When he failed to persuade the Minister to order [a public inquiry into allegations of abuse of inmate labour], if he held an honest belief that there had been impropriety with the Correctional Service . . . then it was the duty of the defendant to ventilate his concerns . . .

In addition to the duty of the defendant to declare his concern in this matter, it appears to me that the electorate in Canada have an interest in knowing whether the administration of the Correctional Service is being properly conducted by the officials . . . ” (p 256, the Parlett decision);

“It was formerly settled law that if the publication was to the public generally . . . the reciprocity [statement made in discharge of public or private duty and corresponding interest to receive it] between the maker and receiver of the statement, essential in proving qualified privilege, would be lost, and so to the privilege . . .

However, a more recent line of cases, beginning with [the Stopforth decision] recognized that dissemination to the world at large of a matter truly in the public interest should nevertheless attract a qualified privilege defence” (para 39, the Atkinson decision).

56. Whatever may be the merits of the approach adopted in those authorities, because of the distinction maintained in the Cathay Pacific decision between the traditional form qualified privilege and the Reynoldsdefence (see above) (which, as stated above, is binding on this court), it is incumbent upon this court to follow the said distinction.  The same can be said of the other authorities relied on, such as the Australian decision of Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 571.

57. In short, I find that the traditional form qualified privilege cannot avail the defendant.

58. First, I do not consider the defendant to have a duty to publish matters concerning the proposed footbridge to the general public (that is, a readership beyond the local villagers/residents and/or the potential users of the proposed footbridge and/or the roads in that vicinity).

59. The defendant’s reliance on s 6 (especially s 6(4)), Village Representative Election Ordinance (Cap 576) as showing a statutory duty to do so is misconceived.  The statutory provision sets out the functions of an indigenous inhabitant representative (of which the defendant was one):

“to reflect views on the affairs of the Village on behalf of the indigenous inhabitants of the Village”

and

“to deal with all affairs relating to the lawful traditional rights . . . and the traditional way of life . . . ”.

But the functions have to be read together with the other provisions of Cap 576 (such as Part 8 thereof (Rural Committee), and an indigenous village representative’s right to be a member of the rural committee), as well as those of Heung Yee Kuk Ordinance (Cap 1097).  So understood, the statutory functions are not intended for an indigenous inhabitant representative to “take to the streets”.

60. Similarly, there was no corresponding interest on the general public’s part to receive the information.  The proposed footbridge was a matter which should be of direct concern to those who may from time to time use it, or may in some way be properly considered to be affected by it (for example, people whose privacy, or property rights, may be affected). In this sense it was a “local” matter.

61. To the extent the defendant should somehow be able to rely on this line of defence, as a matter of law “malice” will defeat the defence: Gatley, para 17.1 to 17.20.  But “malice” is a narrower concept in relation to honest/fair comment than in qualified privilege: Gatley, para 17.1, text to 1.

62. Gatley also gives a summary of “malice” in relation to qualified privilege (citing Horrocks v Lowe [1975] AC 135):

(1)  dominant improper motive;

(2)  absence of honest belief, in the sense the defendant did not believe what he published was true; (para 17.3 thereof).

63. The above mental state can be inferred from things like:

(a)  the publication contains irrelevant matter which was not believed to be true, or was known to be irrelevant;

(b)  defendant was not using the occasion honestly for the legitimate purpose.

(Gatley, para 17.4 to 17.5) Ill will or a desire to injure the plaintiff is unnecessary (Gatley, para 17.8); but mere absence of positive belief in truth is not “malice” (Gatley, para 17.6 and 17.17).

64. Para 48 above is repeated here.  By virtue of those matters, further to inferring a lack of genuinely held opinion (which can constitute “malice” for the purpose of honest/fair comment), “malice” (in the sense set out under this heading) can also be inferred for this line of defence because:

(1)  the defendant did not believe in the offending banners (para 25 and 48(1) above);

(2)  the offending banners did not charge the plaintiff with:

(a)  a breach of his alleged promise to act in accordance with the villagers’ wish;

(b)  a failure to convey their wish to the appropriate body (such as the said rural committee and/or the said district council);

(c)  a failure to convey the progress of the proposed footbridge; (these being his criticisms of the plaintiff put forth at the trial);

(3)  instead, the offending banners charged the plaintiff with the defamatory imputations set out in para 35 above.

Thus, if a finding for “malice” should become necessary, I find that it has also been established here.

Responsible Public Dissemination of Information

65. This line of defence has also been called “publication on a matter of public interest” in Gatley, Ch 15.  Again, the law in this regard has been set out in the Cathay Pacific decision.  There, the court of appeal observed:

“In the context of publication in the media, the House of Lords in [the Reynolds decision] rejected the suggestion that there should be a new subject matter category of qualified privilege . . . ” (emphasis supplied) (para 134 thereof);

“In [the Jameel decision], Lord Hoffmann suggested a three‑pronged inquiry in the application of the Reynolds defence:

(a) The public interest of the material . . .

(b) Inclusion of the defamatory statement . . . The fact that the material was of public interest does not allow the newspaper to drag in damaging allegations which serve no public purpose. They must be part of the story. And the more serious the allegation, the more important it is that it should make a real contribution to the public interest element in the article . . .

(c) Responsible journalism . . . whether the steps taken to gather and publish the information were responsible and fair” (para 138 thereof);

“In Seaga v Harper, the Privy Council held that the Reynolds defence was available not only to the press and broadcasting media but also to anyone who published through the mass media. On this basis, with which we respectfully agree, the principle falls for consideration in this case. It may be more appropriate . . . to refer to the defence as one of responsible public dissemination of information . . . ” (para 139 thereof).

66. The defendant (correctly) accepts that facts and matters pertaining to a responsible public dissemination of information have not been pleaded or proven by evidence.  The assertions made in the defendant’s final submissions that regard should be had to:

(a)  the defendant’s financial strength;

(b)  the defendant did not have expertise in such dissemination;

(c)  the plaintiff being a person who held public office,

are insufficient to advance this part of his case.

67. I will therefore only state for the record that this line of defence fails.

Quantum of Damages

68. Unfortunately not much assistance has been provided by the parties.

69. The Cathay Pacific decision awarded $700,000.00 for general damages; the plaintiff contends an award of $1 million should be made in his favour.  Relying on Trumm v Norman [2008] EWHC 116 (QB), the defendant argues for nominal damages to be awarded; alternatively, the defendant submits a general damages award of $100,000.00, relying on Wong Ying Chow v Wong Hang Yin DCCJ 4078/2005 ($100,000.00 general damage awarded for a slander that the plaintiff defalcated land owned by others).

70. Besides the above decisions, I have also re‑visited earlier decisions which the court of appeal observed were:

“. . . all but one concerned solicitors who had been accused of dishonest/corrupt conduct and the other involved singers/actresses accused of immoral conduct . . . ” (Oriental Daily Publisher Ltd and Another v Ming Pao Holdings Ltd and Others [2011] 3 HKLRD 393, para 51).

These included decisions such as Yaqoob v Asia Times [2008] 4 HKLRD 911 and Hung Yuen Chan Robert v Hong Kong Standard (1996) 4 HKC 519 (the plaintiff here is of course not a practising solicitor).

71. The only similarity between those decisions and this action is the accusation made in public that the plaintiff was engaged in improper conduct.  That apart, none of the above decisions bears resemblance to the defamation involved in this action (set out below).

72. First:

(1)  the defamatory imputations have been set out above;

(2)  the offending banners were published in the manner set out above.

73. Secondly, it is common ground the plaintiff was at the time holding an office of honour.

74. Thirdly, the defamatory imputations’ “sting” is that the plaintiff was incompetent, derelict in the discharge of his duties of, and was unfit to hold, that office.

75. Although there is no direct evidence, it can be inferred from the general state of the evidence that the plaintiff enjoyed at least some degree of notoriety in Shatin.  The apparent direct involvement of the publisher of the offending banners in the mattes complained of must have given some degree of apparent credibility to their contents (that is, an ordinary reader may find the allegations credible).

76. Judging from the undisputed evidence that there was often heavy traffic around the vicinity of the place of publication of the offending banners (which was part of the reasons for the proposed footbridge), the offending banners have probably been seen by a substantial number of people.

77. Bearing all of the above in mind, I agree with the plaintiff to the extent that general damages should be assessed at $400,000.00.

78. The defendant’s conduct since the publication of the offending banners is nothing to be applauded: he refused to apologise, and attempted to dodge liability by denying his involvement in the publication of the offending banners.  Despite these, I am not satisfied that his conduct has reached the threshold for aggravated damages to be awarded; no such award will be made accordingly.

Conclusion

79. Judgment is entered against the defendant on liability together with an award for general damages of $400,000.00 with interest.  The prayer for other relief is refused.

Other Matters

80. The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the judgment and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

Costs Order

81. The usual rule that costs should follow the event is agreed to be applicable.  There will accordingly be a costs order that the costs of this action (including any reserved costs) be paid by the defendant to the plaintiff to be taxed if not agreed.