THE INCORPORATED OWNERS OF SHATIN NEW TOWN AND OTHERS v. CHEUNG KWOK KEUNG AND OTHERS

DCCJ 2684/2019

[2021] HKDC 1449

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2684 OF 2019

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BETWEEN

(by original action)

AND BETWEEN

(by counterclaim)

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DECISION

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A. INTRODUCTION

1.  This case involves a bitter dispute between 2 rival groups of owners/members (including some former members) of the management committee of an incorporated owners in a private housing estate in Shatin.

2.  It is set in the context of a defamation case brought by the plaintiffs (“Ps”) against the defendants (“Ds”) in the present proceedings. The writ and statement of claim (“SOC”) were issued by Ps and served on Ds 28 May 2019. The defence and counterclaim (“D&CC”) of the 1^st to 4^th defendants was filed on 19 September 2019 in which Ds made a counterclaim against the 2^nd plaintiff (“P2”), 3^rd plaintiff (“P3”) and the 4^th plaintiff (“P4”) who respectively became the 1^st, 2^nd and 3^rd defendants to the counterclaim.

A.1 The Injunction Summons

3.  The 2^nd defendant (“D2”) by way of a summons dated 5 August 2020 seeks an interlocutory injunction against the Incorporated Owners of Sha Tin New Town (“P1 or IO”) and P2 (who is the current chairman of the IO), to restrain P1 and P2 or inter alia their agents, to publish or re-publish words and phrases that state or imply or impute that D2 is a person of interest and remains the subject of criminal investigations in respect of his conduct during the 11^th and 12^th Management Committee (“MC”) (ie from 5 May 2016 to 26 May 2018)[1] by the authorities (“the Injunction Summons”).

4.  The Injunction Summons was heard by me on 30 & 31 December 2020. I reserved my decision at the end of the hearing and said that I would hand down my written decision in due course and the parties would be informed accordingly.

A.2 The Additional Evidence Summons

5.  Before I was able to hand down my decision in the Injunction Summons, D2 issued another summons under Order 38, rule 2 of the Rules of the District Court, Cap 336H (“RDC”) on 9 February 2021, trying to introduce post-hearing additional evidence in the Injunction Summons by way of filing a supplemental affirmation of D2 which was annexed to that application (“the Additional Evidence Summons”). The hearing of the Additional Evidence Summons took place before me on 11 & 18 March 2021.

6.  The parties agreed that I should deal with the 2 summonses in the same written decision.

7.  Here is the decision for both of those summonses.

B. BACKGROUND

B.1 The parties

8.  D2 claims to be the beneficial owner of Flat E, 20th Floor, Yae Lam Court, Shatin New Town, Nos. 1-15 Wang Pok Street, Shatin, New Territories (“the Flat”), eventhough the same was registered in his wife’s name as owner. He claims that it is his matrimonial home which he had purchased with his own monies on 7 September 2010.

9.  The Flat is situated within a large estate called ‘Lucky Plaza’, which consists of 8 blocks with 175 units per block and the Lucky Plaza Shopping Centre (“the Estate”). There is a total of 1,400 residential units. P1 as the IO of the Estate would issue notices from time to time regarding the affairs of the Estate. It also would post notices in public areas as well as through the letterboxes of residents.

10.  P2 was the Chairman of the 12^th MC. P3 was the Chairman of the 11^th MC and the Honourary Chairman of the 12^th MC. P4 was the Secretary of the 11^th MC and the Vice-Chairlady of the 12^th MC.

B.2 Background to the Injunction Summons

11.  As Mr Earl Deng for D2 admits at the outset of the hearing of the Injunction Summons, the scope of the interlocutory injunction sought by D2 against P1 and P2 is extremely narrow.

12.  For the background of the case, Mr Deng relies on Annex B, ie the amended chronology, which is attached to his written submissions dated 18 December 2020 (“D2’s Submissions”). It provides detailed background facts to the case. The amended chronology has been divided into 8 parts, namely, Parts A to H and was set in table format.

13.  I think it may be useful for me to set out those background facts in narrative form here as most of those facts are supported by documentary evidence and not controversial. However, I would like to stress that those are the background facts as alleged by D2. They are not necessarily agreed by P1 and P2. But they will in my view provide a good summary of the background of the present dispute between the parties, in particular the essence of what D2 is now seeking under the Injunction Summons.

B.2.1 The general background

14.  From 1985 to 1987, P3 was elected to serve as the Chairman of the Owners’ Committee of the Estate.[2]

15.  From October 1995 to November 2017, P3 was elected as the Chairman of the MC.[3]

16.  From 1995 to 2017, P4 was elected to serve as the Secretary of the MC.[4]

17.  On 4 December 1995, P1 was incorporated as the IO of the Estate and registered pursuant to the Building Management Ordinance, Cap 344 (“BMO”) with registration number 76(ST).[5]

18.  In June 2007, P2 joined the IO.[6]

19.  In September 2009, P2 was elected to serve as the Vice-Chairman of the IO.[7]

20.  From 1 October 2009 to 30 November 2017, P2 was elected to serve as the Vice-Chairman of the MC.[8]

21.  On 7 September 2010, D2 bought the Flat allegedly with his own monies but registered in the sole name of his wife.[9]

22.  From 1 December 2011 to 26 May 2018, D3 and D4 became members of the 9^th to 12^th MCs.[10]

23.  From 2013 to 2017, P4 was elected to serve as the Secretary of the MC.[11]

B.2.2 D2 joining the 11^th MC as a result of the invitation by P3 and P4

24.  In early May 2016, a vacancy occurred in the office of a member of the 11^th MC by reason of the resignation of one Mak Wan Tung (麥宏東).[12] P3 and P4 who were respectively then the Chairman and the Secretary of the 11^th MC invited D2 to join the 11^th MC.[13]

25.  On 4 May 2016, P3 allegedly inserted 2 forms (a candidate application form and a nomination form) (“the Forms”) into the letterbox of the Flat and attached a cover letter asking D2 to fill in and sign the Forms.[14]

26.  On 5 May 2016, D2 allegedly placed the Forms into the management office’s letterbox. D2 was then introduced to the rest of the 11^th MC as a member. There was no EGM, no election and votes to admit D2 as a member. Subsequently and during the 11^th MC, D2 joined the sub-committee in the 11^th MC that was responsible for the project upgrading the Estate’s security systems (“SSR Project”).[15]

B.2.3 D2’s election into the 12^th MC as the Secretary

27.  On 5 June 2017, at a meeting of the 11^th MC, P3 openly announced he would like to know the candidate running for each position up front in the 12^th MC. He also openly announced that his preference was for D2 to be nominated as the Vice-Chairman. He then allegedly asked each member to fill in and return a survey form to him privately. D2 indicated on his own nomination form that he did not wish to be elected as the Chairman or Vice-Chairman, and he only wished to be a member or a Treasurer.

28.  A few days later after 5 June 2017, P3 and P4 allegedly invited D2 to their home and informed D2 that he had been polled by a majority to be nominated as the new Vice-Chairman of the 12^th MC. D2 allegedly indicated to P3 and P4 that he would decline the recommendation. Shortly afterwards, P3 and P4 allegedly invited D2 to their home second time to vigorously persuade D2 to take up the nomination as a Vice-Chairman. However, D2 declined their invitation again. P3 and P4 lobbied for his reconsideration.[16]

29.  On 16 July 2017, P1 issued a notice (LP/5/55/118/16) specifying that D2 would be the Vice-Chairman of the 12^th MC and that the members of the 12^th MC would need to be confirmed by the owners in the 2017 AGM.[17]

30.  On 20 July 2017, allegedly after research, D2 found inter alia (i) there are eligibility requirements to be a legal registered owner before joining a management committee as a voting member; (ii) the role of Chairman or Vice-Chairman requires a voting member; (iii) only corporate owners can appoint representatives to be a voting member of the management committee; and (iv) the position of Secretary and Treasurer did not require such persons to be voting members. D2 allegedly brought along a land search[18] from the Land Registry of the Flat to see P3 at his home, where P4 was also present, and refused the nomination. P3 and P4 asked if D2’s wife could grant authorization to D2 or make D2 a registered owner at the Land Registry. D2 allegedly refused. P3 then informed D2 that P4 could stand as Vice-Chairman and D2 would take up the position of Secretary instead. D2 was ultimately persuaded to put himself forward as a candidate for the office of Secretary for the 12^th MC.[19]

31.  On 7 August 2017, P3 sent a WhatsApp message to the chat group suggesting that D2 would become Secretary instead of Vice-Chairman, and that P4 would become Vice-Chairlady instead of Secretary of the 12^th MC.[20]

32.  On 8 August 2017, there was allegedly an informal meeting held right after the meeting of the 11^th MC on 7 August 2017 to discuss the nomination roll, and after further discussion there would be movement as to the roles and functions of members for the 12^th MC.[21]

33.  On 10 August 2017, there was allegedly a meeting between inter alia P2, P3 and P4 to discuss the roles and responsibilities of persons who would be involved in the 12^th MC.[22] In an internal MC’s notice LP2/25/01/16 dated 11^th August 2017 issued by P3, the attachment thereof stated that D2’s role had been changed to “法團 秘書” (IO Secretary) and P4’s role had been changed to “法團 副主席” (IO Vice Chairman).[23]

34.  On 11 August 2017, in an internal MC’s notice LP2/25/01/16 dated 11^th August 2017 which was issued by P3, the attachment thereof stated that D2’s role had been changed to “法團 秘書” (IO Secretary) and P4’s role had been changed to “法團 副主席” (IO Vice Chairman)[24].

B.2.4 The disagreement between the parties on the SSR Project

35.  In September 2017, D2 allegedly started to notice certain problems with the tendering process and in relation to the conduct of P2, P3 and P4.[25] Several other members were allegedly also confused about the way P2, P3 and P4 were managing the MC. D2 and some of them began to privately discuss amongst themselves as to the right way to do things, in particular, the SSR Project. D2 suggested through WhatsApp message ie a system for backing up the computers of P1, and started to liaise with a company called ‘9801 Software Engineering’ for setting up the hardware.[26]

36.  On 29 October 2017, P1 issued a notice for the 2017 AGM (LP1/11/a31/16) and an agenda for the 2017 AGM (LP5/56/43/16) informing the owners that the 14 candidates for the 12^th MC had elected among themselves inter alia the Secretary (ie D2), and asked the owners to confirm the appointment of those candidates.[27]

37.  On 31 October 2017, P3 proposed to name D2 as the focal coordinator of the SSR Project for the 12^th MC when the progress of the SSR Project came to the final stage.[28]

38.  At the 2017 AGM of the IO on 18 November 2017, D2 was duly approved as a non-voting Secretary.[29] P3 was no longer Chairman of P1, but he was installed by P2 as “Honorary Chairman” and still played an active leading role in all aspects of the 12^th MC, and also persistently stayed in the WhatsApp group chat of the 12^th MC.[30] P2 was elected as the Chairman of the MC.[31]

39.  In December 2017, there were disagreements between D2, P3 and P2 over how the SSR project should be conducted.[32]

40.  In January 2018, P2 and P3 had allegedly all completely “sidelined” D2 by January 2018 as they were unhappy with D2’s attempts to challenge their decisions.[33] MC’s members including Ds started to actively and openly express their concerns regarding how P2, P3 and P4 managed the affairs of P1, the management of the Estate, and the SSR Project.[34]

41.  On 19 January 2018, the dispute regarding the SSR Project became so intense that D2 allegedly stepped back and refrained from further participation in the project from 19 January 2018 onwards.[35]

B.2.5 D2’s dismissal as the Secretary of the 12^th MC

42.  On 3 April 2018, at the 12^th MC, a resolution was passed to replace D2 with Cheng Man Wai as the official registered Secretary, and D2 was to assume the position of “Voluntary Secretary”.[36] D2 was not present at that meeting. According to P2, D2’s role was to be maintained, using the phrase “職權不變” (“role remains unchanged”) such that D2 would still resume his role as a Secretary with his functions “totally unchanged” (“完全不變”).[37]

43.  Furthermore, Mr Cheng Man Wai, the newly appointed Secretary, would continue to resume his role as Chairman of the Works Sub-committee and would not take over D2’s role while D2 would continue his work as a Secretary as usual. Having heard the explanation and assurance from P2, D4 did not actively object to the resolution. Notice LP5/55/07/18 was distributed to all the residents prior to the said meeting.[38]

44.  On 8 April 2018, D2 and D3 complained in the WhatsApp group about the issuance of the notice LP5/55/07/18 because it was not presented to MC members at the meeting nor put to a vote before the issuance.[39]

45.  The allegedly defamatory 17 December 2019 statement which D2 complains of was first issued by P3 to all members of the 12^th MC (including all Ds) in the form of a WhatsApp message on 14 April 2018 (“the 14 April 2018 Whatsapp Message”),[40] which was more than 2 years and 3 months before the issue of the Injunction Summons.

46.  On 23 April 2018, P1 (through P2) published a dismissal letter (LP5/55/09/18) which was copied to inter alia the Shatin Police and also the ICAC, and indicated that criminal offence or crime was committed, D2 had been immediately removed, and the related authorities were put on notice.[41]

47.  On 25 April 2018, D2 wrote a letter in reply to P2 and asked questions challenging his decision to dismiss D2.[42]

48.  From 27 April 2018 to 6 May 2018, D2 allegedly wrote numerous emails to P2 demanding justification of his dismissal and the content of the dismissal letter.[43]

49.  On 10 May 2018, P1 (through P2) issued notice LP1/11/a/32/18 titled “特別業主大會” (“Extraordinary Owners’ General Meeting”) informing members of an EGM to be held on 26 May 2018 for the resolution of removing D2 and other Ds from their respective positions in the 12^th MC.[44]

50.  On 11 May 2018, D2 wrote another letter to all members of the 12^th MC titled “澄清法團秘書身份及貫徹個人誠信” to clarify in writing how he came to be appointed as a member of the 11^th MC and the Secretary of the 12^th MC.[45]

51.  On 15 May 2018, all Ds jointly issued an open circular to all owners/residents of the Estate so as allegedly to “tell the truth” about the SSR project.[46]

52.  On 19 May 2018, P1 (through P2) issued notice LP5/55/18/18 titled “真的假不了，假的真不了” and published to all the residents, owners and occupants of the Estate.[47]

53.  On 26 May 2018, the EGM to remove D2 and other Ds was held as scheduled. D2 was removed from his position as the Secretary of the 12^th MC at that meeting. [48]

B.2.6 P2’s request of returning documents and objects of P1 from D2

54.  On 27 May 2018, P2 wrote D2 an email asking him to return all master copies of P1’s documents and keys of cabinets in the conference room of P1 to him.[49]

55.  On 29 May 2018, D2 replied to P2 that he did not possess master copies of any P1’s documents and he only kept 2 keys to the small conference room cabinet and Cabinet “C6”, which in turn contained 2 keys to cabinet “C7” and “2”.[50]

56.  On the same day, P2 replied to D2 that the nomination forms were indeed given to D2, and if D2 failed to return the forms, P1 would report the matter to the Police.[51]

57.  On 30 May 2018, D2 replied to P2 stating that he did not keep or possess any master copy of any of P1’s document, and he would be willing to cooperate with any Police investigation if there was indeed any theft committed. In relation to the keys, D2 would hand over the keys to the next Secretary of the MC. P2 replied and insisted that D2 had kept keys other than the 2 mentioned keys. P2 also insisted that D2 kept the nomination forms because D2 needed them for registration of the members of the 12^th MC at the Land Registry.[52]

58.  On 1 June 2018, D2 replied to P2 that he did not keep the nomination forms as he did not need them for registration at the Land Registry, nor did he keep any other copy of P1’s document. D2 also volunteered to report to the Police in relation to the lost documents with him if he wished.[53]

59.  On 8 June 2018, D2 sent another email to P2 saying that he could return the 2 keys to him on 9 June 2018 at 10 am.[54]

60.  On 9 June 2018, D2 returned all the keys he possessed to P2.[55]

B.2.7 Police investigation on D2

61.  On 11 June 2018, in a meeting of the 12^th MC, it was resolved that the 12^th MC should report to the Police the allegations against D2 for investigation.[56]

62.  On 16 June 2018, P1 (through P2) issued a notice LP5/55/24/18 titled “報警備案”.[57]

63.  On 23 August 2018, P3 in his capacity as the Honorary Chairman of the 12^th MC issued a notice 06/18 titled “特別業主大會後的跟進”.[58]

64.  On 24 September 2018, P3 in his capacity as the Honorary Chairman of the 12^th MC issued a notice 07/18 titled “特別業主大會後的跟進（二）”.[59]

65.  On 29 September 2018, P3 issued notice 13/18 to explain why the new category of notice 法團會務闡述 was created.[60]

66.  On 2 October 2018, the Police conducted house search of the Flat.[61]

67.  On 10 October 2018, the Police concluded their investigation against D2 and closed the case because there was insufficient evidence to commence prosecution against him.[62]

68.  On 18 March 2019, the ICAC notified D2 in writing that they had concluded their investigation in relation to the complaint made by P1 and P2 against D2.[63]

69.  On 2 March 2019, P4 issued a notice 07/19 titled “檔案何價” which contained the alleged 11^th Defamatory Words.[64]

B.2.8 The present case and subsequent defamatory notices

70.  On 28 May 2019, Ps filed the SOC in these proceedings.[65]

71.  On 19 September 2019, Ds filed the D&CC. D2 pleaded in §§124-128 thereof that the 11^th Defamatory Words were false.[66]

72.  On 17 December 2019, P1 (through P2) issued a notice 34/19 titled ‘法團被誹謗案的6個“為什麼？”’.[67] (“the 17 December 2019 Statement”).[68]

73.  On 22 December 2019, P1 (through 容定宜) issued a notice 35/19 titled “法團運作觀察”.[69]

74.  On 13 January 2020, P1 (through P2) issued a notice LP5/55/06/20 titled “法團被誹謗案進度簡報（二）”.[70]

75.  On 7 July 2020, P1 (through P2) issued a notice 07/20 titled “法團及委員被誹謗案的進展” (“the 7 July 2020 Statement”).[71]

76.  On 18 July 2020, D2’s legal representatives wrote a pre-action letter putting Ps on notice that the 17 December 2019 Statement and the 7 July 2020 Statement (jointly “the Statements”) were defamatory, and requested P2 to give an undertaking that he and his agents would cease from publishing and circulating false allegations of D2 in relation to any criminal conduct of his appointment to the 11^th and 12^th MCs and any conduct during the 12^th MC, failing which D2 would issue injunctive proceedings against P2.[72]

77.  On 21 July 2020, D2’s legal representatives wrote another pre-action letter asking for undertaking of similar content to the letter dated 18 July 2020.[73]

78.  On 23 July 2020, Ps’ solicitors replied and denied the notices impute that D2 was under Police investigation in relation to the criminal offences mentioned there, but that the complaint had already been disposed of by making report to the Police.[74]

79.  On 5 August 2020, D2 filed the Injunction Summons.[75]

80.  On 10 August 2020, D2 wrote a 3^rd letter asking for undertaking that P1 and P2 to stop circulating the statements under complaint pending the resolution of the Injunction Summons.

81.  On 13 August 2020, D2 wrote a 4^th letter putting on record that P1 and P2 did not reply to D2’s letter dated 10 August 2020.

82.  14 August 2020 was the return date for the Summons.

83.  On 6 October 2020, D2’s legal representatives wrote a 5^th letter for an open offer to withdraw the Injunction Summons and for costs to be reserved, upon P1 and P2 providing a basic undertaking that until trial, they will cease publishing, disseminating, or circulating any words or phrases that suggest, imply or impute that D2 remains under criminal investigation by the Police or ICAC for his conduct during the 11^th and 12^th MCs.[76]

84.  On 9 October 2020, Ps’ solicitors replied and asserted that D2 has failed to satisfy the 4 conditions for the grant of an interlocutory injunction, and rejected on behalf of P2 to give an undertaking.[77]

85.  On 27 October 2020, D2’s legal representatives wrote a 6^th letter to repeat the open offer given in the 3^rd letter dated 6 October 2020.[78]

B.2.9 A note on the chronology

86.  As I had noted in my previous decision for leave to adduce further evidence on 10 December 2020, most of the disputes that have been pleaded in the main defamatory action are not relevant to this very narrow application.  However, I hope by setting out the above chronology in full, it gives a gist of just how long, deep and bitter the disputes have existed between the parties.

C. DISCUSSION

C.1 D2’s case

C.1.1 D2’s grounds for the application

87.  Mr Earl Deng for D2’s submits that, for the purpose of providing sufficient context, the events which prompted P1–P4 to make the initial police report and criminal allegations against D2 may be relevant when assessing whether the threshold of malice has been reached.

88.  D2 says that the crux of the case however requires the Court at this stage to find that there can be no truth and justification in relation to the narrow point which D2 makes, namely, to stop expressing, suggesting, implying or insinuating that he remains the subject of investigation of criminal allegations for matters and his conduct arising under the 11^th and 12^th MCs by the investigating authorities.

89.  D2 claims that the reason for the narrow injunction is not because D2 concedes that there is truth or justification to those allegations and the conclusion of the criminal investigations was due to a technicality. Instead, D2 claims that he is seeking for an end to the constant repetition and publication of statements from the IO that suggest the Police investigation against him continues. D2 says that this is understandable as the investigations had closed since October 2018 but almost 2 years later the IO continues to repeat the same line.

90.  Thus, D2 submits that the close focus in the application and for the Court to decide, is whether P1 and P2, despite knowing and being on notice that the Police have ceased investigations against D2, was reckless or with reckless indifference to the truth that investigations have ceased against D2, continued to republish to the residents of the Estate the allegation that D2 remains the subject of ongoing criminal investigations, and that they did so with malicious intent.

91.  To that end, Mr Deng invites this Court to take into considerations of the “flow of events” which he has divided into “6 stages” and summarized in §§15(1) to (6) of D2’s Submissions.

92.  They are summary of series of events which took place between April 2018 and October 2020. Those events can be found in the chronology of which I have already set out under section B above. I do not intend to repeat them here.

93.  Based on those “6 stages” of flow of events as summarized by Mr Deng in D2’s Submissions, D2 claims that the following facts as to the knowledge of P1 (as known personally by P2 – P4) are undisputable and are corroborated by objective and documentary evidence:-

(1) At stage 1 & 2 (between April and October 2018), and prior to or when P1 - P4 was making the report to the Police and the ICAC, and when making the 2^nd and 3^rd Defamatory Words, they would have known the following:-

(a) The true circumstances and dates in which P3 and P4 invited D2 to join the 11^th MC, the forms he signed, and whether the forms they filed with the Land Registry are true as required under Schedule 2 §4(3)-(6) of the BMO;

(b) The actual dates and how D2 disclosed to P3 and P4, ie by July 2017 that he was not in fact a registered owner and therefore not eligible to be elected as a voting member of the 12^th MC; and

(c) Whether there was another committee member, ie Mr Lee Moon Sing of the 11^th MC, who ceased to be an owner of the Estate by selling his flat on 1 November 2016, and was therefore ineligible to vote or continue as a voting member under Schedule 2 § 4(2) but continues to vote in his capacity as a voting member in all subsequent meetings;

(2) By Stage 3 (ie from October 2018 to 18 March 2019), P1-P4 would have been informed by both the Police and the ICAC that their complaints against D2 could not be substantiated, and that the investigations and case against D2 had been closed:-

(a) D2 relies on the Police’s website on “Rights of Victims and Witnesses of Crime” which provides that victims have a duty to be informed of the progress and result of the investigation expeditiously;

(b) That the Police and ICAC have a duty to provide information of investigation and prosecution to the victims of crime under §5 of the Victim’s Charter; and

(c) That the duty under the Victims Charter is mandatory as the word “shall” has been used;

(3) By Stage 4 & 5 (ie May 2019 to July 2020), P1-P4 had been put on notice by D2 that the Police investigations had been closed. Notwithstanding that the Police and the ICAC would have informed P1-P4, D2 says that they had a duty to take reasonable steps to find out the truth of the matter and the progress of investigation, which they have a right to do so, but instead they continued to repeat and republish the same allegations, and worse still, introduced at Stage 4 (ie from May 2019 to 19 September 2019), specific allegations that when D2 left the IO, he had hacked and destroyed the data of P1 and P3 and attempted to do so against P2 but failed.

(4) By Stage 6 (ie July 2020 to October 2020), D2 says that P1-P4 were expressly put on notice by D2 through his solicitors threatening to commence injunctive proceedings against them unless they ceased their conduct and provided suitable undertakings or assurances. D2 repeatedly asked P1-P4 to cease and desist republishing allegations that he was still being investigated by the authorities, and P1-P4 refused and asserted that inter alia the words were not defamatory and they had no obligation to give an undertaking. D2 also claims that the first time in which P provided any form of assurance that the complained words not be repeated was when they had filed the 2^nd affirmation of P2 on 11 September 2020.

C.2 Legal principles involved

C.2.1 Legal principles concerning injunctive reliefs to restrain

94.  D2 submits it is trite that the Court has jurisdiction to exercise its discretion to restrain publication of libel through injunction. In Bonnard v Perryman [1891] 2 Ch 269, it is established that the Court will only grant an interim injunction for defamation proceedings where:-

(1) The statement is unarguably defamatory;

(2) There are no grounds for concluding the statement may be true;

(3) There is no other defence which might succeed;

(4) There is evidence of an intention to repeat or publish the defamatory statement.

95.  Mr Deng further elaborates the above principles in the following ways under those 4 requirements which I shall briefly summarize below.

(1) Unarguably defamatory and criminal allegations

96.  Mr Deng submits that it is quite clear that the Statements complained of are unarguably defamatory. According to D2, it is important to note however that the allegations in this are of a special nature, namely, criminal allegations.

97.  Gatley on Libel and Slander (12th edition) (“Gatley”) at §11.13 explains the 3 levels of defamatory meanings identified in Lewis v Daily Telegraph [1964] AC 234 and later in Chase v News Group Newspapers [2003] EMLR 11, namely, that:

(1) The claimant is guilty of some impugned behaviour (Level 1);

(2) That there are reasonable grounds to suspect that the claimant is guilty of the impugned behaviour (Level 2); or

(3) That there are grounds for investigating whether the claimant is guilty of the impugned behaviour (Level 3).

98.  Further, in Gatley at §3.28 in footnote 315, it was stated that “(A) statement which directly says that the claimant has committed a crime must be justified in that sense even if it is accompanied by a statement that inquiries into the case are in progress”.

99.  More importantly, where criminal allegations are made, and when there are indications (as in this case) that what the publisher is about to publish might not be true, the failure to enquire is evidence of recklessness or wilful blindness from which the Court can infer malice. See Gatley at §17.16 at p 749, citing from the Australian High Court case of Roberts v Bass 212 CLR 1 at §84.

(2) Truth and comment

100.  While each case will turn on its own facts, Mr Deng submits that this Court has in the past granted interim injunctions against persons making criminal allegations which provide useful illustrations.

101.  In Law Kin Man Freeman v Chan Kin Hung (unrep., DCCJ 4563/2007, 3 December 2007), the defendant sent letters to the employer of the claimant which contained defamatory words stating that the plaintiff had engaged in criminal and money laundering activities. The plaintiff sought an interim injunction to stop further publication of such letters and statements. Her Honour Judge Mimmie Chan (as she then was) applied the Bonnard v Perryman test in §§21, 37-49. In particular, the Court held that:

(1) There is no material distinction between the statement that the claimant carried out criminal and money laundering activities and had received unlawful benefits in his dealings, and the statement that the defendant had reason to believe that the claimant had carried out criminal money laundering activities (see §41);

(2) If the defendant relies on the defence of justification, the defendant has to prove not that his belief was true, but must justify it by proving the fact of commission of criminal acts and the fact of the claimant’s receipt of unlawful benefits from his dealings (see §41);

(3) If the defendant relies on the defence of fair comment, the relevant statements have to be recognizable as comments. Any matter which does not indicate with a reasonable clearness that it purports to be comment, and not statement of fact, cannot be protected by the plea of fair comment (see §42); and

(4) Even if the plea of fair comment is available to the defendant, he must prove that the statement of opinion is based on facts which are truly stated and an honest, fair-minded man, however prejudiced he might be or however exaggerated or obstinate his views, would have honestly formed the opinion or come to the conclusion, on the facts stated in the letters, that the defendant had engaged in criminal activities (see §44).

102.  As such, for the present case, Mr Deng submits that, if P1-P2 rely on:-

(1) the justification defence, they have to prove not a subjective belief that D2 is still under investigation by the Police, but must justify it by proving that he is still under investigation by the Police for any of the crimes which they reported him for; and

(2) the fair comment defence, they have to prove to the Court that they were merely stating that in their opinion, D2 is still under investigation by the Police for the crimes which they reported him for.

103.  According to Mr Deng, justification will fail if there is no proof that D2 is still under investigation (of which the letters from the ICAC and the Police are conclusive).

104.  Fair comment will fail if it is shown that P1-P2 have been asserting as a fact, D2 is still under investigation by the authorities (a fair reason of the Statements is clear that they contained factual assertions and not comments).

(3) Qualified privilege

105.  D2 admitted that, prima facie, the posting of notices by an IO to the residents of an estate attracts qualified privilege. However, D2 contends that the acceptance here does not mean that as a matter of trial, each and every type of notice has the quality of qualified privilege, specifically the 「闡述」 Notices which are clearly a platform for P3 to share his private views and thoughts, without the need to go through the formalities of the MC meetings and resolutions to issue such notices to the residents of the Estate.

106.  However, D2 submits that would require a trial to explore this issue and so for the purpose of this Injunction Summons, and without prejudice to the aforesaid position, 「闡述」 Notices will be treated as attracting qualified privilege.

107.  Mr Deng further submits that qualified privilege protects not the publisher, but the occasion on which a statement is published. Therefore, it is trite that where the motivation for making a statement is malicious, this would amount to an abuse of the privilege and therefore the law will not confer protection to such statements.

108.  As pointed out by Mr Deng, the principles governing the role of malice in the defence of qualified privilege have been authoritatively set out in Jonathan Lu v Paul Chan Mo Po (2018) 21 HKCFAR 94, in particular at §§22-23:

“22. Where the purpose for which the privilege is accorded is consistent only with the communication of a matter which is believed to be true … the defendant’s knowledge that the matter was false at the time when he communicated it, or his recklessness as to whether it was true or false, will generally be conclusive evidence that he did not make the communication for a proper purpose: normally, that is the only inference which can reasonably be drawn …

23. Whether the defendant was reckless, in that sense, is again a matter of inference from the circumstances. The relevant circumstances can include not only what the defendant said or did, but also what he did not do. This point was made by Gleeson CJ in the Australian case of Roberts v Bass (2002) 212 CLR 1, para 15:

“It may be, for example, that if a person publishes an allegation of serious impropriety or unfitness about another, in circumstances where community standards would recognise a moral obligation to make an attempt to ascertain the truth beforehand, and the person has no idea whether the allegation is true or false, it is open to conclude that the person is recklessly indifferent to the truth or falsity of the allegation, within the meaning of what was said in Horrocks v Lowe. That is a question of fact.”” [emphasis added]

109.  The recent decision Yu Sau Ning Homer v Wong Wan Keung & Ors (unrep., DCCJ 313/2016, 17 March 2020, HH Judge Winnie Tsui) concerns also dispute between parties that are members of management committees (the plaintiff was represented by one of the counsel of Ps in the present case).

110.  HH Judge Winnie Tsui in §§309-310 observed that:-

“309. Malice can be inferred from the defendant’s conduct at any time, whether before or after publication. His actions during the course of litigation and his demeanour and attitude at trial may be relied upon as indicative of malice. The pleading of the defence of justification may be evidence of malice but it is probably only applicable where the defence is put forward recklessly, or with knowledge that it is unsustainable: Lee Ching v Lau May Ming [2007] 3 HKLRD 623 at para 201.

310. Overt hostility displayed by the defendant towards the plaintiff may also indicate malice. Where the defendant has lied whilst giving evidence, it may support a finding of malice but caution should be exercised in this regard: Lee Ching at paras 203-204. If a party verifies a pleading which he does not believe to be true, that will be potent evidence of malice: Gatley at para 32.45, footnote 200.” [emphasis added]

111.  HH Judge Winnie Tsui accepted that some letters contained defamatory wordings which bear the meanings pleaded by the plaintiff, namely that they speak to the plaintiff’s illegal conducts in an election campaign and at and after an original owner’s meeting which are defamatory of the plaintiff (see §§292-293, 297). Judge Tsui also found that malice is established (see §312).

112.  In particular at §315, it was held that communications for the genuine purpose of sharing information which the owners had a common interest to know would be regarded as given on a privileged occasion. However:

“… that does not mean that the defendants could say whatever they wanted with no consequence. The communication would only be privileged if it was made for the proper purpose. Here, the defendants held no honest belief in what they were communicating or they did not care whether the words were true or not. In fact, their motive was to injure the plaintiff and attack his integrity. They are therefore not entitled to the protection which would otherwise be available to them on such an occasion. Their defence of qualified privilege must fail.” [emphasis added]

113.  D2 gives another example in Leung Chi Ching Candy v Yeung Hon Sing (unrep., DCCJ 5079/2015, 15 November 2019, Deputy District Judge Vincent Lung), which concerns a libel claim brought against the chairperson of the management committee of the incorporated owners of Cheerful Garden. The dispute regards the defendant’s publication of 6 articles which were about how the renovation project was once handled during the term of the plaintiff’s office. The case turned to the issue of whether D had a valid defence and whether P could establish malice to rebut D’s defence of qualified privilege and/or honest comment.

114.  In Leung Chi Chong Candy, supra, the defendant further relied on section 29A of the BMO. On this point, the Court held that the statutory defence adds nothing to the defences of qualified privilege and honest comment (at §53), and that it is only applicable where a defendant acts in good faith and in a reasonable manner (at §§182-183).

115.  Acknowledging that the communications between the incorporated owners or the management office and the owners regarding the management and administration of the affairs of the estate are capable of being covered by qualified privilege, the Court held at §124 that the defence of qualified privilege was defeated by malice:

“124. My analysis on the defendant’s dominant purpose of publishing the 6 articles begins with the undeniable fact that the purpose for which the privilege is accorded is only consistent with the communication of a matter which is believed to be true. As such, the defendant’s knowledge that the matter was false at the time when he communicated it, or his recklessness as to whether it was true or false, is (at least) compelling evidence that he did not make the communication for a proper purpose: Jonathan Lu at §22.” [emphasis added]

116.  As such, D2 submits that while the finding of malice is fact sensitive, it is not a matter which is precluded from at an interim stage if there is strong and overwhelming evidence of malice from the objective evidence.

(4) Risk of Republication

117.  Finally, Mr Deng submits that one has to consider the legal principles regarding risk of republication. The mere fact that there is a belated statement suggesting that no further publications of such nature would be made until trial (ie in this case by P2 and confirmed by P3 and P4) is really neither here nor there, according to D2. This is because such a statement does not attract any automatic sanction if it is not followed through with, and the court does not simply look at a sworn statement and accept it lock, stock, and barrel.

118.  Instead, the courts have established precedent that may be necessary, even at the interim and interlocutory stages, to consider whether there is a real risk of republication based on previous conduct.

119.  Au Yee Ming Ivan v Ng Fei Tip (unrep., DCCJ 4595/2008, 25 August 2010, Deputy District Judge Kent Yee), an action was brought by the plaintiff (the chairman of the management committee of the building) against the defendant (the secretary of the management committee and chairperson of the incorporated owners) for an alleged slander spoken at an owners’ meeting held on 21 June 2008. In that case, the District Court granted an injunction in favour of the plaintiff.

120.  The court found risk of republication based on the defendant’s hostile behaviour towards the plaintiff in the past:

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

156. Given the obvious hostility of [the defendant] against [the plaintiff], her intransigent attitude about the Statement and her tendency to make accusations causally against [the plaintiff], I find it appropriate to exercise my discretion to grant the injunction sought by Au [the plaintiff].” [emphasis added]

121.  In Law Kin Man Freeman, supra, the court also found risk of republication based on the respondent’s hostile behaviour towards the applicant in the past:

“33. Nor do I regard any of the facts alleged to be material non-disclosure or misrepresentation as being relevant to the question of whether there was intention to repeat the defamatory statements contained in the Letters. Mr. Chan's conduct of instructing debt collectors in 2006, and his acts on 20 August 2007 and 12 October 2007 clearly evidenced an intention to repeat the defamatory statements contained in the Letters. The letters of authorization signed by Mr. Chan on 12 October 2007, copies of which were given to Mr. Law on the same day, confirmed that the Kwoks had been instructed to claim the debt of HK $700,000 from Mr. Law, and the manner in which the Kwoks carried out and are likely to continue to carry out their instructions is demonstrated by the events of 12 October 2007. In my judgment, there is clear evidence of intention to publish or repeat the defamatory statements.” [emphasis added]

C.2.2 Issues which have to be decided by the Court

122.  According to Mr Deng, the sole issue which the Court to decide for the purpose of the Injunction Summons can be defined as follows:-

(1) Whether on a proper construction of the Statements, in which the complaint therein has the ordinary meaning or imputation or implication that D2 remains currently a person of interest and is the subject of ongoing criminal investigations by government authorities in respect of the various criminal allegations set out in Section B above;

(2) If so, whether there are no grounds for concluding the statement may be true;

(3) If so, whether those statements are comment;

(4) Notwithstanding the above, whether or not they were published with malice or recklessness as to the truth; and

(5) Whether there is evidence of an intention to repeat or publish the defamatory statement.

C.2.3 D2 says the Statements are unarguably defamatory

123.  Mr Deng submits that the Statements are unarguably defamatory.

124.  He submits that when construing the Statements, it is important to bear in mind that the Statements themselves refer to previous notices and proviso events which forms the context in which the Statements were published. He gave detailed examples of that in his submissions of which I will not repeat them here (See §48 of D2’s Submissions).

125.  In relation to the “lost IO documents” (有法團文件被「遺失」), D2 says that the imputation of guilt is further reinforced by the 3^rd P2’s affirmation at §34.4[79], when P2 affirmed on oath that D2 deleted P3’s computer file in relation to P1’s affairs simply because D2 was responsible for purchasing and installing the hard disk for backing up P1’s data in its computer and that D2 was skilled in computing.

126.  D2 further says that the constant repetition and republication of the matters as late as on 7 July 2020 would further impute that:-

(1) D2 continues to be subject to criminal investigations in relation to his unlawful activities against P1; and

(2) D2 has committed not only civil wrongs but criminal wrongs.

127.  D2 submits that by 19 September 2019, when all criminal investigations had ended by March 2019 and, worse still, the end of the Police investigations was specifically brought to the attention of P1 and P2 in the D&CC, neither P1 nor P2, who would have been put on notice, would have any excuse to say that D2 was still the subject of investigation by the Police.

128.  To me, it is rather odd that, D2 would rely on a single averment contained in a 68-page (145 paragraphs) pleadings, namely, D2’s D&CC, to say that P1 and P2 must have received notice that the Police investigations against D2 had completed. It is also rather odd that D2 would rely on Ps’ bare denial and the lack of application or request for further and better particulars as “evidence” that they must have accepted the fact that the Police investigation had completed.

C.2.4 D2’s claims that no defence of justification or fair comment would succeed

129.  Based on the reasons further expanded in D2’s Submissions[80], Mr Deng further submits that no defence of justification or fair comments would succeed at the trial.

C.2.5 D2 claims that the Statements contained in notices sent to residents of the Estate were issued with malice

130.  D2 while accepts that any communication with a genuine purpose of sharing information which the owners of the Estate had a common interest to know, is rightly regarded as an occasion which accorded qualified privilege, he contends that the issue in the Injunction Summons is whether or not the Statements were made with such purpose or was actuated by malice.

131.  Mr Deng has expanded his submissions on the issues of qualified privilege and malice in his written submissions (See §§63-71 of D2’s Submissions) and in court. I do not propose to repeat them here save perhaps to note that in my view it is perhaps an over simplification of the issue of malice. I shall deal with this in greater detail under my findings below.

C.2.6 No statutory defence under section 29A of the BMO

132.  D2 also argues that due to P2’s lack of good faith and did not act in a reasonable manner in making the Statements, the section 29A’s statutory defence under BMO would not succeed as the test is “materially identical to one of qualified privilege and malice.”[81]

C.2.7 Ps’ strong risk of republication and utility

133.  Mr Deng further contends that based on the past conduct and obvious hostility displayed by Ps towards D2, there is a risk of republication[82]:

134.  Mr Deng further submits that even if the Court is of the view that there is no high risk of republication, there are practical utility for an injunction including factors like D2’s family and extended family live on the same Estate; D2 has been suffering from “serious mental stress” because these statements are being read by his neighbours, friends and relatives; D2 has been suffering from serious reputational damage due to the prolonged and repeated accusations and insinuations that he is under criminal investigations; the existing public health situation; and the fact that due to the volume of materials which need to be considered at trial will not be heard within a reasonable time[83]:

C.2.8 Delay should not prevent granting of an injunction

135.  Lastly, Mr Deng submits that the delay in taking out the Injunction Summons should not be fatal to D2’s application:-

(1) Due to the recent repetition of the defamatory statements on the part of Ps;

(2) The alleged irreparable damage caused to D2’s “already damaged reputation and mental health”; and

(3) The delay would not constitute an abuse of process.

D. P1 & P2’s submissions and findings of the Court

136.  Having read and heard the submissions of the parties, I do not find this is an appropriate case where an interlocutory injunction should be granted.

137.  I do not find the arguments of D2 convincing at all both as a matter of law and on the evidence to justify the Court in granting an interlocutory injunction at this stage of the proceedings.

138.  Having studied and considered the submissions of Mr Lawrence Ng (appearing with Mr Howard Wong) who represented P1 and P2 in the Injunction Summons, I much prefer their arguments.

139.  I shall set out the crux of P1 & P2’s submissions below and the reasons why I prefer P1 & P2’s case than that of D2’s below.

D.1 Starting point of granting interlocutory injunction in defamation cases

140.  To start with, as Mr Ng submits (which D2 accepts), the conventional principles for the grant of interlocutory injunction established in American Cyanamid are not applicable to defamation cases. Instead, the authorities are clear that the court will not grant an interlocutory injunction to restrain the publication of allegedly defamatory statements unless the applicant satisfies the 4 criteria stipulated in Bonnard v Perryman (see §94 hereinabove). See also: Chan Shui Shing Andrew & Ors v Ironwing Holdings Ltd [2001] 2 HKC 376 at 378H-I per DHCJ Jeremy Poon (as he then was); Poon Ying Hon v CCT Telecom Holdings Ltd & Anor (unrep., HCA 3431/2001, 17 August 2001) at §27 per Recorder J. Leong SC; Gatley on Libel and Slander (12^th Ed.) at §25.2.

141.  I have no hesitation in accepting the above well-established criteria as the guiding principles in determining whether an interlocutory injunction should be granted in a libel case.

142.  In this case, Mr Ng submits that the Injunction Summons ought to be dismissed because D2 is unable to show any of the above conditions are satisfied.

143.  While I would not go as far as saying that the D2 has failed to show any of the above conditions are satisfied as submitted by Ps, there certainly are in my judgment a lot of gaps in D2’s case which he has failed to fill. In particular, I find D2 has failed to establish that (i) there are no other grounds which Ps might succeed in their defence; and (ii) that D2 has successfully able to establish that there is evidence to show that Ps have the intention to repeat or publish the defamatory statement.

D.2 Legal principles: extremely high threshold for obtaining an interlocutory injunction in defamation cases

144.  I accept Mr Ng’s submission that, both English and Hong Kong courts have consistently imposed an extremely high threshold for obtaining an interlocutory injunction for restraining the publication of allegedly defamatory statements. The jurisdiction is of a “delicate nature” which ought only to be exercised in the “clearest cases”: See Andrew Chan, at 378F-G per Deputy Judge Jeremy Poon (as he then was), applying Coulson v Coulson (1887) 3 TLR 846, per Lord Esher MR approved in Bonnard v Perryman [1891] 2 Ch 269 at 284, where Lord Coleridge said:

“…But it is obvious that the subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions…”. [emphasis added]

See also Gatley at §25.2.

145.  In Coulson v Coulson (1887) 3 TLR 846 at 846, Lord Esher MR stated:

“… the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where if the jury did not so find the court would set aside the verdict as unreasonable. The court must also be satisfied that in all probability the alleged libel was untrue, and if written on a privileged occasion that there was malice ... It followed ... that the court could only on the rarest occasions exercise their jurisdiction.” [emphasis added]

See also Gatley at §25.2.

146.  The stringent application of the jurisdiction to a plaintiff was described in Target Newspapers Limited v Narain [1989] 2 HKC 16 (at 23G per Macdougall JA) as “the extremely difficult hurdle he must clear in order to obtain interlocutory injunctive relief - a task that almost invariably is greater than that which a plaintiff in a libel action must face at the trial itself.”. Also applied in Poon Ying Hon at §29.

147.  In Greene v Associated Newspapers Ltd [2005] QB 972 (the leading case in the modern era – see Gatley at §25.2 fn.8), Brooke LJ said (at §57): -

“… in an action for defamation a court will not impose a prior restraint on publication unless it is clear that no defence will succeed at the trial. This is partly due to the importance the court attaches to freedom of speech. It is partly because a judge must not usurp the constitutional function of the jury unless he is satisfied that there is no case to go to a jury. The rule is also partly founded on the pragmatic grounds that until there has been disclosure of documents and cross-examination at the trial a court cannot safely proceed on the basis that what the defendants wish to say is not true. And if it is or might be true the court has no business to stop them saying it. This is another way of putting the point made by Sir John Donaldson MR in Khashoggi v IPC Magazines Ltd [1986] 1 WLR 1412, to the effect that a court cannot know whether the plaintiff has a right to his/her reputation until the trial process has shown where the truth lies. And if the defence fails, the defendants will have to pay damages (which in an appropriate case may include aggravated and/or exemplary damages as well)”. [emphasis added]

148.  In Church of Scientology v Reader’s Digest [1980] 1 NSWLR 344 at 349F, Hunt J observed that “I accept as the settled law that the power to grant interlocutory injunctions in defamation cases must be exercised with great caution, and only in very clear cases” [emphasis added]. Hunt J’s judgment in Church of Scientology, supra, “could also be regarded as a succinct summary of English law”: Gatley, §25.2 at fn.11.

149.  I consider Mr Ng must be right in saying that the reluctance of the Courts to grant peremptory injunctions is rooted in the importance attached to the right of free speech, and the consideration that damages are liable to be an adequate remedy: see Greene (supra) at §57. As Griffiths LJ (as he then was) said in Herbage v Pressdram Ltd [1984] 1 WLR 1160 at 1162H: -

“These principles have evolved because of the value the court has placed on freedom of speech and I think also on the freedom of the press, when balancing it against the reputation of a single individual who, if wrong, can be compensated in damages.” [emphasis added]

150.  In Hong Kong, freedom of speech is guaranteed by Article 27 of the Basic Law.

151.  I accept that these are the principles which I should apply in determining whether I should grant any interlocutory injunctive reliefs to D2 under the Injunction Summons. In short, the Court should be very slow in granting interlocutory injunctive reliefs in a defamation case due to its delicate nature and the protection of freedom of speech under the Basic Law.

152.  In our present case, I am not satisfied that an interlocutory injunction should be granted without D2’s evidence being tested by cross-examination by Ps at the trial. Given the serious disputes amongst the parties on the evidence, in particular whether P1 and P2 actually had received written notice that the investigation by the authorities against D2 had been completed, this is in my view not an appropriate case where the matter should be disposed of by way of an interlocutory injunction.

D.3 D2 has failed to discharge the burden of proving that there is no other defence which might succeed

153.  The second reason why I think I should dismiss D2’s Injunction Summons is that, in my judgment, D2 has failed to discharge the burden of proving that there is no other defence which Ps might succeed. In my view, I agree with Mr Ng that the last minute concession by D2 that Ps are entitled to rely on the defence of qualified privilege really ought to put an end to this matter.

154.  As Mr Ng has rightly pointed out, under the rule in Bonnard v Perryman, one of the conditions which D2 must satisfy is that there is no other defence which might succeed.

155.  What is not disputed is that, in this application, D2 only relied on 2 publications, namely, the 17 December 2019 Statement and the 7 July 2020 Statement[84]:-

(1) The 17 December 2019 Statement was first issued by P3 to all members of the 12^th MC (including all Ds) in the form of a WhatsApp message on 14 April 2018[85], more than 2 years and 3 months before the issue of the Injunction Summons and of which D2 made no complaint whether contemporaneously or in the D&CC. The 14 April 2018 WhatsApp Message was subsequently attached to a “法團會務闡述 (34/19-17/12/2019)” titled “法團被誹謗案的6 個‘為什麼?’” issued by the IO on 17 December 2019[86], ie the 17 December 2019 Statement of which D2 similarly made no complaint at all; and

(2) The 7 July 2020 Statement was contained in a “法團會務闡述 (07/20 – 2020/07/07)” titled “法團及委員被誹謗案的進展” issued by the IO on 7 July 2020[87], the contents of which speak for themselves and are set out in §§37(6)(e)-(f) of P2’s 3^rd affirmation[88].

156.  I noted that D2 had said nothing about the defence of qualified privilege whether in his 1^st affirmation or in D2’s Submissions[89] while Ps devoted 7 paragraphs in Section 4.1 of his 2^nd affirmation[90] on the point that each of the 17 December 2019 Statement and the 7 July 2020 Statement were published on an occasion of qualified privilege. These include: -

(1) Reliance on sections 18(2)(g) and 26A of the BMO (see §38 of P2’s 2^nd Aff[91]);

(2) The fact that the 17 December 2019 Statement and the 7 July 2020 Statement were made in fulfilment of the IO and P2’s duty owed to the owners, whether moral, social and/or legal, and/or that the owners had a common interest in being notified of the matters therein: (see §39 of P2’s 2^nd affirmation[92]); and

(3) P2 has an eminently arguable defence pursuant to section 29A of the BMO: (see §41 of P2’s 2^nd affirmation[93]).

157.  I agree with Mr Ng that Ps’ case on this point is well supported by authorities: see Jonathan Lu v Paul Chan Mo-Po (2018) 21 HKCFAR 94 at §14 per Lord Reed NPJ; Multi-Winner Investment Limited v Lau Ming Yee [2017] 1 HKLRD 328 at §69 per David Lok J.

158.  I further agree with Mr Ng that it was only in §52 of his 3^rd affirmation[94], that D2 has, in sharp contrast to his complete silence on the defence of qualified privilege (and malice) in D2’s Submissions and his 1^st affirmation, made an eleventh hour concession that “IO notices are usually protected with qualified privilege”: (see §52 of D2’s 3^rd affirmation[95]). This express concession is repeated in §28 of D2’s Submissions: “It is admitted that prima facie, the posting of notices by an IO to the residents of an estate attracts qualified privilege”.

159.  I agree with Ps that D2’s concession that the IO notices are protected by qualified privilege could be fatal to his application because the Court will not normally grant an interim injunction where the “threatened publication” will on its face be privileged: Gatley, at §25.8.

160.  In Harakas v Baltic Mercantile and Shipping Exchange Ltd [1982] 1 WLR 958, Lord Denning MR, in approving Quartz Hill Consolidated Gold Mining Co v Beall (1882) 20 ChD 501, said (at 960F-G): -

“ … when an occasion is protected by qualified privilege this court never grants an injunction to restrain a slander or libel – to prevent a person from exercising that privilege – unless it be shown that what the defendant proposes to say is known by him to be untrue so that it is clearly malicious. So long as he proposes to say what he honestly believes to be true, no injunction should be granted against him.”. [emphasis added]

161.  I further agree with Ps that, in the present case: -

(1) There is no “threatened publication” of the words complained of by D2 because P2 had confirmed on oath that Ps had “no intention to further publish the words complained of by D2 until after the trial of this Action”: (see §44 of P2’s 2^nd affirmation[96]); and

(2) There is no question of whether what Ps “propose to say is known to him to be untrue so that it is clearly malicious” because Ps do not propose to “further publish the words complained of by D2 until after the trial of this Action”: (see §44 of P2’s 2^nd affirmation[97]).

162.  In the aforestated premises, I am of the view that D2’s application should be dismissed on the ground that he has failed to discharge the burden of proving that there is no other defence which might succeed.

D.4 D2 failed to discharge his burden of proving that there is a threat or an intention to publish the words complained

163.  On the evidence relied on by D2 in the application, I further find that D2 has failed to discharge his burden of proving that there is a threat or an intention to publish or further publish the words complained of on the part of Ps.

164.  Lord Denning’s judgment in Harakas underscores the fact that the jurisdiction is to restrain future publication when there is an imminent threat or an intention to do so; conversely if there is no imminent threat or an intention to publish allegedly defamatory statements, the Court will not intervene before the trial.

165.  Under the rule in Bonnard v Perryman, one of the other conditions which D2 must prove is that there is evidence of a threat or an intention to publish the allegedly defamatory statement. In this respect, Mr Ng submits that the law is clear:-

(a) In Quartz Hill Consolidated Gold Mining Co v Beall (1882) 20 ChD 501 Jessel MR said (at 508-509): -

“…The injunction is to restrain future publication. Now the circular in question has been issued to all the shareholders; there is no allegation either on the writ or the statement of claim, or the affidavit of any intention on the part of the Defendant to issue any more circulars, nor can I infer such intention, because it is alleged that he has issued the circular to all the shareholders. There is no ground, therefore, for interference. The act is past, the mischief has been done, if mischief there is, and there is no ground for the intervention of the Court before the trial. It appears to me this also is a fatal objection to the motion.” [emphasis provided]

(b) Gatley states (at §25.26) that: -

“This means in practice that the intended claimant is required to demonstrate with evidence that there is an imminent threat of the publication of defamatory allegations likely to cause serious harm or damage.” [emphasis added]

(c) Clerk & Lindsell on Torts (23^rd Ed.) states at §21-253:-

“… there must be an urgent need for the injunction, and if the defendant has indicated that it does not intend to publish the defamatory material, an injunction is likely to be refused.” [emphasis added]

(d) In Martin v Channel Four Television Corp [2009] EWHC 2788 (QB), Eady J (at §28) dismissed an application for an interlocutory injunction in a defamation case when the defendant had indicated that it did not intend to publish the defamatory statement and thus there was no threat or current intention to publish.

166.  The major problem I find with D2’s case in this respect is that he had waited for over 2 years and 3 months since the first time when the words complained of were published by Ps before he took any actions.[98] After those allegedly defamatory statements were repeated in P1’s notices to the residents of the Estate, D2, who despite having received letters from both the Police (dated 27 February 2020)[99] and the ICAC (letter dated 18 March 2019)[100] notifying him that the investigations against him of the matters complained of had ceased, he failed to inform Ps about such crucial matters.

167.  While it is not disputed that the redacted version of those letters were first disclosed by D2 under the 1^st affirmation of D2 when it was filed on 6 August 2020, the un-redacted copy of those 2 letters were only provided to Ps at the beginning of the first day of the hearing on 30 December 2020. I agree with Mr Ng that had D2 disclosed those 2 crucial letters to Ps soon after he had received them, there was no need for him to issue the Injunction Summons at all. Instead, by deliberately tried to hide those letters from Ps, D2 allowed Ps into believing that the investigations carried out by the Police and the ICAC against him were still ongoing. In my view, D2 cannot on one hand says that Ps have imputed knowledge of the notices from the Police and the ICAC and therefore possess the intention to publish those alleged defamatory statements in future unless restrained by an injunction order of the Court while on the other hand deliberately withheld the unequivocal evidence that those investigations had in fact been ceased. In other words, he cannot blow hot and cold on this matter. He simply cannot have his cake and eat it. In my judgment, he only has himself to blame if he chose to be deliberately evasive about this matter.

168.  Further, I agree with Mr Ng that the evidence revealed in this case shows that D2 has failed to discharge the burden of proving that there is an “imminent threat” or an intention on the part of Ps to publish the words complained of by D2 and that such failure is fatal to his application:-

(1) P2 confirmed on oath that Ps have “no intention to further publish the words complained of by D2 until after the trial of this action”:(see §44 of P2’s 2^nd affirmation[101]);

(2) That Ps had no intention to publish the words complained of by D2 is confirmed by the indisputable fact of this case - that for a period of over 4 months from the initial hearing, ie on 14 August 2020 to the date of the hearing on 30 December 2020, Ps had not published the words complained of by D2;

(3) D2 has produced no evidence to show that there is an “imminent threat” or an intention on the part of Ps to publish the words complained of by D2;

(4) There is absolutely no basis for D2’s bare assertion that “the evidence of P2 is not worth the paper it is written on, especially his assertion of no further republication” (see §85 of D2’s Submissions). I accept that this is a pure speculation on the part of D2 and is unsupported by evidence; and

(5) While D2 correctly concedes that “P2 has stated that he would not repeat the Statements complained of”: (see §83 of D2’s Submissions), there is in my view no basis for D2’s submission that there has been a “hostile track record”, or that this is “of little comfort to D2 and the court, bearing in mind the aforesaid hostile track record”. In my judgment, if there is any “hostile track record” at all, this is certainly not a one-way traffic. I find there are equally “hostile actions” on the part of D2 (together with other Ds) throughout this long and bitter saga between the parties. Bad blood can be found to have existed between the parties for years (as the chronology of events have amply demonstrated) and D2 cannot in my view isolate one of the incidents and amplify that to suit his needs.

D.5 D2 should not be allowed to run the point of malice on this interlocutory application

169.  It is clear that, in a desperate attempt to salvage his application, D2 raised the allegation of malice, for the first time, in his 3^rd affirmation.

170.  Mr Ng submits that, as a preliminary point, the Court should not, as a matter of principle, allow D2 to run the point of malice in this application. D2 only raised this allegation for the first time in his reply evidence filed on the deadline of an unless order, and Ps did not have an adequate opportunity to respond.

171.  I agree with P1 and P2’s submissions on this issue.

172.  It is well established that malice is a serious allegation and ought to be placed front and centre in the court documents and/or pleadings of the party seeking to prove the same. The fact that a party failed to expressly plead malice, or failed to plead malice specifically in response to the defence of qualified privilege, is sufficient to preclude the party from taking the point at trial.

173.  As A Cheung J (as he then was) held in Omar, Zarina v Chow Yee Ping (unrep., HCA 3699/2002, 24 September 2004) at §59:

“… It would be quite unfair to the Defendants to allow the Plaintiff to use what she has pleaded in relation to malice under unfair comment to establish a case of malice under qualified privilege. Whilst the lack of an honest belief might be an overlapping element in the two different meanings of malice under the two different defences, that does not necessarily mean that if the Defendants had known that malice would be alleged against them at trial in relation to their defence of qualified privilege, the conduct of their case, including their handling of the trial, must have been the same, or there was nothing they could have done to rebut the allegation of express malice…”

174.  A fortiori, I agree with Mr Ng that where (as in the present case) the applicant did not properly plead or allege malice in his first round of evidence, it is not sufficient for the applicant to argue that facts and matters which may be consistent with an allegation of malice have been put forward in that round of evidence. As Chow Yee Ping shows, to put forward such facts and/or matters is plainly not the same as an allegation of express malice (cf. §40 of D2’s 3^rd affirmation). I agree that Ps, as respondents in this application, are absolutely entitled to know, at the outset, (a) whether the applicant is relying on malice; and (b) what particular facts and matters the applicant is relying on to prove such malice.

175.  As D2 only “slipped in” the allegation of malice, for the first time, by the backdoor in his 3^rd affirmation and it was filed on the deadline of an unless order, Ps simply did not have sufficient time to give a proper and detailed response to that allegation. I agree with Mr Ng that it is plain that the evidence would have taken a very different course if D2 had expressly raised the issue of malice in his 1^st affirmation. Again, by not putting all his cards on the table, D2 has only himself to blame.

176.  In the circumstances, I would not allow D2 to introduce the allegation of malice in the last minute in his application.

D.6 Malice is a highly fact-sensitive issue which should best be left for the trial

177.  Further, as Ps have submitted, malice is “a subjective test, entirely dependent on the defendant’s state of mind and intention” (see Loveless v Earl [1999] EMLR 530 at 538 per Hirst LJ), it is highly fact-sensitive and pre-eminently unsuitable for determination on disputed evidence on affidavit in an interlocutory application. In this regard, I accept Ps’ submission that the law in this area is clear and are supported by the following authorities: -

(1) In Quartz Hill, Jessel MR said (at 509): -

“The third ground is this, and a most important ground it is. The circular appears on the face of it to be in the nature of a privileged communication … As I said before, it may be answered that it is malicious and not entitled to protection, but that is very difficult to try upon interlocutory application. In the present case the Defendant says he is acting bonâ fide, and there is no evidence against him. But if there were, I think a Judge should hesitate long before he decides so difficult a question as that of privilege upon an interlocutory application, the circular being on the face of it privileged, and the only answer being express malice. Those are the questions which really cannot be tried upon affidavit, or in the mode in which an interlocutory application is disposed of. In the present instance I can see no sufficient reasons for taking the circular out of the protection of privilege …”. [emphasis added]

(2) Hunt J also observed in Church of Scientology at 349F-350A that:

“I accept as the settled law that the power to grant with great caution, and only in very clear cases. A plaintiff must establish that a subsequent finding by a jury that the matter complained of was not defamatory of him would be set aside as unreasonable; that there is no real ground for supposing that the defendant may succeed on any defence of justification, privilege or comment, and that he, the plaintiff, is likely to recover more than nominal damages. In particular questions of privilege and malice are not normally appropriate to be decided upon an interlocutory application.” [emphasis added]

(3) Clerk & Lindsell states at §21-207: -

“Where a defendant pleads qualified privilege the burden of proof will be on the claimant to prove malice in order to defeat the privilege. The process of proving what lay in a person’s mind can never be simple and in Horrocks v Lowe Lord Diplock warned courts to be ‘very slow’ in deciding that a defendant was totally actuated by improper motives on a privileged occasion”. [emphasis added].

(4) In a similar vein, Gatley states at §25.8: -

“the issue of malice is not one that can be conveniently tried on an interim application. It has been said that where a claimant must prove malice to succeed in the action the evidence of malice has to be ‘absolutely overwhelming’ for the court to intervene to restrain publication by way of an interim injunction”. [emphasis added]

178.  In fact, D2 expressly conceded that malice “is ultimately a question for trial”, although on D2’s submission this only applies to the statements published before 19 September 2019. As D2 expressly conceded (see §122 of D2’s 3^rd affirmation)[102]: -

“… whether they [i.e. Ps] are entitled to qualified privilege and were not malicious is ultimately a question for trial for statements made before 19 September 2019 and not this application before the Court.”

179.  Indeed, I agree with D2’s submission above and find whether there is malice on the part of Ps in this case is ultimately a question for trial and is not a matter suitable for the Court to determine as an interlocutory matter. However, with respect to Mr Deng, I do not see why a distinction between the pre-19 September 2019 statements and the post-19 September 2019 statements should be made. Once D2 accepts (as he must) that the issue of malice concerning the pre-19 September 2019 statements are “ultimately a question for trial”, it must follow that the issue of malice concerning the post-19 September 2019 statements should likewise be determined at trial after the viva voce evidence has been properly tested through cross-examination.

180.  Based on the above, I find that D2’s application must also be dismissed on this ground.

D.7 Legal principles on malice

181.  Even if I were to allow D2 to take the point of malice at the hearing, I agree with Mr Ng that I should approach D2’s belated evidence of malice with a substantial degree of circumspection, as Ps have been unfairly handicapped in the preparation of their evidence in response to this specific point.

182.  In this regard, Mr Ng has very helpfully provided the following summary of the legal principles in relation to the topic of malice of which I would respectfully adopt.

183.  First, the burden is squarely on D2 to prove that P1 and/or P2 published the 17 December 2019 Statement and/or the 7 July 2020 Statement with malice: Clerk & Lindsell on Torts (23^rd Ed.) at §21-207. In this regard, “honesty is presumed and the claimant has the burden of negativing it”: Gatley at §17.16 [emphasis added].

184.  In Horrocks v Lowe [1975] AC 135 at 149F-G, Lord Diplock explained the policy reason behind this rule as follows:

“… The protection [of qualified privilege] might… be illusory if the onus lay on [the defendant] to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved.” [emphasis provided]

185.  Second, even at trial, the evidence must cross an extremely high hurdle before the court may find malice. This is so for 2 reasons:

(1) Malice is by its nature a “very serious allegation”: Alexander v Arts Council of Wales [2001] 1 WLR 1840 at §18 per May LJ; Dorset Flint & Stone Blocks Ltd & Ors v Moir [2004] EWHC 2173 (QB) at §48 per Eady J (malice is a “serious allegation to make against anyone”); Gatley at §28.6 (“malice is a very serious allegation of intentional impropriety or bad faith”). As Gatley states at §17.2 (footnote 9), “alleging malice is the equivalent of alleging dishonesty”. It is trite that “the more serious the allegation, the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it”: A Solicitor v The Law Society of Hong Kong (2008) 11 HKCFAR 117 at 146C-149G per Bokhary PJ.

(2) The courts have emphasised that findings of malice are extremely rare even after trial and such a finding calls for cogent evidence which must overcome the inherent unlikelihood of the defendant acting dishonestly or with the dominant and improper motive to injure: -

(a) In Jonathan Lu, the CFA cited with approval (at §29 per Lord Reed) Lord Diplock’s judgment in Horrocks v Lowe that: -

“judges and juries should … be very slow to draw inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege …” (at 150H)

“juries should be instructed and judges should remind themselves that this burden of affirmative proof is not one that is lightly satisfied” (at 151D).

The CFA’s and Lord Diplock’s reminder to judges was made in the context of finding of malice in a trial after disclosure of documents and cross-examination of witnesses. They must apply a fortiori to disputed evidence on affidavit in an interlocutory application.

(b) In Hughes v Risbridger [2010] EWHC 491 (QB), Eady J stated (at §24) that “findings of malice are extremely rare, not least because they are tantamount to findings of dishonesty”. [emphasis added]

(c) In Henderson v Hackney [2010] EWHC 1651 (QB), Eady J similarly observed (at §33) that “findings of malice are extremely rare”. I agree with the Ps that findings of malice on disputed evidence on affidavits in an interlocutory application before there have been disclosure of documents and cross-examination in a trial is almost unheard in Hong Kong and in England. Jonathan Lu itself is concerned with a trial before a judge with a jury in which the jury’s verdict of malice was set aside by the Court of Appeal and on further appeal the Court of Final Appeal ordered a retrial on the issue of malice. Horrocks v Lowe itself is also concerned with a trial in which the judge’s finding of malice was set aside by the Court of Appeal and on further appeal the House of Lords affirmed the Court of Appeal’s decision.

(3) In Dorset Flint & Stone Blocks Ltd & Ors v Moir (supra), Eady J held (at §49) that “(A)llegations of malice, like allegations of fraud, need to be scrutinised with particular care to ensure that there is a sufficient evidential basis for alleging dishonesty or inviting such an inference.” [emphasis added]. Eady J’s observation was made in relation to pleadings (see §48 where his Lordship stated that “it is necessary to scrutinise the plea”). I agree with Ps that, unlike a plea of malice, allegations of malice on affidavit are invariably vague and imprecise, and such vague and imprecise allegations would deprive the court’s power of scrutiny which it otherwise would have in the case of a pleading. It would therefore be highly unsatisfactory for the court to determine this issue on affidavit evidence. Worse still, I agree that some of the allegations of malice cannot even be found in D2’s 3^rd affirmation at all but only appear for the first time in D2’s Submissions. This is doubly unsatisfactory and demonstrates the serious prejudice suffered by Ps.

186.  Third, in order to defeat the defence of qualified privilege, the applicant must discharge the burden of showing that the publisher made the statement for an improper purpose, and that the improper purpose was the dominant motive: Gatley at §17.7. As the Court of Final Appeal held in Jonathan Lu (at §18 per Lord Reed NPJ), citing with approval of Lord Diplock’s judgment in Horrocks v Lowe (at 149F-G):-

“he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved”. [emphasis provided]

In this regard, “where a person has published what he believes to be true, 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 … that ‘express malice’ can properly be found’” [emphasis added]: Jonathan Lu (at §18 per Lord Reed), citing with approval in Horrocks v Lowe (at 151B per Lord Diplock); see also Gatley at §17.7.

187.  The fact that the publisher knew that a statement to be made would injure the subject of that statement is not sufficient to deprive the publisher of the defence of qualified privilege. As Lord Diplock also said in Horrocks v Lowe (at 149G-H):

“[T]o destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests”. [emphasis provided]

188.  In the same case at 151A-B, the House of Lord further observed that:

“Qualified privilege would be illusory, and the public interest it is meant to serve defeated, if the protection 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”.

This case was applied in Jonathan Lu (at §18 per Lord Reed).

189.  Fourth, provided that the statement in question was honestly made, the maker of the statement is entitled to rely on the defence of qualified privilege even if he was motivated by “unreasoning prejudice” or had no reasonable basis for his belief, and even if he was careless and did not do sufficient research before making the statement:

(1) As the CFA held in Jonathan Lu (at §27 per Lord Reed), citing with approval of Lord Diplock’s judgment in Horrocks v Lowe (at 150B): -

“…what is required on the part of the defamer is positive belief in the truth of what he published or, as it is generally though tautologically termed, ‘honest belief’”. [emphasis added]

(2) Clerk & Lindsell states at §21-211 that:

“ … where a defendant honestly believes his statement to be true, he may not lose his privilege notwithstanding that he has no reasonable grounds for his belief, and even though his belief is induced by ‘gross and unreasoning prejudice’ with regard to the claimant” [emphasis added]

(3) Likewise, Gatley states at §17.17 that:

“If the defendant honestly believed his statement to be true, he is not to be held malicious merely because such belief was not based on any reasonable grounds; or because he has done insufficient research or was hasty, credulous, or foolish in jumping to a conclusion, irrational, indiscreet, stupid, pig-headed or obstinate in his belief…

If gross and unreasonable prejudice causes the defendant honestly to believe what a more rational or impartial person would reject or doubt he does not thereby lose the protection of the privilege”. [emphasis added]

(4) In Hughes v Risbridger (supra), Eady J stated (at §24):

“It is clear from the exposition of the law by Lord Diplock in Horrock v Lowe that malice is to be carefully distinguished from other states of mind such as carelessness, excessive zeal, pig-headedness, stupidity, or a failure to arrive at rational conclusions. In practice, a claimant has to demonstrate that the words were published without any honest belief in their truth or that the defendant was genuinely indifferent to their truth or falsity”. [emphasis added]

See also: Gatley at §17.17.

(5) The courts have recognised that it is unrealistic to expect everyday people to do meticulous research or think using strict rules of logic before coming to conclusions or making assertions of fact. As the Court of Final Appeal held in Jonathan Lu (at §28 per Lord Reed), citing with approval of Lord Diplock’s judgment in Horrocks v Lowe (at 150C-E):

“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 cast 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”. [emphasis added]

(6) Accordingly, it has been authoritatively stated that “[l]ack of care for the consequences of exuberant reporting is not malice”, and the law of qualified privilege “imposes no requirement that the defendant use the occasion carefully”: Gatley at §17.17.

190.  Applying the above principles, I accept Ps’ submission that D2 is clearly unable to show:

(1) that there is “absolutely overwhelming” evidence that the publication of the 17 December 2019 Statement and/or the 7 December 2020 Statement was actuated by malice and/or improper motive;

(2) that a desire to injure D2 was the “dominant motive” for the making of the 17 December 2019 Statement and/or the 7 December 2020 Statement;

(3) that Ps’ desire to perform their duties or protect the owners’ interest “played no significant part” in the making of those Statements; and/or

(4) that, notwithstanding the seriousness and highly fact-sensitive nature of an allegation of malice, this Court can decide on affidavit alone that the evidence supports a finding of malice.

D.8 Possible meanings of the 7 July 2020 Statement

191.  In relation to the 7 July 2020 Statement, although Ps’ primary position is that the statement did not refer to D2 by name and is therefore not defamatory of D2, I do not find that argument convincing at all. In my view, any residents of the Estate who are familiar with the affairs of the IO when reading the 7 July 2020 Statement would have no difficulty in associating the contents with D2 and that they were referring to D2.

192.  However, Ps’ position is that, even in the event that the Court finds the 7 July 2020 Statement actually referred to D2, in their natural and ordinary meaning, the words of that statement, in the context of the 7 July 2020 Statement as a whole, bore and were understood to bear the following meanings:

(1) That D2 made a false representation in the 11^th MC Forms and the 12^th MC Nomination Form to join the MC as a member;

(2) That there were documents belonging to the IO which were missing;

(3) That in order to protect the IO’s interests, the IO had reported the aforesaid matters to the Police;

(4) That in view of the previous conduct of the D2, the IO intends to commence civil proceedings against D2 in relation to his false representation, so as to complement this action for defamation/compensation (see §51 of P2’s 2^nd affirmation[103]).

193.  In my judgment, whether the 7 July 2020 Statement actually carries those meanings or not will be ultimately a matter for trial after the parties have the opportunity to cross-examine the witness(es). However, for the present purpose of deciding whether to grant any injunctive reliefs to D2, I am of the view that the 7 July 2020 Statement could perfectly capable of carrying those meanings in the context as put forward by Ps.

194.  Further, P2 confirmed that P1 and he honestly believed the aforesaid meanings to be true, both in substance and in fact (See §52 of P2’s 2^nd affirmation[104]). Ps’ honest belief in the truth of the 7 July 2020 Statement is allegedly supported in the following respects:

(1) It is indisputable that the 11^th MC was misled by and relied upon D2’s false representation to admit him as its member and that the members of the 11^th MC were misled by and relied on D2’s false representation to elect him to the position of Vice-Chairman of the 12^th MC.

(2) As a matter of fact, there were documents belonging to the IO which were missing. Specifically, despite Ps’ multiple requests and reminders to D2 demanding D2 to return various documents and things belonging to the IO, D2 dragged his feet and substantially delayed the return of those items to the IO. In fact, it was only after the 26 May 2018 EGM when the owners resolved to remove D2 from his office as Voluntary Secretary of the 12^th MC and on or about 6 June 2018 that D2 finally returned to the IO the keys to the file cabinet in the small conference room. On that occasion, D2 also returned to P3 (through P2) 4 L1 to L4 approved building plans which P3 had obtained 20 years ago. By such conduct, D2 has in effect admitted that he had previously taken those plans away (see §16(8)(b)(xii) of the reply[105]).

(3) In this regard, even if, contrary to Ps’ position, the 7 July 2020 Statement bore the meaning and/or imputation that “the documents were taken away” (see §59(2)(a) of D2’s Submissions), this does not advance D2’s case in the slightest to show that the 7 July 2020 Statement was false. By reason of the matters aforesaid, it is indisputable that D2 had taken away documents or things belonging to the IO.

(4) There is no dispute that, by the time the 7 July 2020 Statement was issued, the IO had reported D2’s false representation and the incident about the missing documents to the Police. The words “年前已作報警處理” spoke for themselves and cannot be twisted to mean that D2 was, as at the time the 7 July 2020 Statement was issued, still under criminal investigation (cf. §48(2)(a) of D2’s Submissions).

(5) As to the words “但宏觀有關人士在過去一年在事件處理的反應/行為，法團將安排「民事控告」該名人士，以配合誹謗/索償各分案”, D2 concedes that they “simply mean that [the IO] will commence civil proceedings against D2 for his conduct so as to be consistent with the defamation and compensation claims”. That being so, it is wrong for D2 to suggest that those same words could carry the meaning and/or imputation that “the criminal investigation is ongoing and in the IO’s favour to justify further proceedings against D2” (see §48(2)(b) of D2’s Submissions). With respect, such reading is contrived and amounts to putting words into the mouths of P1 and P2.

(6) The words “有人製造假文件及行使假文件” and “某人捏造假文件及行使假文件加入法團成為委員” do not imply and/or impute that D2 had committed a criminal offence(s). Bearing in mind that Ps are lay people who have no knowledge of the niceties of the criminal law, it is improbable to the extreme that Ps would have had in mind the specific statutory offences under sections 71 and/or 73 of the Crimes Ordinance, Cap 200 when the 7 July 2020 Statement was made. Ps therefore say that D2’s submission in this regard is unrealistic and divorced from reality (see §59(1)(b) of D2’s Submissions). Ps submits that by the aforementioned words, Ps clearly intended them to mean the indisputable fact that D2 made a false representation in the 11^th MC Forms and the 12^th MC Nomination Form to join the MC as a member.

(7) Nothing in the 7 July 2020 Statement suggests that D2 had committed criminal offence and/or illegal conduct. Such meaning and/or imputation does not follow from the possibility that D2 may be subject to the Police’s investigation in the future.

195.  In my view, again, whether the above matters could form a valid basis for P1 and P2 to believe in the truth of the 7 July 2020 Statement is a matter for trial. In particular, whether D2 had made a false representation to Ps or he was admitted as a MC member with full knowledge of P2 and other MC members at the time that he was not a registered owner as he has alleged in his affirmations, could only be resolved at the trial. It is not possible, and imminently inappropriate in my judgment for the Court to make any finding at this stage as to which was the more likely version of events without hearing the witnesses and without them being subjected to cross-examination by the other side.

196.  However, of the core allegation that Ps knew about the completion of the investigations by the Police and the ICAC but continued to make the defamatory statements, I find the evidence produced by D2 is sorely lacking.

197.  First, D2 has produced no documentary evidence that the Police had informed Ps of the closure of the investigation against D2. Instead, all that D2 has managed to say is that “the police officer who spoke to me on the phone when I requested for the confirmation letter in writing, did inform me orally that his colleagues had already followed standard procedure to inform Mr. Lee and the management office of the results of the investigation” (see §36 of D2’s 3^rd affirmation[106]). I also note that this bare assertion was raised, for the first time, in D2’s 3^rd affirmation filed on 6 November 2020, and not in his previous rounds of affirmation evidence. In my view, this is clearly an afterthought.

198.  Second, the reliance of D2 on the webpage “Rights of Victims and Witnesses of Crime” and the “Victims of Crime Charter[107] as Ps’ imputed knowledge that they must have realized that the investigations by the Police and the ICAC had ceased are wholly unrealistic and irrelevant. Firstly, they do not change the objective fact that Ps did not allegedly receive any written notification from the Police. Secondly, both documents are aspirational in character and do not impose a legal obligation on the Police and/or the ICAC to inform the victims of the progress of their investigations.

199.  Third, I agree with Ps that it is unreasonable for D2 to expect P1 and/or P2 to find out about the progress of the investigation from the Police, when D2 as the subject matter of the investigation, had the most intimate knowledge of the same, and could easily have provided proof of the closure of the investigation as soon as he received it.

200.  Perhaps most shockingly, even after had D2 received written confirmations from the ICAC and the Police in March 2019 and February 2020 respectively that the investigations against him had been closed[108], D2 did not promptly provide or show copies of either confirmation to P1 and/or P2. On the contrary, when asked by Ps on 23 July 2020 to provide a copy of document regarding the closure of the investigation[109], D2 did not reply. Then the next thing that happened was the filing of the Injunction Summons and D2’s 1^st affirmation, in the latter of which D2 exhibited the confirmation notice for the first time.

201.  In the circumstances, I entirely agree with Ps that it lies ill in D2’s mouth to suggest that Ps should have made an “application or request for further and better particulars, or discovery to pray in aid of pleading the reply”: (see §53(3) of D2’s Submissions). Not only would this be a disproportionate use of time and costs, the reality is that D2 was not inclined to provide Ps with the relevant proof and/or particulars to start with. Likewise, I agree with Mr Ng that it is hypocritical to the extreme for D2 to suggest that P1 and P2 should have found out about the closure of the investigations because it was “of great importance to the IO and P2” (as §75(2)(b) of D2’s Submissions). As D2 was the subject of the investigations, the investigations were undeniably of far greater importance to D2 and, on the logic of D2’s case, there was a fortiori no justification for D2 to refrain or neglect to provide Ps with the written confirmations from the Police and the ICAC.

202.  Third, on D2’s own case, the MC/the IO issued a total of 14 notices between April 2018 to June 2020[110]. None of these notices in any way stated or suggested that the investigation had been closed. In my judgment, it is inherently probable that the reason why this was not done was precisely because Ps bona fide and honestly believed that D2 was still under investigation. In my view, if Ps or the management office of the IO had received any confirmations, whether written or otherwise, then Ps, acting in good faith, would certainly have mentioned this in the IO and/or the MC’s notices. As reflected in Ps’ consistent conduct, at this stage of the proceedings and without the evidence being tested, I cannot exclude the possibility that Ps had truly and honestly believed that D2 was still under investigation at all material times.

203.  Fourth, I agree with Mr Ng that D2’s reliance on the fact that Ps “had to return to give a second statement” to the Police (see §75(2)(e) of D2’s Submissions) is a complete red-herring. Whilst P3 was indeed asked by the Police to make the second statement, Ps were never told that the investigations against D2 had been closed. In fact, to allege otherwise would be contrary to common sense, since it would not have been necessary for Ps to make this second statement if the investigations had indeed been closed, or if it was already apparent to the Police that it was about time to close the investigations then. If anything, I agree that the said notice confirms Ps’ bona fide belief that the investigations against D2 were still ongoing.

D.9 Conclusion on Injunction Summons

204.  Based on the aforesaid, there is in my view no basis for D2’s allegation that Ps already had notice of the closure of the investigation against D2 before the 17 December 2019 Statement and/or the 7 July 2020 Statement were issued. The allegation in the D&CC is only a bare assertion, the evidence of which (if any) D2 has refrained from producing upon Ps’ genuine request for it by letter dated 23 July 2020.[111] In any event, such allegation goes to the subjective state of mind of Ps and is clearly fact-sensitive, and should not be determined at the interlocutory stage.

205.  I therefore will dismiss D2’s Injunction Summons with costs in favour of P1 and P2.

E. The Additional Evidence Summons

206.  Given my conclusion on the Injunction Summons, I shall briefly deal with the Additional Evidence Summons below.

E.1 D2’s application

207.  In a most unusual move, D2, after the Injunction Summons hearing was heard on 30 and 31 December 2021, issued the Additional Evidence Summons on 9 February 2021, for leave to adduce his 5^th affirmation (“D2’s 5^th Aff”) as post-hearing additional evidence in support of his application for the interlocutory injunction application.

E.2 Background relied on by D2 for the application

208.  On 8 February 2021, D2’s solicitors received a letter from the Police (“Police Letter”) stating allegedly in unequivocal terms: “The Complainant was informed of the result of the investigation orally and in writing in October 2018”.[112]

209.  The application to adduce additional evidence was said to have been made promptly and immediately to the Court on the next day.

210.  The following matters then transpired:-

(1) On 10 February 2021, D2’s solicitors wrote to P1-P2s’ solicitors proposing directions for filing of evidence[113];

(2) Instead of addressing the question of directions, on 17 February 2021, P1-P2s’ solicitors wrote to the Court[114] which were in effect legal submissions setting out legal arguments and analysis in relation to this application, and importantly, argued that the letter dated 17 January 2021 was unreliable because it did not identify who the complainant of STRN 18017378 was;

(3) On 24 February 2021, this Court made the directions that the matters described above in the correspondence between parties will be dealt with at the hearing on 11 March 2021; and

(4) Without any warning or informing D2 or his solicitors that they were actively corresponding with the Police, P1-P2 filed and served on the Friday’s evening of 5 March 2021, an affirmation in reply[115] (which again largely contains legal arguments and not evidence).

E.3 Legal principles relied on by D2

E.3.1 Jurisdiction to adduce post-hearing evidence

211.  D2 submits that, there is no doubt that post-hearing, the Court retains the discretion to admit new evidence and even reverse his decision at any time before an order is drawn up and perfected under the principles founded in the case of re Barrell Enterprises [1973] 1 WLR 19, which has been applied in the courts in Hong Kong (including the District Court). In Sun Jianqiang v Trans-Island Limousine Service Ltd [2004] 1 HKC 533 at §28, discovery of new facts subsequent to judgment being given was specifically cited as an example where the court may admit new evidence to reverse its decision.

212.  Mr Deng submits that, prior to Re L and B (Children) [2013] 1 WLR 634, [2013] UKSC 8 at §29, it was thought that the jurisdiction to admit new evidence and reverse a decision was reserved only for exceptional situations. It has now been clarified that even if a judge hands down judgment and the judgment remains unsealed, there is no requirement to establish or prove exceptional circumstances as the power exists simply to ensure that cases are dealt with justly.

E.3.2 Circumstances in which discretion may be exercised

213.  As stated in Re L and B (Children), whether a judge may exercise his discretion to admit new evidence post-hearing is premised on whether it is “just” in the circumstances.

214.  D2 submits that the authorities also establish that the discretion may be exercised when some but not all of the conditions in the Ladd v Marshall test are met, ie flexibly.

215.  In Galsworthy Ltd v Liu Por (appointed to represent the estate of Liu Cheng Chan, deceased) & Ors [2019] HKCFI 2397, Marlene Ng J summarising the position in Hong Kong made the following observations:-

(1) In Keen Lloyd Energy Limited v Bank of China (Hong Kong) Limited (unrep., HCA 1299/2004 & 1092/2006, 4 January 2008) at §§5 – 7 per Poon J (as he then was), he recognized that there were 2 approaches to considering post-hearing evidence, namely: (i) applying the Ladd v Marshall conditions; or (ii) considering whether the interest of justice is served by accepting or rejecting the application (the Australian approach). Nonetheless, Poon J declined to express a definitive view on which approach was correct, as parties agreed that the main consideration was whether the new evidence was relevant to the application and whether it would have an impact on the outcome of the application;

(2) In Balram Chainrai v Kushnir Family (Holdings) Limited & Ors [2018] HKCFI 17 at §55, the Australian approach was not cited to L. Wong J who held that the Ladd v Marshall conditions were applicable to adduce new evidence before judgment in a striking out application, but with flexibility, and the purpose of the flexibility was to ensure that justice was achieved in each case.

216.  After considering detailed submissions, Marlene Ng J in Galsworthy Ltd, supra, once again declined to come to a definitive view but made the following observations at §443:-

“443. Upon careful consideration of senior counsel’s submissions, I am not persuaded the parties’ respective stance was so different, and like Poon J (as he then was) in Keen Lloyd Energy Limited, I find it unnecessary to choose between the English / Hong Kong and Australian approaches. Here, both Mr Man SC and Ms Sit SC recognised (a) the contents of the Draft Affs concerned New Developments that emerged after the 1^st Hearing, so there was no question of deliberately withholding such evidence at such hearing, and (b) irrespective whether or not the Ladd v Marshall considerations are to be adopted as a starting point the considerations under both approaches are similar in that the court should consider admitting evidence on the New Developments that were material and/or directly relevant to P’s/Ds’ Summonses by examining the cogency/relevance of the new evidence, whether it would have an impact on the outcome, the public interest to do justice by deciding the rights of the parties, and the underlying objectives in Order 1A of the RHC.” [emphasis added]

217.  More recently, the principles enunciated above were considered and applied in TYT v TLH [2020] HKFC 153 where DDJ To allowed the admission of fresh evidence notwithstanding the same could have been placed before her at the substantive hearing.

218.  In the premises, in exercise of its discretionary power to receive evidence post-hearing but pre-judgment, D2 invites the Court to do so by first considering the cogency/relevance of the new evidence, whether it would have an impact on the outcome, and the public interest to do justice.

219.  D2’s submission is that the Police Letter is cogent and objective evidence from an independent party that P2 was intentionally misleading the court and lying on oath on a critical and important issue in the present case. D2 further submits that it directly contradicts P2’s affirmations, as it “clearly and unequivocally states that the “Complaints” was informed of the results of the investigation in STRN 18017378 both orally and in writing in October 2018”.

220.  It follows that as such and with the Police Letter, D2 says that he would be able to positively assert and rely on as evidence that “P2 knew that the investigation was over by October 2018”. D2 therefore invites the court to make the finding that, by the time of the impugned notices were published, they were done so maliciously and with a view to mislead the residents and owners of the Estate that D2 was still under investigation for criminal offences during his period of service at the 11 & 12 MCs.

221.  Mr Deng submits that justice can only be achieved if the Police Letter is allowed to be admitted as evidence to show the state of mind and knowledge for the purpose of the Injunction Summons.

222.  In terms of law, Mr Deng submits that there is some overlap between the conditions in Ladd v Marshall and the factor of congency and reliability of the new evidence. Mr Deng further submits that the conditions under Ladd v Marshall have been satisfied as long as the test is applied with flexibility. He cited the family law case of TYT v TLH as an example to support his proposition.

223.  Mr Deng submits that the overall interest of justice requires the court in the circumstances to put more weight on conditions 2 and 3 of Ladd v Marshall test which he says have been fulfilled amply by the Police Letter in this case.

224.  Mr Deng tries to get round the difficulties D2 faces in not able to fulfill condition 1 in the following ways:

(1) There can be no dispute that the Police Letter was not in existence before the Injunction Summons hearing in December 2020. While D2 could have written beforehand to seek to disprove P2’s assertion on oath, it would be “most striking” for the purpose of an interlocutory injunction that D2 would be expected to have done so. D2 believed that there was sufficient evidence (by reason of the existence of the policies of the Police and the ICAC and the Victims Charter for the court to draw an inference that it was incredible that P2 was not informed; and

(2) It was only during the exchanges between the Bar and the Bench at the hearing that “it became apparent that the Court was not minded to draw such an inference at the interlocutory stage” and it became plain to D2’s advisors that “there was an evidential gap that could not be filled by necessary inferences”.

225.  As a last resort, Mr Deng relies on the underlying objectives stated in Order 1A of the Rules of the High Court, Cap 4A as a reason of why the court should allow the application: (See §§40-44 of D2’s submissions on the Additional Evidence Summons).

E.4 Findings of the Court

226.  I find D2’s application rather astounding.

227.  To start with, I find this is a wholly opportunistic effort on the part of a desperate litigant who saw fit on one hand to hide 2 pieces of very crucial evidence himself from his opponents (in the form of the letters from the Police and the ICAC informing him that the investigations had been completed), while on the other hand attempted to plug a big evidential hole which he found out existed during the substantive hearing of the Injunction Summons.

228.  As a matter of general principle in civil litigation, it is trite that it is the duty of every litigant “to bring forward his whole case at once and not to bring forward piecemeal as he found out the objections in his way”: See Re New York Exchange Ltd (1888) 39 Ch D 415 at 420. This principle has been consistently applied by the courts both in Hong Kong and in England as Mr Ng has rightly pointed out: See for example Charlesworth v Relay Roads Ltd [2000] 1 WLR 230 at 237H; Citic Pacific Ltd v Secretary for Justice [2012] 2 HKLRD 701 (CA) at §90 at 725; and Chan Chi Wai v Chau Sau Wah [2019] 3 HKLRD 330 at §27 at 340.

229.  As Tang VP (as he then was) observed in Kwok Hay Kwong v Medical Council of Hong Kong [2007] 3 HKLRD 213[116] at §§17-19: -

“17. ... One aspect of finality is that litigants are required to bring forward his whole case at once and not to bring it forward piecemeal. If a second chance is readily available, litigants might put forward what they conceived to be their best case first, then should that fail, they might try another tack on appeal. Thus, Lord Woolf CJ in Taylor & Anor v Lawrence & Anor [2002] 2 All ER 358, citing Henderson v Henderson (1843) 3 Hare 100, said that litigants:

‘… will not normally be permitted to have a second bite at the cherry’

18. That is for good policy reason. If litigants put forward their whole case at once, the court, possessed of the full picture, is more likely to be able to arrive at the correct conclusion…

19. Thus, restrictions are essential for good administration of justice…”

E.5 Ladd v Marshall is applicable to D2’s application

230.  The 3 conditions stated in Ladd v Marshall [1954] 1 WLR 1489 at 1491 per Denning LJ (as he then was) are: -

“… first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”

231.  As Marlene Ng J observed (at §439) in Galsworthy Limited, supra: -

“… recently in Hong Kong, Lisa Wong J applied the Ladd v Marshall conditions to an application to adduce new evidence before judgment in a striking out application in Balram Chainrai v Kushnir Family (Holdings) Limited & Ors …”

232.  In Balram Chainrai v Kushnir Family (Holdings) Limited & Ors (unrep., HCA 1462/2014, 4 January 2018), Lisa Wong J held (at §56): -

“The admission of new evidence at a late stage of proceedings is always a matter of discretion that must be justified, balancing the competing interests of the parties and the court. To my mind, the 3 questions asked in Ladd v Marshall would always be relevant if such discretion is to be exercised in a principled manner.”

The learned Judge then proceeded to examine the first and second conditions in Ladd v Marshall (at §§57-61 and §§62-69 for the first and second conditions respectively) and found (at §§61 and 69 for the first and second conditions respectively) that they were not satisfied. At §§70-71, the learned Judge held that since she had found that the first and second conditions were not fulfilled, she did not need to go to the third condition.

233.  In seeking to argue that that the 3 conditions in Ladd v Marshall are satisfied, D2 accepts or must be taken to have accepted that Ladd v Marshall is applicable to his application. Ps submits that D2’s concession is correctly made. Mr Ng submits that there is no basis for D2’s submission that “the discretion may be exercised when some but not all of the conditions in Ladd v Marshall test are met” (see §10 of D2’s submissions on the Additional Evidence Summons), which submission is contrary to the authorities cited by D2 himself and contradictory to D2’s submissions in Section C3 that all the Ladd v Marshall conditions are satisfied.

E.5.1 D2 has failed to prove that the Ladd v Marshall conditions are satisfied

234.  It is not disputed that the burden is on D2 to show that each of the 3 conditions set out in Ladd v Marshall is satisfied.

235.  In my judgment, the Courts adopt a “strict approach” on admission of new evidence under Ladd v Marshall; See also Birkenhead Properties and Investments Ltd v Leung Yiu & Ors [1998] 1 HKLRD 527 at 535F-G per Le Pichon J (as she then was)[117].

E.5.2 D2 has failed to prove that the first condition in Ladd v Marshall is satisfied

236.  The first condition in Ladd v Marshall is that it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial/hearing. Thus, “if evidence which either was in the possession of parties at the time of a trial, or by proper diligence might have been obtained, is either not produced, or has not been procured”, then the evidence will not be allowed to be produced: Nash v Rochford RDC [1917] 1 KB 384 at 393 per Scrutton LJ.

237.  In my judgment, it is clear that D2 has failed to prove that the first condition in Ladd v Marshall is satisfied.

238.  First, despite the fact that D2 has devoted 6 paragraphs in Section C2 of his submissions on the Additional Evidence Summons to purportedly deal with the 3 conditions in Ladd v Marshall, nowhere in those paragraphs is it asserted that the new evidence could not have been obtained with reasonable diligence. I agree with Ps that the reason is simple: as admitted by D2, the new evidence could, with reasonable diligence, have been obtained by D2 for use at the Injunction Summons hearing.

239.  Second, on the contrary, D2 made a glaring admission (see §39(1) of his submissions on the Additional Evidence Summons) that he “could have written beforehand to seek to disprove P2’s assertion on oath that neither he nor P1’s agents had ever received information concerning the conclusion of the investigation against D2”. This is tantamount to admissions that (a) the new evidence could, with reasonable diligence, have been obtained by D2 for use at the hearing and (b) the first condition in Ladd v Marshall is not satisfied. This is fatal to D2’s application.

240.  Third, that the new evidence could, with reasonable diligence, have been obtained for use at the hearing is also overwhelmingly supported by the fact that on his own case, D2 “wrote to the police on 6 January 2020 and obtained a written confirmation dated 27 February 2020 by the police stating that they had completed investigation into the case of STRN 18017378 by 10 October 2018”: see §67 of D2’s affirmation[118]. A redacted version of the letter from Madam Pun Siu-yue of the Hong Kong Police Force (“Ms Pun”) dated 27 February 2020 (“Ms Pun’s 27 February 2020 Letter”) was produced with the affirmation[119]; un-redacted version was only disclosed by D2 on the first day of the Injunction Summons hearing:-

(1) The background to the late disclosure was that, despite having been expressly asked by Ps (via the letter from their then solicitors Messrs SK Lam Alfred Chan & Co dated 23 July 2020 (“Ps’ 23 July 2020 Letter”)[120]) to provide them with a copy of any notification that the Police had closed their investigation of D2, D2 deliberately withheld Ms Pun’s 27 February 2020 Letter from Ps and only disclosed the same in his affirmation filed in support of the Injunction Summons. At the Injunction Summons hearing, the Court has openly criticised D2’s conduct by saying that he had deliberately hide the crucial evidence from the Police and the ICAC from P1 and P2. D2 really has no answer to that. I agree with Ps that this throws a very bad light on D2’s conduct and shows that D2 did not come to the Court with clean hands;

(2) Ps have put their cards on the table and expressly made known to D2 (via Ps’ 23 July 2020 Letter[121], before the issue of D2’s Injunction Summons on 6 August 2020) that they did not know that the Police had closed their investigation of D2 and clearly stated that they “have never received the same piece of information from the police”. I agree that D2 and his legal advisers could, with reasonable diligence, have obtained written confirmation from the Police whether they had allegedly informed Ps that they had closed their investigation of D2 for use at the Injunction Summons hearing.

(3) In fact, the letter from D2’s solicitors dated 4 January 2021 to the District Investigation Team 1 (“D2’s 4 January 2021 Letter”) was addressed to Ms Pun, the writer of Ms Pun’s 27 January 2020 Letter. In my view, D2’s solicitors could have, with reasonable diligence, written to Ms Pun earlier, shortly after Ms Pun’s 27 January 2020 Letter. This again shows that the new evidence could, with reasonable diligence, have been obtained by D2 for use at the Injunction Summons hearing.

(4) Furthermore, the first condition in Ladd v Marshall will not be satisfied if the party itself failed to exercise reasonable diligence: Weller v Dunbar [1984] Lexis Citation 377 (unrep., 27 January 1984) at pp 2-3 per Stephenson LJ). Here, despite having expressly admitted that “D2 could have written beforehand to seek to disprove P2’s assertion”, no explanation whatsoever was given by D2 as to why he had not done so.

241.  Fourth, that the new evidence could, with reasonable diligence, have been obtained by D2 for use at the Injunction Summons hearing is reinforced by D2’s own submissions that “there has been no delay on the part of D2”: (see §2 of D2’s submissions on the Additional Evidence Summons) as he wrote to the Police on 4 January 2021, just 4 days after the Injunction Summons hearing. If D2 could have written to the Police so easily just 4 days after the Hearing, then he could not explain why he could not have written to the Police earlier.

242.  In the premises, I find that D2 has failed to prove that the first condition in Ladd v Marshall is satisfied. I am of the view that D2’s application must be dismissed on this ground alone. It is really not necessary for the Court to consider the second and third conditions. However, for the sake of completeness, I shall address the second condition briefly below.

E.5.3 Second condition in Ladd v Marshall

243.  The second condition in Ladd v Marshall is that evidence must be such that, if given, it would probably have an important influence on the result of the case.

244.  I am also of the view that D2 has also failed to prove that the second condition in Ladd v Marshall condition is satisfied.

245.  First, it is not in dispute that D2 has a very high threshold to cross to obtain an interlocutory injunction to restrain the publication of allegedly defamatory statements and that the burden is on D2 to satisfy the court that the statement is unarguably defamatory, that there are no grounds for concluding the statement may be true, that there is no other defence which may succeed and there is evidence of an intention to repeat or publish the defamatory statement (see §3 of Ps’ Skeleton Submission), which I find under the Injunction Summons D2 has failed to prove.

246.  Second, and in particular, P2’s confirmation on oath that Ps have “no intention to further publish the words complained of by D2 until after the trial of this action” (see §44 of P2’s 2^nd affirmation[122]; §22.2 of Ps’ Submissions) is fatal to D2’s application. As P2 stated in §44 of his 2^nd affirmation[123], which is consistent with §32 of his 1^st affirmation[124], P1 and P2 have, up to the date of P2’s 2^nd affirmation (ie 11 September 2020), not published any statement concerning the present proceedings since the first hearing on 14 August 2020. Furthermore, consistent with §44 of P2’s 2^nd affirmation[125], P2 has not since the date of his 2^nd affirmation to date published the words complained of by D2. Thus, the objective evidence clearly supports P2’s assertion that Ps have no intention to publish the matters complained of by D2.

247.  I find D2 has completely failed to answer this point.

248.  Third, in the face of such incontrovertible evidence which D2 has completely failed to answer, in a desperate attempt to salvage a hopeless case, in D2’s submissions on the Additional Evidence Summons, whilst making no assertion that Ps had the intention to publish the matters complained of, made a wholly baseless submission that P2 is “an unreliable witness and his self-serving statement in affirmation cannot be trusted or relied upon”[126] which submission is, similar to the one in §85 of D2’s Submissions (ie the submission that “the evidence of P2 is not worth the paper it is written on, especially his assertion of no further publication”) and as pointed out in §22.4 of Ps’ Submissions, a pure speculation entirely unsupported by evidence and has no place in a court of law in Hong Kong.

249.  In the premises, it is clear that D2 has failed to prove that the second condition in Ladd v Marshall is satisfied.

250.  As D2 has failed to prove that the first and second conditions in Ladd v Marshall are satisfied, I would follow the approach of Lisa Wong J in Balram Chainrai and would dismiss D2’s application. There is no need for me to consider the third condition in Ladd v Marshall.

E.6 D2’s reliance on Order 1A of RHC is misplaced

251.  Lastly, in my view, D2’s reliance on Order 1A of RHC (ie the overriding objectives of doing justice between the parties) is plainly misplaced.

252.  The same submission was made and rejected by the Court of Appeal in Chong Hing Bank Ltd v Fairview City Ltd [2019] 4 HKLRD 636 in which Chu JA observed (at §§16-17) that:-

“16. With respect, it is wrong to suggest that the overriding objective of doing justice between the parties can readily trump the principles established by Ladd v Marshall. On the contrary, this court (and the English courts) have repeatedly held that those principles remain applicable and should not be departed from save in exceptional circumstances, such as where there has been some procedural irregularity during the trial, or where there is some important question of public interest involved.

17. In our view, the principles established by Ladd v Marshall are entirely consonant with doing justice between the parties. It is difficult to see why fairness or justice should entitle a party who has failed to adduce at trial evidence which he later asserts to be significant, should be allowed to do so on appeal, particularly where no cogent explanation for the failure is put forward. It is, of course, also a strong public interest in finality of litigation. To too readily allow the adducing of fresh evidence after trial, with its attendant risks of necessitating a retrial, would clearly go against that public interest.”

253.  I further dismiss D2’s entirely baseless allegations that P2 should be cited for contempt or that P2 has “lied” to the Court or that P2’s conduct can only be described as “contumelious and an attack on the Court’s honour”[127]. As said, I find there are mug slingings from both sides in this bitter saga between the parties. I do not find D2 as innocent as he tries to make himself out to be. In my view, all these bad blood between the parties should be resolved in one go at the trial of this action rather than to be dealt with in piecemeal by way of interlocutory summonses.

E.7 Conclusion on the Additional Evidence Summons

254.  Based on the above discussions, I would dismiss D2’s Additional Evidence Summons with costs in favour of Ps.

F. CONCLUSION

255.  In conclusion, I would dismiss both the Injunction Summons and the Additional Evidence Summons issued by D2.

256.  I further make a costs order nisi that D2 should pay the costs of P1 & P2 on both summonses to be taxed on a party and party basis, with certificate for 2 counsel in the Injunction Summons and certificate for 1 counsel in the Additional Evidence Summons. The costs to be summarily assessed by this Court and to be paid forthwith by D2 after the assessment.

257.  The costs order nisi will become absolute in the absence of any application to vary the same within 14 days after the date of handing down of this decision.

258.  For the purpose of assessment, I direct P1 and P2 to lodge with the Court a statement of costs on the Injunction Summons and a separate statement of costs for the Additional Evidence Summons within 14 days after the date to vary the costs order nisi expires, with copies served on D2. D2 is directed to lodge a list of objections on each of the 2 statements of costs within 14 days thereafter with copies served on P1 and P2. The Court will summarily assess the costs on paper.

259.  Lastly, it remains for me to thank counsel on both sides for their very comprehensive and helpful submissions in this case.