LEE YORK FAI v. HO HAU CHEUNG

HCA 1251/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1251 OF 2005

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J U D G M E N T

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Background

1.  The Plaintiff (“Dr Lee”) and the Defendant (“Mr Ho”) have both been members of the Shatin District Council (“the Council”) since 1994.  Plainly, they have known each other for a long time.  Sadly, a dispute has arisen between them arising out of something which Mr Ho had said during a meeting of the Council that was held on the 2.11.04 (“the Meeting”).  In this action, Dr Lee sues Mr Ho for defamation in respect of what was said by Mr Ho about him at the Meeting. 

2.  Dr Lee is a medical doctor and he has a clinic in Shatin.  Mr Ho is a teacher.  Both these gentlemen are elected members of the Council.  There is no question in my mind that they are both dedicated in serving the community.  I believe that they are well-known in Shatin and the New Territories East district.  Indeed, Dr Lee’s unchallenged evidence is that he has on various occasions provided different kinds of free medical service to over 100,000 people in the New Territories East district.  Further, he was and is referred to as “Dr Lee” by his colleagues in the Council.  Mr Ho takes no issue that at all material times he knew that Dr Lee was a medical doctor. 

3.  At all material times, Dr Lee was not affiliated to any political party, whereas Mr Ho was a member of the Civic Force.  Dr Lee’s evidence is that the Civic Force was affiliated with the Democratic Alliance for the Betterment of Hong Kong (“DAB”) and that since 1994 he had been competing for a seat and for various positions in the Council against members of the Civic Force or DAB.  Mr Ho does not accept that there was any connection between the Civic Force and DAB and emphasizes that they were independent parties.  I do not see that anything of substance will turn upon that issue.  Dr Lee also said that he and Mr Ho were at the “opposite ends of the political spectrum”.  However, there is no evidence before me that whatever political rivalry may have existed between Dr Lee and Mr Ho, it went outside what can be regarded as healthy competition normally expected under our political system. 

The Offending Statements

4.  Details of the Meetings are recorded in a set of minutes which is of 39 pages (“the Minutes”) and is agreed by the parties.  There were 60 people at the Meeting, including 48 Council members, various Government officials, 2 news reporters and 1 member of the public.  In para. 83 on page 29 of the Minutes, it is recorded that Mr Ho made a comment about Dr Lee in response to what Dr Lee had said.  The Minutes are of course recorded in the third person.  Mr Ho’s evidence is that what he said at the time (“the Statements”), which is perfectly consistent with the Minutes, was as follows:

“我對於剛才李躍輝先生的說話感到十分慨嘆，這可能是過往的教育長期只追求量而不追求質的結果，令我們的專業人士有時會有些糊塗。我請李躍輝先生多些聆聽前線教育工作者的意見，然後才發表其偉論。”

5.  The English translation for the Statements, as agreed by the parties, is as follows:

“I regretted very much for the words just said by Mr Lee York Fai.  That may be due to the fact that in the past, education had for a long time preferred quantity to quality, causing our professionals a bit muddle-headed sometimes.  I would ask Mr Lee York Fai to listen to the opinions of frontline educational personnel more before presenting his brilliant comments.”

6.  In the course of final submissions, Mr Fung, who appears for Dr Lee, said that Dr Lee no longer disputes the accuracy of the Statements.  In fact, Dr Lee’s version of what was said does not differ greatly from the Statements and is set out below together with the pleaded translation:

“我對李躍輝醫生的發言深表慨歎，我認為這可能是過去教育制度重量不重質，以致培養去出來的專業人士都很糊塗。我請李躍輝醫生多與教育界前線人士溝通後才發表他的偉論。”

“I am very disappointed and frustrated at the speech of Dr Lee York Fai.  I think this is possibly due to our past educational system which preferred quantity to quality, and produced the result that professionals raised (under that system) are all woolly-minded and muddle-headed.  I urge Dr Lee York Fai to have more communication with the frontline educational personnel before making any brilliant comment of his own.”

7.  Bearing in mind that the Meeting was tape recorded, it is surprising that any disagreement on what was said by Mr Ho was not resolved well before this trial.  Had it been necessary to adjudicate on the issue, I would have no hesitation in preferring Mr Ho’s version of what he said because, as noted above, it mirrors what is recorded in the Minutes.  Whilst I accept Dr Lee’s point that minutes are generally meant to record the gist of what was said, in this particular case, due to the fact that Dr Lee had made a formal complaint at the Meeting against Mr Ho about what was said by him, a request was specifically made by a Council member to the Secretariat for a clear record to be made in the minutes of what was said by Mr Ho and Dr Lee (see p.33, para.101 of the Minutes). 

8.  Further, prior to the approval of the Minutes, a draft was circulated to, inter alia, Dr Lee on about the 13.12.04.  Dr Lee made no suggestion that the draft required any amendment.

9.  Furthermore, Dr Lee accepts that he has no contemporaneous notes of what Mr Ho said.  The human brain cannot normally remember a string of sentences with accuracy.  Dr Lee said that he had repeatedly cross-checked his version of what was said with members sitting next to him and that they agreed with his account.  I do not believe that this evidence takes Dr Lee’s case any further.  Firstly, none of those members was called to give evidence to support Dr Lee’s case.  Secondly, assuming that a version of what was said was agreed between Dr Lee and those members, no contemporaneous notes were made of the same.

10.  I should say a few words about the context in which the Statements came to be made.  The relevant part of the Minutes starts at p.20 and concludes at p.33.  There was a discussion about the introduction of “Small Class Education” (“SCE”) in Shatin.  No fewer than 10 Council members and 1 representative of the Education and Manpower Bureau spoke on this issue.  It is evident from the speeches of the Council members that some of them held strong views on the subject.  Amongst them was Dr Lee who expressed a view against the indiscriminate application of SCE.  In the course of expressing his view, the terms “keeping the rice bowl” and “feeding the lazy guys” were used.  Mr Ho responded to that speech of Dr Lee, in the course of which the Statements were made. 

11.  Very sensibly, Mr Fung has narrowed down his case to one of libel based on the republication of the Statements in the Minutes, thereby rendering otiose the arguments advanced by Mr Cheung, who appears for Mr Ho, on (a) whether Dr Lee’s case of slander is actionable per se without proof of special damage and (b) whether s.23 of the Defamation Ordinance, Cap.21 is applicable to Dr Lee’s case.   

12.  For completeness, Mr Fung made an application to re-amend the Statement of Claim, after the evidence was concluded, to include, inter alia, a plea of libel based on a republication of the Statements (in substantially the same form) in a newspaper called “Ming Pao New Territories East Express” [Bundle 2/ p.283].  I accepted Mr Cheung’s submission that there was prejudice to Mr Ho which could not be compensated by costs if that particular re-amendment were allowed, namely, that Mr Ho was denied the opportunity to give evidence in defence of that plea.  Accordingly, that re-amendment was rejected. 

Meaning of the Statements

13.  To decide whether or not the Statements were defamatory, I must first consider the meaning that the words would convey to the ordinary person.  It is the natural and ordinary meaning of the words which matters:

“The meaning of words for the purpose of the law of defamation is not a question of legal construction, since laymen will read into words implication more freely than a lawyer.  The meaning is that which the words would convey to ordinary persons.  The ordinary person reads between the lines in the light of his general knowledge and experience of the worldly affairs.  Thus, interpretation of words may vary infinitely, and the right meaning is a question of fact.  However, words may be understood by one person in a different way from that in which they are understood by another.  Ordinary men and women have different temperaments and outlooks; some are unusually suspicious; some are unusually naïve; and one must envisage people between those two extremes and determine what is the most damaging meaning they would put on the words in question.  The court must not put a strained or unlikely construction upon the words.  If they are capable of bearing a number of good interpretations, it is unreasonable to seize upon the only bad one to give the words a defamatory sense.” (Halsbury’s Laws of Hong Kong, Vol.25, p.454, [380.519])

14.  The pleaded meanings[1] are as follows:

“(a)    that the Plaintiff, as a medical doctor and/or a member of the said Council, was a professional raised under a substandard educational system;

(b)     that the Plaintiff, as a medical doctor and/or a member of the said Council, was a substandard professional; and

(c)      that the Plaintiff was such a substandard professional who made comments and did thing without giving due consideration and information.”

[sic]

15.  It should be noted the Statements did not refer to Dr Lee as a medical doctor, whereas the pleaded meanings are based on Dr Lee’s version of what was said which contains such a reference (see para. 6 above).  However, Dr Lee relies upon certain innuendos based on the fact that the readers of the Minutes knew that he was a medical doctor.  It is agreed that the Minutes were read by the Council members, Secretariat staff and various Government officials.  Fairly, Mr Cheung does not dispute that those readers knew of Dr Lee’s profession.  The relevant[2] pleaded innuendos[3] are as follows:

“(a)    that the Plaintiff is and was, being as a professional, namely his widely-known occupation as a medical practitioner and/or a member of the said Council, a person who always muddles through issues without giving due consideration;

(c)   that the Plaintiff is and was, being as a professional, namely his widely-known occupation as a medical practitioner and/or a member of the said Council, a person who is substandard due to his educational background;”

[sic]

16.  I have no difficulty in rejecting the proposition that the words of the Statements (“the Words”) meant that Dr Lee “made comments and did thing without giving due consideration and information” or was “a person who always muddles through issues without giving due consideration”.  I do not see how those meanings can arise from the second and third sentences of the Statements, which are the basis of the proposition. 

17.  In my judgment, the Words bore or were capable of bearing the following meanings:

(a)     Dr Lee, as a medical doctor, was raised under a substandard education system;

(b)     Dr Lee, as a medical doctor, was a substandard professional.

18.  My findings do not entirely reflect the pleaded meanings or innuendos.  I believe that these findings are simply variants of the pleaded meanings and innuendos and that the just determination of this case should not be shackled by non-critical deficiencies in the pleading. 

19.  In coming to my findings, I have rejected Mr Cheung’s submission that I have to look at the second and third sentences of the Statements in conjunction and that they did not give rise to the meaning that Dr Lee was raised under a substandard education.  Instead, the meaning derived from those sentences was that Dr Lee was muddle-headed sometimes.  Mr Cheung’s submission does not sit well with Mr Ho’s evidence.  In his cross-examination, Mr Ho said that: “I agree that for the listeners, what I referred to as muddled-headed was due to the fact that [Dr Lee] had received education which emphasized quantity and not quality”.  Of course, such evidence is not critical because it is the understanding of the reasonable reader which counts.  However, in my view, the reasonable reader would have agreed with Mr Ho.

20.  Further, I agree with Mr Fung that there are two distinct stings in the second and third sentences, namely, that Dr Lee was raised under a substandard education and that he was muddle-headed sometimes. 

21.  I believe that my finding set out in para. 17(a) above is self-evident from the Words, bearing in mind the knowledge of the readers that Dr Lee was a medical doctor.  As regards my finding under para. 17(b), it is, I believe, an inference which the reasonable reader would draw from the suggestion that Dr Lee was raised under a substandard education system. 

22.  In his submissions, Mr Fung has also advanced complaints based on the sting that Dr Lee was muddle-headed.  I can see no such plea in his pleading (a critical deficiency).  In any case, as will emerge shortly, I do not believe the suggestion that Dr Lee was sometimes muddle-headed is defamatory. 

Are the meanings defamatory?

23.  There can be no doubt that the meanings set out in para. 17 above are defamatory of Dr Lee.  Indeed, Mr Cheung has not suggested otherwise.  No attempt has been made to prove that Dr Lee was indeed raised under a substandard education. 

24.  In respect of the suggestion that Dr Lee was “a bit muddle-headed sometimes” (the meaning of those words is plain), whether that was defamatory depended, in my view, very much upon the circumstances and context in which those words were uttered.  Mr Cheung argues strongly that everyone can be a bit muddle-headed sometimes.  I certainly cannot disagree with that proposition. 

25.  Further, it must be borne in mind that the Words were said in the context of a lively District Council debate.  Mr Ho was making a point that he disagreed with what was said by Dr Lee and he regarded the same as the product of muddle-headedness.  I am unable to see that the words “a bit muddle-headed sometimes” in the circumstances and context in which they were spoken would have lowered Dr Lee in the estimation of right-thinking members of society generally or exposed him to hatred, contempt or ridicule [Gatley on Slander and Libel, 10^th ed., p.8, para.1.5]

S.86 of the District Councils Ordinance, Cap.547 (“the Ordinance”)

26.  Mr Cheung has, rightly, indicated that he would abandon his defences of justification and fair comment in the event that this court finds that the Words meant that Dr Lee was brought up under a substandard education system.  His remaining defences are (i) s.86 of the Ordinance (“s.86”) and (ii) qualified privilege. 

27.  Both Counsel are of the view that there is a considerable amount of overlapping between s.86 and qualified privilege.  For the reasons set out below, I believe that the primary consideration should be s.86 and if that defence is made out, much of the highly technical arguments concerning qualified privilege would become irrelevant. 

28.  There are actually two relevant sections in the Ordinance which need to be considered, s.61 and s.86:

          s.61

“The functions of a District Council are–

(a)     to advise the Government–

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

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

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

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

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

         (i)      environmental improvements within the District;

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

         (iii)    community activities within the District.”

          s.86

“A member of a District Council or a committee shall not be subjected to any liability, action, claim or demand by reason of anything done bona fidefor the purpose of carrying into effect the provisions of this Ordinanceor any other enactment conferring functionson a District Council.”

29.  The s.86 defence was described as a “statutory qualified privilege” in Chan Chook Tim v Wong Kwok Hung, CFI, [2004] 1 HKC 18, a case heavily relied upon by Mr Cheung.  I agreed with that description.  However, in my view, whilst the law on qualified privilege is of some assistance when the application of s.86 is considered, one should not simply equate the two.  Plainly, the terms of s.86 reflect an intention on the part of the legislature to provide a blanket immunity to the District Council members from being sued provided that (a) they were performing their functions under, inter alia, the Ordinance and (b) they were acting bona fide. 

30.  Further, the law of qualified privilege was there when s.86 was enacted.  Logic dictates that the section was intended to provide a defence which was different (and/or in addition) to qualified privilege.  In my view, when the application of s.86 is considered, the court is freed from the myriad of technicalities which have been developed over the years on the law of qualified privilege.  The issues are simply those two identified in the preceding paragraph.  It would be defeating the purpose of s.86 to make its application unnecessarily complicated with the adoption of various technicalities which apply to the law of qualified privilege.  This view is fully consistent with the wording of s.86.

31.  In respect of the first issue – whether Mr Ho was performing his functions under the Ordinance when he took part in the discussion on SCE at the Meeting, it seems to me that the answer is quite clearly in the affirmative.  It was a discussion for the purpose of advising the Government, which fell within s.61(a)(i) and/or (ii) and/or (iii). 

32.  Mr Fung’s arguments on the 1^st Issue is, with respect, burdened with the adoption of a number of technicalities developed under the law of qualified privilege, e.g., one of the questions he posed for this court is whether Mr Ho had a duty to make the Statements.  For the reasons stated above, much of the arguments based on the law of qualified privilege are, in my view, of limited relevance.

33.  However, Mr Fung argues that Mr Ho was not discharging his duties under the Ordinance at the material times because, instead of advising the Government, Mr Ho was attacking his political rival.  Further, Mr Fung submits that the defamatory remarks in question were irrelevant to the discharge of Hr Ho’s duties.  I accept that Dr Lee and Mr Ho were political rivals (the evidence is not disputed).  However, I cannot begin to see what evidence there is in support of Mr Fung’s first point.  The fact that defamatory remarks against Dr Lee were made in Mr Ho’s response cannot by itself nullify the fact that Mr Ho was engaged in a discussion, the purpose of which was to advise the Government.  Whilst I cannot discount the possibility that there can be a case where what a District Council member was doing was, despite its appearance, not in fact a discharge of his duties under the Ordinance, it appears to me that the argument made by Mr Fung should properly be addressed under the second issue – whether Mr Ho was acting bona fide.  In my view, the determination under the first issue should normally involve a simple finding of fact. 

34.  Mr Fung’s second point is premised upon the law concerning qualified privilege, citing Adam v Ward [1917] AC 309 at 340:

“Some question was raised as to whether the presiding judge was the person to decide whether any foreign and irrelevant matter had been introduced into the libel, and whether it was separable.  I think it must be the judge who is to do so.  He it is who must decide whether the occasion is privileged or not, and if that be so, he must necessarily decide in respect of what portionof the libel the occasion would be privileged if it stood by itself. A more difficult question, however, remains upon which the authorities cited give little, if any, assistance. It is this: What would be the effect of embodying separable foreign and irrelevant defamatory matter in a libel? Would it make the occasion of the publication of the libel no longer privileged to any extent, orwould those portions of the libel which would have been within the protection of the privileged occasion, if they had stood alone and constituted the entire libel, still continue to be protected, the irrelevant matter not being privileged at alland furnishing possible evidence that the relevant portion was published with actual malice.In the absence of all guiding authority the latter would, in my opinion, be more consistent with justice and legal principle, and I think it is, in law, the true result.”

35.  I do not agree that such technicality should be imported in a wholesale fashion or is relevant to the consideration of the first issue under s.86.  In any case, it cannot be right to have what Mr Ho said in response to Dr Lee’s speech carefully dissected and analysed so as to evaluate whether a particular sentence or word was or was not relevant for the purpose of performing his functions.  Such an exercise is, with respect, somewhat detached from reality.  The fact is that emotive terms or strong language (even defamatory language) are used in discussions and debates everyday.  I can understand (without in any way endorsing it) that, being a teacher, Mr Ho was upset about Dr Lee’s comments of “keeping the rice bowl” and “feeding the lazy guys”.  No doubt he felt it necessary or was driven by impulsiveness to rebuke such comments.

36.  Further, if the court were to engage in the exercise advocated by Mr Fung, the protection provided by s.86, certainly in respect of defamation actions, would be considerably diminished.  Such a result cannot be conducive to allowing the District Council members the freedom to discharge their functions without fear and is inconsistent with the intention behind s.86 as reflected by its wording.  This is not to say that the District Council members are in a position to abuse their privilege.  The immunity under s.86 is subject to acting bona fide.  Before I deal with the second issue, I ought to quote a passage from the judgment of Lord Diplock in Horrocks v Lowe [1975] AC 135 at 151 (an authority on qualified privilege), which reflects the above concern:

“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.”

37.  In respect of the second issue, Mr Fung has rightly accepted that the burden of proof is on Dr Lee and it is not a light one.  Mr Fung’s submissions here are premised upon the law of “express malice”.  It is a term of art employed to describe improper motives and absence of honest belief which would defeat the defence of qualified privilege [see summary of the principles in Gatley, supra, pp.510-1, para.16.3].  In para. 33 of his Closing Submissions, Mr Fung sets out his case on express malice, which he has adopted in his arguments on lack of bona fides:

“In summary, malice vis-à-vis qualified privilege can be established if one of the following condition is satisfied:

(a)     [Mr Ho] did not honestly believe what he had said

(b)     [Mr Ho] was reckless or indifferent as to the true or falsity; or

(c)      Mr Ho] used the occasion to vent his personal spite or will ill towards [Dr Lee] or otherwise had some improper motives.”

[sic]

38.  It is clear to my mind that the defamatory remark in question was gratuitous and made in the heat of the debate on SCE.  I do not believe that Mr Ho had an honest belief that Dr Lee was raised under a substandard education.  Mr Ho said in cross-examination that: “I am of the same age group as Dr Lee and I received the same education.  I firmly believe that the Hong Kong education system at the time had the emphasis on quantity but not quality”.  I regard such evidence as an embellishment to downplay the insult to Dr Lee.  On the other hand, I have no doubt that the defamatory remark was made on the spur of the moment when Mr Ho was upset by what Dr Lee had said. 

39.  For the reasons elaborated above, I believe that the protection under s.86 is wider than the defence of qualified privilege.  I accept that the law of express malice is of assistance in guiding the court on what may amount to lack of bona fides.  On the other hand, the court is not straitjacketed into applying those principles.  The applicable principles for s.86 should be simple and easy to understand by the citizens of Hong Kong. 

40.  To resolve the second issue, one must start with what bona fide means in the context of s.86.  In absolute terms, one may say that a defamatory remark (with no honest belief by the maker as to its truthfulness), albeit made on the spur of the moment, cannot be made bona fide (for convenience, I shall refer to such a remark as “Such Defamation”).  I have said enough about the danger of rendering the protection under s.86 nugatory or substantially so.  If one interprets bona fide in such absolute terms, it is difficult to see what protection s.86 was intended to provide to the District Council members which was not already in existence under the law of defamation, in particular the law of qualified privilege. 

41.  According to Stroud’s Judicial Dictionary of Words and Phrases, 7^th ed., vol.1, pp.296-7:

“The phrase bona fide is used in many contexts in each of which it will necessarily have particular connotations.  …

The fundamental meaning in all contexts is something along the lines of “honesty” …”.

42.  In the context of s.86, the term bona fide qualifies the action taken by the District Council member (“anything done for the purpose of carrying into effect …”).  In simple terms, in order to invoke s.86, the District Council member must be acting honestly when he performs his functions as a District Council member. 

43.  Where Such Defamation has been made in the course of debate, it is a matter of degree whether the maker’s bona fides is negatived.  In other words, Such Defamation would not automatically take the District Council member’s action outside the scope of “honest discharge of his function”.  One must remember that debaters are liable to become emotional and lose their judgment in the heat of the proceedings. 

44.  If Such Defamation was (a) out of proportion or (b) could not be related to what was being debated or (c) made with an ulterior motive, for example, if what was said was simply a personal attack on another debater, the court might draw the inference of lack of bona fides on the part of the maker.  I believe that (b) and (c) must be examined broadly and not with the use of a microscope.  Further, it is important the threshold should not be set too low so that the integrity of the protection afforded by s.86 is at risk. 

45.  I do not agree with Mr Fung that the words used by Mr Ho were so “excessive” as to give rise to an inference of lack of bona fides.  Nor do I agree with him that Mr Ho had misused the occasion with the dominant motive of damaging his political rival.  In the premises, I am satisfied that the defence under s.86 has been made out.

46.  In the circumstances, it is unnecessary to deal with the arguments under qualified privilege.  Perhaps in the future, when an issue arises as to what has been said in the course of a District Council meeting like the present case, the focus of consideration would be the applicability of s.86. 

Conclusions

47.  I dismiss this action.  In respect of costs, not without some reluctance I award the costs of this action to Mr Ho to be taxed if not agreed.  Such reluctance arises out of the fact that Mr Ho had acted in a way that he should not feel proud of.  Further, he had refused to apologise to Dr Lee during the Meeting despite Dr Lee’s demand (although the complaint of Dr Lee at that time was the remark of muddle-headedness).  Had an apology been made, this action might never have been launched. 

[1] See para. 8 of Re-amended Statement of Claim (“RASOC”).

[2] The other innuendos are not argued in Mr Fung’s final submissions and are in any case unsustainable.

[3] See para. 9 of RASOC.