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DCCJ 5079/2015
[2019] HKDC 1428
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 5079 OF 2015
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| BETWEEN |
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LEUNG CHI CHING CANDY |
Plaintiff |
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and
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YEUNG HON SING（楊漢成） |
Defendant |
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| Before: |
Deputy District Judge Vincent Lung in Court |
| Dates of Hearing: |
11, 14 – 18, 21 and 31 May 2018 |
| Date of Judgment: |
15 November 2019 |
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JUDGMENT
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A. Introduction
1. This is the trial of the plaintiff’s claim for libel based on the publication of 6 articles.
2. The dispute concerns the management of Cheerful Garden, a residential estate in Siu Sai Wan (the “Estate”). At the time when the 6 articles were published, the plaintiff and the defendant were the only 2 chairpersons of the Management Committee (the “MC”) of the Incorporated Owners of Cheerful Garden (the “IO”) since the incorporation of the IO in 2010:
(1) The defendant became the chairman of the 1st MC, but he (together with others) resigned on 21 August 2011;
(2) The plaintiff became his successor for the remaining term of the 1st MC;
(3) On 22 July 2012, the plaintiff’s term as chairperson came to an end. At the IO’s Annual General Meeting held on that day (the “2012 AGM”), the defendant was elected and became (again) the chairman of the 2nd MC.
3. The 6 articles were all published during the defendant’s 2nd tenure as chairman; they were published between 2013 and 2015.
4. As will be seen below, the triggering point of the disputes between the plaintiff and the defendant related to a major renovation of the Estate proposed by the plaintiff (referred to by the parties as 大維修). It was indeed the most prominent matter mentioned in the 6 articles.
5. There were other issues referred to in the 6 articles concerning the management of the Estate, including the engagement of a security service contractor, the construction of a gate (referred to by the parties as the 118 Gate) and the appointment of the management company.
B. The proper approach
6. As a broad overview, I have to determine the following issues:
(1) Whether the 6 articles (or any of them) are defamatory of the plaintiff as alleged;
(2) Whether the “stings” refer to the plaintiff;
(3) Whether there was publication;
(4) If the answers to (1) to (3) are in the affirmative, whether the defendant has a valid defence, and whether the plaintiff is able to establish “malice”[1] to rebut the defence of qualified privilege and/or honest comment;
(5) If there is no defence or if the defence is rebutted, the appropriate reliefs to be awarded including quantum of damages.
7. I am grateful to all counsel for exercising good judgment in deciding what points to take. It is fair to say that the defendant’s challenge is not really on questions (1) to (3) set out above; his main argument is on the availability of justification, qualified privilege and honest comment (although the statutory defence under s.29A of the Building Management Ordinance (the “BMO”, Cap.344) are also relied upon). The plaintiff’s major attack is accordingly on establishing malice in order to rebut qualified privilege and honest comment. I will therefore be brief in analyzing issues that are not in serious dispute.
8. I should state at the outset that the defendant does not dispute that he published, or caused to publish, the 6 articles.
9. I should also say that there are in fact not many factual issues that require my determination. Most factual issues were contemporaneously recorded in writing, usually in the form of meeting minutes. Neither party has significantly challenged the accuracy of these minutes. I give weight to the contemporaneous documents unless otherwise indicated. The real factual question that matters is whether the defendant was “malicious” (for the purpose of rebutting qualified privilege and/or honest comment)[2].
10. Furthermore, save certain issues of which the defendant relies on truth as a defence, I am not asked to determine whether certain actions taken in the past by the plaintiff were appropriate or justified – this is not a case claiming that the plaintiff acted against the best interests of the IO while she was the chairperson. It is not for me to pass a moral or value judgment on the actions of the plaintiff, whether as chairperson of the MC, or subsequently as a resident of Cheerful Garden having a say in the management of the affairs of the Estate. Instead, the focus of this judgment is to decide whether the defendant was entitled, through the 6 articles, to publish the various statements concerning the plaintiff using the words as he did.
11. Insofar as credibility of witnesses is concerned, it is well known that apart from demeanour, the Court should take into account contemporaneous documents and inherent probabilities in the assessment exercise.
12. I should further record that there is no real dispute between the parties on the applicable legal principles. They only differ as to how those principles should be applied on the specific facts of this case. I therefore do not intend to extensively cite authorities for propositions that are well established and not in issue.
C. The factual background
13. I will first set out a brief factual background. Most of these matters are not in dispute unless otherwise indicated. There will be a more comprehensive description and analysis of the relevant factual events in the sections below when they fall for consideration.
C1. The plaintiff’s and the defendant’s chairmanship
14. The Estate was first occupied in 1995. It consists of around 1,870 flats, 374 car park spaces and 85 shops, with a residential population of around 6,000. The Plaintiff and the Defendant are owners of units in the Estate.
15. Prior to the formation of the IO in 2010, the Estate was managed by its Owners’ Committee (“OC”) formed under its Deed of Mutual Covenant.
16. In October 2007, the management company of the Estate, Chevalier Property Management Limited (“Chevalier”), obtained a report from I Consultants & Contracting Co Ltd, which recommended “urgent renovation” and “necessary renovation” to be carried out to the Estate with a cost of HK$1.2 million and HK$32.648 million respectively.
17. In 2008, the then OC proposed to carry out a major renovation for the Estate. The defendant became the OC chairman in 2009 and pioneered the formation of the IO. The renovation earlier proposed by the OC was put to a halt.
18. On 18 September 2009, Wealthy Gate Architects & Associates Ltd (“Wealthy Gate”) provided a quotation for renovation works proposed to be carried out by the Estate, which stood at around HK$32 million.
19. The IO was established on 14 April 2010 and the Defendant was elected as the chairman of the 1st MC.
20. On 2 July 2010, Wealthy Gate provided a report entitled ‘詳細勘察及可行性研究報告’ (the “Wealthy Gate Report”).
21. In May 2011, Chevalier agreed to a draft management contract that effectively altered its status from a DMC manager to a contract manager of the Estate. This was passed at the Owners’ Meeting on 28 May 2011.
22. In June 2011, the defendant and some other members resigned from the 1st MC. It was expected that the newly elected MC would have the draft management contract duly signed after they were elected.
23. On 21 August 2011, the plaintiff was by-elected as the chairperson for the remaining term of the 1st MC (the “By Elected 1st MC”). The plaintiff proposed a major renovation for the Estate during her chairmanship. As to the management contract, it was not signed when the term of the By Elected 1st MC came to an end.
24. On 22 December 2011, the By Elected 1st MC sent out a questionnaire to owners to collect their views as to the major renovation.
25. On 8 February 2012, the By Elected 1st MC resolved to commence the renovation and that HK$10,000 would be collected from the owners of each flat. On 15 February 2012, the legal advisor of the IO, Messrs. Au-Yeung Cheng Ho & Tin, advised against the By Elected 1st MC’s reliance on the questionnaire as a basis to raise funds from the owners. Solicitors advised that an owners’ resolution passed at an owners’ meeting was necessary.
26. On 17 February 2012, the By Elected 1st MC advertised to invite tenders for the post of consultant in relation to the proposed renovation. On the same day, the Plaintiff informed the owners that more than half of the owners who responded to the questionnaire agreed to the renovation.
27. In the selection process for the consultant, the plaintiff relied on a scoring system from 3 anonymous volunteers. The identities of the volunteers were not disclosed.
28. On 31 March 2012, the By Elected 1st MC selected Wong Kwong (“W&K”) as the consultant for the renovation.
29. On 25 May 2012, W&K issued its consultancy report on the renovation.
30. On 30 June 2012, the process for accepting tenders for contractors of the renovation began. It ended on 11 July 2012.
31. The By Elected 1st MC required that all the proxies to be used in the 2012 AGM must bear the chop of the IO, or otherwise the proxy would be invalid.
32. On 17 July 2012, W&K interviewed the contractors who submitted tenders. Out of 14 tendering contractors, W&K required 10 to provide supplemental information, most of whom were unable to do so due to limited time. As a result, only 4 candidate contractors were interviewed. On 20 July 2012, W&K provided its analysis on the tenders from the interviewed contractors (only 2 days before the 2012 AGM).
33. On 22 July 2012, at the 2012 AGM, the defendant was re-elected as the chairman of the 2nd MC (the plaintiff having withdrawn from the election) and the major renovation proposed by the plaintiff was voted down by the majority of the owners.
34. Another item to be resolved at the meeting was the appointment of the Estate’s security service contractor. Before voting on it, the plaintiff announced that Centurion Facility Company Ltd (世紀服務有限公司) (“Centurion Facility”) would lower its bid to HK$8.7 million, when the other candidates had already made their bids which were made known to the members of the By Elected 1st MC and all owners.
35. It is said that soon thereafter the plaintiff and her supporters organised various disturbances and harassing events within the Estate (including the “crashing” of MC/IO meetings), in an attempt to force the defendant to vacate the office as chairman of the 2nd MC and for the plaintiff to be elected in his place.
36. The 6 articles, the subject of this action, were made between March 2013 and August 2015. There is no dispute that the defendant was the chairman of the MC throughout this period.
37. In September 2015, the defendant began to run for the election as a District Councilor to be held on 22 November 2015. This action was commenced by the plaintiff on 10 November 2015, less than 2 weeks before the election. The defendant was unsuccessful in his election campaign.
C2. The 6 articles
38. For ease of reference, the 6 articles will be referred to as the “1st to 6th Articles” in the order of the time of their publication. Copies of the 6 articles are respectively annexed hereto as Annex 1 to 6.
39. In the sub-sections below I will briefly describe the nature of each of the 6 articles and the pertinent “stings” so as to give a flavour to the issues in question.
C3. The 1st Article
40. This is a leaflet / circular published in March 2013 (the “1st Article”). It contains the following statements:
“去年7月，法團改選，梁志貞等人，因為多數業主不支持，全部落選。本來：二千多萬工程已是囊中之物，但見財化水。自此，死心不息，不斷...
要求召開業主大會，罷免法團，重圓主席夢...也揭露了她們的野心...
＊＊「...做法團係唔係有著數？死都要搶，兩年換一屆都等唔切，真係咁等錢洗...」
＊＊「...用幾萬蚊去開業主大會，俾你爭主席，人地做左幾個月，妳又去攪攪震...」
＊＊「...俾你做主席，妳乜都唔做；淨係要每户夾萬六蚊，個個都話妳係，咁多個主席當中，妳最古惑、最夠膽去掠水...」
...過去數月，每當會議舉行，她們帶隊搗亂生事，語言暴力，橫行無忌...這一切都是貽害了富怡居民利益。
我們...承諾於任期內緊守崗位...不會讓貪婪的、暴力的人得逞...
希望...一起杯葛和對抗暴力者。”
41. The leaflet also depicted a cartoon figure, apparently with demon horns extending her hand (as the plaintiff says) together with the caption “我要錢”.
C4. The 2nd Article
42. This is another leaflet / circular dated 18 April 2013 (the “2nd Article”). It contains the following statements:
“違反招標程序
...上屆法團主席（梁志貞），違規將世紀服務有限公司之投標價，大幅下降70多萬...”
...
東窗事發，廉署介入
...此舉完全違反招標程序和公平原則...坊間業界也鄙視富怡的招標黑幕...
事態相當嚴重，也太過明目張膽，廉正公署亦進行調查...”
C5. The 3rd Article
43. This is a leaflet published a week later dated 25 April 2013 (the “3rd Article”). It contains the following statements:
“政治與黑勢力
4月20日（星期六）晚法團如常進行管委會會議，但有大批群眾衝擊，而且有組織性，其中證實有非本苑居民，介入煽動生事，引起警方高度關注...
...
如今有人將屋苑事務演變成政治鬥爭，肯定是別有用心。法團管委會法定是兩年一屆，然後必須重選，現時任期餘下只有一年多，何需急不及待，引入外來不明力量協助爭奪法團。”
C6. The 4th Article
44. This is a leaflet dated 10 January 2014 (the “4th Article”). It contains the following statements:
“上任法團，管理法團事務一年，實事少幹，卻竟然在一眾反對聲中，硬推天價維修...
已經到口肥肉溜走了，自此死心不息，一直千方百計搶奪法團，吵鬧生事...
橫行無忌
這批人言行粗鄙...爛口粗口，惡毒詛咒... 每逢法團舉行會議必糾黨搗亂，也曾襲擊及恐嚇委員，行為暴戾...
大話連篇
...但有壞人看準長者弱點，向老人家洗腦，真可恥。「...工程嘥錢，法團呃錢，業主要夾錢」...這夥人目的是騙取簽名授權，及制造批鬥，打擊異己，使富怡推向像文革式鬥爭。
不擇手段
...有人為了搶奪法團，一年來（已經第三次）誤導業主簽名...當中發現冒簽...
...職業攪事份子，當然是為了爭奪法團，爭甚麼？當然是為了利益...
齊心譴責野蠻行為，一同鄙視破壞秩序的滋事份子...
絕不能讓別有用心的人，掌管富怡法團，他們食髓知味，必定狠狠的斬殺富怡這塊肥豬肉，翻炒天價維修...”
C7. The 5th Article
45. There is no dispute that certain words were said by the Defendant at the Owner’s Meeting on 28 February 2014, and these words were repeated and reduced into writing in the meeting minutes dated 12 March 2014 which was signed off by the Defendant as the MC chairman (the “5th Article”).
46. The 5th Article contains the following statements:
“法團任期為兩年一屆，有人輸打贏要，不斷生事，是損害居民利益。
過往一年半，同一班人每逢假日聚集鬧事...不停要求召開業主大會...企圖搶奪法團席位和管理權；是不文明的行為。
期間發出多份信件歪曲事實，污衊法團。又上門滋擾業主...
2011年梁志貞就任法團（後補）主席後，隨即又鋭意促成大維修...其工程費用報價，估計可能高出市價近1,000萬元。
有人長年不休爭法團，只為大維修
...源於大維修的強大吸引力...上屆法團更強行上馬，完全不理會居民反對...”
C8. The 6th Article
47. This is a letter dated 20 August 2015, together with an enclosure being the extracts of the minutes of an owners’ meeting held on 23 April 2015 (collectively, the “6th Article”). It contains the following statements:
In the letter
“...前主席及委員出席，就多項關乎業主重大利益的事件作出辯論。過程中，反被揭發很多鮮為人知的不當行為...
...富怡業主也必須要瞭解和提防「慣常的欺壓手法」...當日富怡險過剃頭，差點也中招（天價維俢）了。
...
欺壓手法：
...單憑發出問卷，便起動大維修...
...無公布價錢...
...接任法團的不顧業主反應，又狂推大維修，過程令人非議，業主反對無效。
於是，一眾業主希望我們能夠阻止天價維修，所以我們再出選...
...並成功揭止不公義的大維修。
In the enclosure (extracts of meeting minutes):
Under the heading “天價大維修”
“前主席梁志貞（梁）就任之初，就鋭意推行大維修...在大多數居民反對聲中，卻一意孤行，並以通告作出種種，近乎欺騙居民的謊話...
...內容失實，誤導居民，企圖加劇大維修的必要性。**鼓催起動千萬元天價大維修
梁，大膽如斯，單單以5.2%問卷回覆，就強行起動大維修。
...想霸皇硬上弓，繞開（不開）業主大會，強行要業主夾錢做大維修。
...再次欺騙業主，說大部份業主已經同意做大維修。**簡直是欺騙。
...竟然隱瞞價錢，卻又要求業主集資。**荒謬兼離譜，價錢都不公開。
...梁 拒絕交出所謂義工名單，業主錢，公家事，不肯公開，當然有古怪。
**明眼人一看就知，根本無可能；若說無古惑，肯定無人信。
結論：所用的技倆，是否令你想到翠湖和富嘉的天價維修，源出一徹的手法。
Under the heading “取締118閘”
“正值梁志貞接任...不少業主反對。但梁卻在法團會議通過，後來才被揭發工程費用甚有古怪。
梁 竟推翻118閘的興建，卻無厘頭地要建造小門，當然別有用心...
...梁的通告大大聲話4萬就可建成...然後就在法團會議，俏俏地變成14萬3千...
居民毫不察覺建造費，勁升13萬。（好古惑）”
Under the heading “反對管理合約招標”
“我等...議決當管理合約屆滿時，必須公開招標；這個保障業戶之舉，理應人人贊成...豈料...
梁志貞帶及前委員，帶同律師，意慾推翻大部分業主的授權意願，假若梁的圖謀成功，即管理公司約滿後，可以逃避招標，可以維持這種不合理模式。
梁...當然知道其中利害，是嚴重損害居民利益，卻居心叵測而破壞之。
更嚴重的是，原來梁帶來的律師，所涉及的律師費用，有人檢舉是管理公司支付。梁的行徑...是出賣了富怡，秘密串通供應商，誠信是受到質疑。
...
前法團主席梁志貞...即她們反對管理合約招標，讓其士富居長佔本苑，剝奪業主的選舉權，明顯的損害居民利益。
...曾任主席的梁，被業主斥責出賣富怡，操守差和無誠信。
48. In addition, the enclosure contained a photograph of the plaintiff (together with others) with her name printed underneath. Furthermore, certain wordings in the enclosure were revised and different from the words used in the original meeting minutes, for example, the caption大維修 was replaced with 天價大維修; (ii) the phrase 其實問卷統計，是不能代表業主意願 was replaced with 問卷作決定，真假無人知 and (iii) 118閘...大升10萬 was replaced with 勁升13萬. The plaintiff says that the defamatory effect of the publication is accordingly aggravated.
C9. The stings in overview
49. The stings should be self-explanatory from the above quotations. Ms. Connie Lee (appearing together with Ms. Ellen Pang), counsel for the plaintiff, has helpfully grouped the defamatory allegations into 7 categories, which the plaintiff says the 6 articles meant and were understood to mean:
|
Categories of Defamatory Statements and Allegations |
Article |
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(1) Defamatory statements arising from the renovation |
The 1st, 4th, 5th and 6th Articles |
|
(2) Defamatory statements arising from the tender process for the security service contract |
The 2nd Article |
|
(3) Defamatory statements arising from the replacement of the 118 Gate |
The 6th Article[3] |
|
(4) Allegations that the plaintiff persistently attempted to seize control of IO for ulterior motives causing chaos |
The 1st, 3rd, 4th and 5th Articles |
|
(5) Allegations that the plaintiff colluded with Chevalier |
The 6th Article |
|
(6) Allegations that the plaintiff did not properly discharge her duty as chairperson of the IO |
The 1st Article |
|
(7) Defamatory statements concerning the plaintiff’s behaviour and character, eg greedy, devious, deceitful, cunning, abusive, violent and lacks integrity |
The 1st, 3rd, 4th and 6th Articles |
C10. The defences in overview
50. As highlighted above, the main defences put forward by the defendant are truth (insofar as the statements are facts and if necessary the defendant relies on s.26 of the Defamation Ordinance, Cap.21, the “DO”), honest comment (insofar as they are comments and if necessary the Defendant relies on s.27 DO) and qualified privilege.
51. The defendant’s position is apparent from the written closing submissions of Mr Ken To, counsel for the defendant, that (at §§156-157):
“156. To echo D’s Opening Submissions, the background and context of the publication of the 6 Statements is highly exceptional. Not only were the financial interests of the Owners under a serious risk of jeopardy, the well-beings and personal safety of the Owners and their closest family members were also faced with escalating threats. The emotion permeated across the Estate was a mix of anger, fear and worries, which lasted all the way from 2011, and the matter has not been put to settle. In a view to protecting the interest of the Estate and ensuring the proper administration of the IO, the publication of these Statements was both necessary and appropriate.
157. In bringing to the attention of the Owners of the wrongful conduct, misconduct and irregularities effected by P and her team, D had to identify the problem, to pinpoint the wrongdoing, and to educate and alert the Owners. There may well be emotional and emphatic (or sometimes dramatic) wordings adopted by D in the Statements, but his honest belief in the truth in the comments and the very purpose of uniting the Estate in opposition to threats imposed can hardly be questioned or undermined.”
52. The defendant also says that certain statements did not refer to the plaintiff, but that only relates to certain stings in the 2nd and 3rd Articles.
53. There was also reliance on section 29A of the BMO. For reasons stated below, I am of the view that this statutory defence adds nothing to the defences of qualified privilege and honest comment.
D. Defamatory meaning and reference to the Plaintiff
D1. The law
54. The principles to determine whether words or statements are defamatory are well known. They have been comprehensively set out in Bawang International (Group) Holding Ltd v Next Magazine Publishing Ltd (unreported, HCA 1109/2013, 23.5.2016) at §§23-34 and Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328 at §§42-43. In gist, the Court puts itself in the position of a hypothetical reasonable reader and come up with a “single meaning” of the words complained of, and asks whether that meaning would lower the plaintiff’s estimation in the eyes of right-thinking members of the society and adversely affect his reputation. In other words, the parties’ subjective interpretation or understanding as to the meaning of the words used is irrelevant.
55. As to whether a defamatory statement refers to the plaintiff, the test is whether he or she “may reasonably be understood to be referred to by the words”: Gatley on Libel and Slander (12th edition) §7.2. It is not necessary for the plaintiff to be specifically named. If a defamatory statement refers to a class, the question is whether a reasonable reader could conclude that the plaintiff as an individual was pointed at: Gatley §7.9.
D2. Analysis
56. As stated above, the defendant does not seriously dispute that many of the statements contained in the 6 articles are defamatory of the plaintiff. This is a sensible position to take. I will briefly explain why, in my view, the 6 articles clearly contain defamatory statements that refer to the plaintiff.
57. For the 1st Article:
(1) The plaintiff was referred by her full name right at the start;
(2) The phrase “俾你做主席，妳乜都唔做” clearly refers to the plaintiff because she was the only other chairperson of the IO, as reinforced by the use of the feminine word “妳”;
(3) A reasonable reader would understand the 1st Article to mean that the plaintiff was keen to be the chairperson so that she could enrich herself by pushing through the renovation works, that the plaintiff was cunning and deceitful, and that she compromised the interests of the owners while she benefited. It would also be understood that the plaintiff did not properly discharge her duty as chairperson of the IO;
(4) A reasonable reader would further understand the 1st Article to mean that the plaintiff persistently tried to seize control of the IO and caused disruption and chaos for that purpose, and she resorted to verbal abuse or violence.
58. Concerning the 2nd Article:
(1) The plaintiff was referred to by her full name and her role as the former chairperson of the IO;
(2) The defendant argues that the plaintiff was only referred to in the 1st paragraph, that is the person who reduced the bidding price of Centurion, but she was not referred to as the subject for investigation (contained in the subsequent paragraphs). I am unable to accept this submission. When the 2nd Article is read as a whole, it is clear to me that the message in the first 3 paragraphs were connected and they were addressing the same issue (as shown by the use of the phrase 此舉 at the start of the 2nd paragraph that connects with the 1st paragraph);
(3) In my judgment, a reasonable reader would understand the 2nd Article to mean that the Plaintiff acted against the relevant rules and regulations by substantially reducing the tender price of Centurion Facility which led to its appointment (the 1st paragraph), and her misconduct was so outrageous and appalling that the ICAC found it necessary to investigate. The reasonable reader will also understand the statements to mean that the Plaintiff has committed a criminal offence (notwithstanding that a literal reading of the statements may not have gone that far), given the use of the phrases “東窗事發” and “明目張膽” which in Chinese would usually indicate the commission of an offence.
59. As to the 3rd Article:
(1) Although the plaintiff was not specifically referred to whether by name or by her capacity as former chairperson, in my view it is plain that a reasonable reader would have understood the statements as referring to the plaintiff. First, the 3rd Article was published only a few days after the 2nd Article (and around a month after the 1st Article), and they contain very similar allegations so the reader would understand that the context of the 2 publications to be identical. Second, the words “有人” in the phrase “如今有人將屋苑事務演變成政治鬥爭” would reasonably be understood to refer to the plaintiff given the context, because there is no evidence (and no suggestion) that anyone else apart from the plaintiff was interested in taking charge of the IO. Indeed, it is precisely the defendant’s case that the plaintiff was involved in or was the directing mind behind the “group” which caused disruptions and chaos. It is inconsistent for the defendant to assert that the “group” did not refer to the plaintiff;
(2) A reasonable reader would understand the 3rd Article to mean that the plaintiff had connections with triads (黑勢力) and she mobilized those members to cause chaos and disruptions to meetings (which required police intervention).
60. Regarding the 4th Article:
(1) It is clear that a reasonable reader would have understood the statements as referring to the plaintiff, for at least 3 reasons. First, the 4th Article contained very similar allegations as the earlier 3 articles. Second, the 4th Article refers to “上任法團” at the very beginning and makes reference to the renovation. Third, it refers to people who were attempting to seize control of the IO and that can only be reasonably understood to refer to the plaintiff;
(2) A reasonable reader would understand the 4th Article to mean that the plaintiff attempted (although ultimately failed) to benefit herself from the major renovation, and since then she attempted to regain control of the IO so as to have a “re-run”;
(3) It also referred to the plaintiff using deceptive means to obtain proxies and signatures in order to take control of the IO;
(4) The 4th Article would also be understood to mean that the plaintiff resorted to violence and verbal abuse to cause chaos and disturbances.
61. For the 5th Article:
(1) The plaintiff was referred to by her full name and her capacity as the former chairperson of the By Elected 1st MC;
(2) Similar to the earlier articles, a reasonable reader would understand the 5th Article to mean that the plaintiff forced through the renovation in complete disregard of the owners’ best interest and objections, that she harassed and disturbed the owners, and that she attempted to seize control of the IO in order to benefit herself from the major renovation.
62. Concerning the 6th Article:
(1) Both the letter and the enclosure clearly referred to the plaintiff. She was referred to in the letter by the title “前主席” (she was the only former chairperson apart from the defendant), and in the enclosure she was referred to by her full name and the title “前主席”;
(2) In very similar ways as the previous articles, the 6th Article, in particular the enclosure, was reasonably understood to mean that the plaintiff misled or deceived the owners in pushing through the renovation (including the use of the words “欺騙”, “誤導” and “蠱惑”);
(3) There were other matters addressed in the enclosure, including the 118 Gate and the management service contract for the Estate. In this regard, the 6th Article was reasonably understood to mean that the plaintiff was devious in dealing with these matters and she lacked integrity. There was also a reference to the fact that the plaintiff colluded with the management company (“秘密串通供應商”).
63. For these reasons, whether the 6 articles are to be considered holistically (although they were published over the course of more than 2 years) or individually, considering the proper context, there can be no doubt that the statements therein are defamatory of the plaintiff. My findings are in line with the plaintiff’s 7 categories of the complaints set out in paragraph 49 above, and in order to give structure to this Judgment I will adopt that categorisation in deciding whether any of the defences is made out. I will refer to the 7 categories of defamatory statements as “Categories 1 to 7” accordingly.
E. Qualified privilege – legal principles and preliminary issues
E1. The law
64. Qualified privilege arises where the occasion is such that the person who makes a communication has an interest or duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. The reciprocity is essential. See Adam v Ward [1917] AC 309.
65. The defence may be defeated by malice. In this context, malice means that the communication was made for some purpose other than that for which the privilege is accorded by the law: Albert Cheng v Tse Wai Chun Paul (2000) 3 HKCFAR 339 at §§52-54. The introduction of such matters or communications which were not in any reasonable sense germane to the subject matter of the occasion may have a bearing upon the issue of malice: Adam at 327, 348.
66. The proper approach is explained by the Court of Final Appeal in Jonathan Lu v Paul Chan Mo Po (2018) 21 HKCFAR 94 at §17. There are 2 questions to be addressed. First, was the occasion privileged, and if so, for what purpose? Second, was that the defendant’s purpose when he published the communication in question? The first of these is a question of law. The second is a question of fact.
67. In assessing the defendant’s purpose or motive, one needs to identify the dominant purpose for which the defendant made the communication in question. The defendant’s state of mind in relation to the truth or falsity of which is communicated is significant only insofar as it is evidence from which an inference can be drawn in relation to his dominant purpose in making the communication. Where the purpose for which the privilege is accorded is consistent only with the communication of a matter which is believed to be true, as is usually but not invariably the case, 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: Jonathan Lu at §§18-22.
E2. Was the occasion privileged and for what purpose?
68. Neither party has argued against the proposition that communications between the IO / MC and the owners regarding the management and administration of the affairs of the Estate are capable of being covered by qualified privilege. In my view that is clearly correct. There is an obvious reciprocity in the IO / MC having a duty in communicating, and the owners having an interest in receiving, information concerning the management and administration of the affairs of the Estate. The purpose of having the occasion privileged is such that the IO / MC and owners may have an uninhibited and 2-way opportunity to voice out or ventilate their concerns over matters about the management of their residences.
F. Justification – legal principles
69. The defence of justification only applies to imputations of facts. It is for the defendant to prove that the factual imputation that the words are decided to bear is substantially true: Gatley §11.6; United Muslim Association of Hong Kong v Yusuf Yu (unreported, HCA 640/2012, 14.5.2015) at §§106-107.
70. Further, section 26 of the Defamation Ordinance is worth mentioning. It provides that, in respect of words containing 2 or more distinct charges against a plaintiff, the defence shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.
71. The proper approach is succinctly summarised in Bawang at §78:
“78. Based on my finding on the meanings of the Article, I am satisfied that the Words, in their ordinary and natural meaning, bear stings defamatory to the Plaintiffs. In considering the defence of justification, the court then has to determine: (i) whether Words bear the Lucas-Box meanings as contended for by the Defendant; (ii) if so, whether as a matter of fact that any of all of the Lucas-Box meanings is true; and (iii) whether the proved meanings are sufficient to meet the libellous stings conveyed by the Words in the Article. It is only when each of the stings is properly met with true facts that the defence of justification succeeds.”
G. Honest comment – legal principles and preliminary issues
G1. The law
72. This defence (traditionally known as fair comment) was authoritatively analysed by the Court of Final Appeal in Albert Cheng. The elements of this defence are:
(1) The comment must be on a matter of public interest;
(2) The comment must be recognisable a comment (as distinct from an imputation of fact);
(3) The comment must be based on facts which were true or protected by privilege;
(4) The comment must explicitly or implicitly indicate, at least in general terms, what the facts were on which the comment was being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded;
(5) The comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views.
73. Even when a defendant has brought his case within these limits, he will not necessarily succeed in the defence. The plaintiff can still defeat the defence by proving that the defendant does not genuinely hold the view he expressed, or in other words, when making the defamatory comment the defendant acted dishonestly, and the test is subjective: Albert Cheng §§22-24.
74. I further bear in mind section 27 of the Defamation Ordinance which provides that:
“In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.”
G2. Public interest?
75. There is no dispute that the 6 articles concern issues that are of public interest (i.e. matters affecting the owners of the Estate).
G3. Comments vs facts
76. The line is not always easy to draw, but a comment is something which is or can reasonably be inferred to be a “deduction, inference, conclusion, criticism, remark, observation” etc.: Gatley at §12.8.
77. Although a statement may potentially be one of fact, the defence of honest comment is still applicable if such statement is best read as an evaluative opinion.
H. Category 1 – defamatory statements arising from the renovation
78. The defendant puts forward 3 defences: (1) justification, (2) honest comment and (3) qualified privilege (and section 29A of the BMO, which will be analysed in a separate section below). The factual matters relied on by the defendant in support of (1) and (2) are substantially the same. It is logical to first deal with them.
79. As mentioned above, the renovation is the focal point of most of the allegations raised in the 6 articles. I will therefore spend more passage in setting out the primary factual matters.
80. Broadly, the defendant complaints that the plaintiff (being the leader of the By Elected 1st MC) acted improperly in pushing through the renovation project, in that she:
(1) Presented the results of the survey or questionnaire on the renovation project in a misleading manner, and chose to merely rely on this instead of having the matter resolved in an owners’ meeting;
(2) Misled the owners that the fresh water of the Estate contained lead;
(3) Resolved to require the owners of the Estate to contribute HK$10,000 per unit before the IO had resolved to carry out the renovation project;
(4) Resolved to engage W&K as the project consultant before the IO had decided to carry out the renovation project, and handled the tender process for the project consultant unfairly by relying on anonymous volunteers;
(5) Handled the tender process for the contractors unfairly and in a hasty manner;
(6) Incorrectly imposed an additional requirement that the proxy forms must bear the chop of the IO, with the effect of rejecting otherwise valid proxies in the voting process.
81. These issues must be considered alongside the following background and context:
(1) When the defendant served as chairman of the 1st MC, a major renovation project was considered to be required. This was accepted by the defendant;
(2) After the plaintiff became the chairperson, the By Elected 1st MC followed up with the renovation project. Based on the recommendations set out in 2 Building Survey Reports issued in 2007 and 2010 respectively and a report prepared by Chevalier, the By Elected 1st MC proposed to replace (a) the freshwater pipes, (b) the drainage pipes and (c) the waterproof membrane on the rooftops;
(3) A questionnaire was issued to all owners and the survey results were announced on 17 February 2017;
(4) At a MC meeting held on 31 March 2012, it was resolved that W&K be engaged as the consultant for the renovation works;
(5) The proposed renovation works and the amount of contribution to be collected from the owners were then put forward as an agenda item of the 2012 AGM.
H1. The survey results
82. The defendant says that the plaintiff misled the owners on the survey results by stating that more than half of the owners agreed to carry out the renovation project, when in fact only 29.57% of the owners filled in the questionnaires.
83. The analysis of the survey results (issued to all owners) recorded that the IO issued 1870 questionnaires (ie one to each unit) out of which 553 were completed and returned, and more than half those returned questionnaires indicated agreement to the renovation. It was also stated that the 553 questionnaires constituted approximately 29.57% of all of the surveys issued. In cross-examination, the defendant accepted that the result, primary data and percentage were all clearly set out in the analysis. In my judgment, the owners were not misled.
84. The defendant further accepted that according to the survey results, more than half of the owners who had returned the questionnaires agreed to carry out the renovation project. He also confirmed that there was no evidence to suggest the survey results were false (有造假成份) or otherwise problematic.
85. Given the above matters, in my view, the defendant knew that the plaintiff did not use the survey results to mislead the owners. Furthermore and in any event, the matter would be discussed and voted upon in the 2012 AGM.
H2. The “lead water” issue
86. The defendant contends that the Plaintiff misled the owners by stating that the potable water of the Estate contained lead. I note that in the notice issued to all owners dated 29 March 2012, it was mentioned that “本屋苑原有的水管是含鉛的，長期飲用對身體健康有害，如今政府已立例禁止使用”. It is obvious that the plaintiff was not referring to the water that contained lead but the pipes.
87. There was then a debate in cross-examination whether the water pipes really contained lead. The matter does not arise for consideration, because the context of the letter was to inform owners that the pipes were problematic and the water quality was affected. This is in fact consistent with the 3 reports. In addition, the defendant accepted in cross-examination that the plaintiff is not an expert and it may well be the case that the plaintiff “reasonably misunderstood” (合理的誤解) that the freshwater pipes contains lead.
88. For these reasons, there is no basis to suggest that the plaintiff had misled or deceived the owners.
H3. The HK$10,000 contribution
89. Another compliant raised by the defendant is that the By Elected 1st MC resolved to require owners to contribute HK$10,000 per unit without obtaining the IO’s approval, which subsequently led to a letter from Messrs Au-Yeung, Cheng, Ho & Tin as aforementioned.
90. As recorded in the minutes (6th meeting of the By Elected 1st MC), the renovation works would have to be approved by the owners’ meeting. In relation to the contribution amount, the plaintiff explained that many owners understood that they have to contribute in the region of HK$10,000 but the amount could only be fixed after the project consultant had provided an estimate. The members of the By Elected 1st MC then discussed the number of instalments to be made and other related issues. In my view, the figure of HK$10,000 arose as internal exchanges among members of the By Elected 1st MC and it is tentative at best; it would appear to me to be a ball-park figure merely to facilitate discussion. This is also consistent with the fact that the renovation project would be put to vote in an owners’ meeting.
91. The decision to seek legal advice from Messrs Au-Yeung, Cheng, Ho & Tin, and that the advice is that the matter should be resolved in an owners’ meeting (I do not express a view on its correctness of its contents), are neutral. It does not indicate one way or the other that the By Elected 1st MC was seeking to circumvent the owner’s meeting in respect of the renovation.
92. In this regard, the defendant accepted in cross-examination that no steps were ever taken to collect monetary contribution from the owners. He also agreed that he had read the minutes of the 6th meeting and he agreed that his allegation was based on his own speculation (推測). Considering the contemporaneous documents and knowing that the renovation project including the amount of contribution were all along intended to be (and were in fact) put to vote in an owners’ meeting, in my judgment the defendant did not have any factual basis to make this line of complaint.
H4. The appointment of W&K
93. The Defendant raised several complaints in relation to the appointment of W&K. In summary:
(1) The By Elected 1st MC resolved to appoint W&K as a consultant without obtaining the owners’ approval;
(2) By relying on 3 anonymous volunteers to assess the potential candidates, the selection process was non-transparent and unfair;
(3) The By Elected 1st MC failed to disclose that W&K was suspected to be involved in bid rigging;
(4) W&K failed to provide a price estimate for the project.
94. The first complaint falls away as the defendant admitted in cross-examination that it was within the authority of the By Elected 1st MC to resolve to appoint W&K as a project consultant.
95. For the second complaint, the selection process was set out in detail in the minutes of the By Elected 1st MC’s 8th meeting:
(1) 17 candidates had submitted a tender. The By Elected 1st MC, having discussed with the volunteers and Mr Wong of Chevalier, then invited the 8 candidates with the lowest bid for an interview (one of the candidates did not attend the interview);
(2) Given budget constraints, the By Elected 1st MC would only consider the 4 candidates whose bids were under HK$100,000. Among those 4 candidates, W&K, 郭駿 and 永盛 were cheaper;
(3) 永盛 did not have experience in handling renovation projects for large estates;
(4) The By Elected 1st MC then proceeded to discuss the additional services offered by W&K and 郭駿;
(5) The plaintiff mentioned that there were 3 volunteers present at the interview who “scored” the candidates, but stressed that the volunteers had no right to select the project consultant and the scores were for reference only;
(6) Before the members took a vote, Mr Wong of Chevalier reminded the members that they had to consider all 17 candidates;
(7) The plaintiff abstained from voting.
96. It is plain that in reaching the decision to appoint W&K, the By Elected 1st MC took into account (as they should) various considerations including price, experience and scope of services offered.
97. The main complaint seems to be on the failure to disclose the identity of the 3 volunteers and the role they play in the selection process (if any). The plaintiff’s evidence is that she handed over the contact details of the volunteers to Chevalier. I see no basis not to accept her evidence.
98. In any event, the plaintiff also made it clear, and I accept, that the scores given by the volunteers were for reference only. It is difficult to see how their scores would compromise the fairness of the selection process. Further, representatives from the Home Affairs Department also sat in the 8th meeting and witnessed the entire discussion and voting process, so it is inherently difficult to see how the defendant may maintain an allegation of “black box operation” (黑箱作業) simply because the identities of the volunteers were not disclosed in the minutes.
99. Regarding the third complaint, I am unable to see how the so-called suspected bid-rigging on the part of W&K in relation to the renovation works of a separate housing estate in Shatin (富嘉) is relevant. In any case, the defendant attended the 9th Meeting of the By Elected 1st MC and raised an issue that the directors of W&K were suspected to be involved in bribery. The defendant however did not mention anything about bid-rigging. The defendant also accepted there was no evidence that the By Elected 1st MC had any knowledge of the supposed bid-rigging on the part of W&K. The final point is that the plaintiff did not even vote in favour of W&K. I am therefore not satisfied that this matter would have any bearing on the plaintiff’s handling of the selection process, still less that the plaintiff was involved in any misconduct.
100. For the last complaint, in the analysis report dated 20 July 2012, W&K advised the IO to consider the 4 candidates whose bid was 10% higher/lower than W&K’s price estimate. The obvious inference is that W&K had then already provided a price estimate for the renovation works. I also accept the plaintiff’s submission that this is in any event not a complaint of sufficient gravity to justify the wide-ranging attack against the plaintiff in the selection of W&K as consultant. Further, there was a consultation meeting (諮詢大會) held on 3 June 2012 attended by W&K and owners may raise queries with W&K directly (the defendant did not attend the consultation meeting so I will not give weight to his evidence as to whether the meeting was a “real” consultation).
H5. The tender process for contractors
101. The defendant’s complaints regarding the tender process for contractors are, in gist:
(1) The tender process was hasty, and W&K only provided the analysis report 2 days before the 2012 AGM when the owners would need to reach a decision;
(2) The tender price was not disclosed, or that it was unusually high.
102. It is not for me to judge whether the tender process was unreasonably hasty or not. But based on the objective facts, as recorded in the minutes of the 10th meeting of the By Elected 1st MC, the tender process was throughout advised and handled by W&K. There was no reason why the By Elected 1st MC or the plaintiff should doubt or question W&K’s advice. Further, as a matter of fact, 16 contractors were able to submit their tenders before the deadline.
103. In addition, as aforesaid a consultation meeting was held on 3 June 2012 where W&K would deal with owners’ questions. Further queries may also be raised at the 2012 AGM itself. Most significantly, if owners were of the view that they needed more time to consider their options, they were in a position to defer and adjourn the issue to another owners’ meeting before the matter may be voted upon.
104. Turning to the allegation that the plaintiff and the By Elected 1st MC did not disclose the price of the renovation project, it is relevant to some of the defamatory statements such as “無公布價錢”, “隱瞞價錢” (although I note the plaintiff’s argument that this does not form part of the defendant’s pleaded case). To briefly dispose of the point, W&K’s analysis report was issued on 20 July 2012. The information on tender price and the analysis report (including breakdown of items and price as well as W&K’s evaluation or assessment) was disclosed or made available before the 2012 AGM.
105. There is equally no substance to the point that the tender price was unusually high. The tender price was determined by the contractor over which the plaintiff (or the By Elected 1st MC) had no control. In any event, the owners were free to vote against the renovation project if they considered that the price was too high.
H6. The proxy issue
106. This issue arises because the By Elected 1st MC imposed an additional requirement that the proxy forms of the 2012 AGM must bear the chop of the IO. The plaintiff’s evidence is that the purpose of the arrangement was to enable owners to distinguish the proxy forms for the 7 July 2012 EGM and the 2012 AGM. On the other hand, the defendant contends that the additional requirement was imposed to reject some of the valid proxies and to allow the plaintiff to indirectly control the outcome of the voting process regarding the renovation project.
107. As recorded in the minutes for the 10th meeting, the By Elected 1st MC discussed how to enable owners to distinguish the proxy forms for the 2 meetings. It was agreed that the proxy forms of the 2012 AGM would have to bear the chop of the IO. Significantly, the plaintiff sought advice from the Home Affairs Department on the validity of the additional requirement, and the advice was that there would not be any problem (I am not asked to rule on the question whether the requirement in truth complies with the provisions of the BMO). In my view, the plaintiff cannot be criticised for relying on advice provided to her and for adopting a mechanism designed to avoid confusion (whether it is a good or effective measure is beside the point).
108. A copy of the proxy form bearing the IO’s chop was distributed to each unit and owners were free to collect extra copies from the management office if needed. The defendant’s point, taken at the highest, is that the additional requirement made it more difficult or time-consuming for him to collect proxies “on the spot” in the central park of the Estate (where he would campaign and persuade other owners to object to the renovation). The additional requirement did not stop or prevent owners from (1) giving proxies to others including the defendant who would attend the 2012 AGM, and/or (2) attending the 2012 AGM personally to vote in a way they see fit. There is no logical basis to contend that the additional requirement was linked to the forcing through of the renovation.
H7. Justification for Category 1
109. There can be no dispute that the defendant bears the burden to prove that the factual imputations are substantially true.
110. I have already endeavoured to set out my views on the various primary factual issues.
111. The defendant further invokes the defence of justification in respect of the following factual imputations concerning the renovation:
(1) That the plaintiff abused her position as chairperson of the MC and compromised the interest of the owners by forcing through the renovation works despite objections from the owners;
(2) The plaintiff deployed improper means and launched a “black box operation”;
(3) The plaintiff would enrich herself or otherwise derive a personal benefit if the renovation is implemented.
112. For reasons stated above, I find that there was nothing wrong or improper for the plaintiff to propose the renovation works. There is also no evidential basis to contend that the related matters were handled by the plaintiff improperly and unfairly to the prejudice of the owners. On the other hand, from the available contemporaneous documents, it would appear that relevant information was made available to the owners and it was up to them to decide whether to proceed with the proposal (including a choice of deferring the decision if they so wish).
113. In the circumstances, any allegation of abuse of power or “black-box operation” cannot be substantiated. In fact, during cross-examination, the defendant had to accept he had no concrete evidence for such assertion and that the basis for his speculation was flimsy.
114. As to the factual allegation that the plaintiff would enrich herself or otherwise derive a personal benefit if the renovation is implemented, it is a very serious allegation which, if true, may attract criminal sanctions. I am of the firm view that there is no evidence to show that the plaintiff would obtain personal benefits from the renovation project. The defendant conceded in cross-examination that there was no such evidence and it was only his own speculation.
115. For these reasons, the defence of justification is not available to the defendant in relation to Category 1.
H8. Honest Comment for Category 1
116. I accept the plaintiff’s submissions that most (if not all) of the defamatory stings in relation to the renovation project are imputations of fact. As such, the defence of honest comment is inapplicable. As examples:
(1) “上任法團，管理法團事務一年，實事少幹，在一眾反對聲中，硬推天價維修” describes the conduct of the By Elected 1st MC and is an imputation of fact;
(2) “有認識建築造價的居民指出，其工程費用報價，估計可能高出市價近1,000萬元” is allegedly a quote from some owners. It is plainly an imputation of fact;
(3) “在大多數居民反對聲中，卻一意孤行，並以通告作出種種，近乎欺騙居民的謊話” and “內容失實，誤導居民，企圖加劇大維修的必要性...” are factual allegations that the notices issued by the plaintiff were misleading and deceptive;
(4) “單單以5.2%問卷回覆，就強行起動大維修” is a factual statement that the Plaintiff commenced renovation based on the survey results alone;
(5) The phrases “再次欺騙業主，說大部份業主已經同意做大維修” , “想霸皇硬上弓，繞開（不開）業主大會，強行要業主夾錢做大維修” and “竟然隱瞞價錢，卻又要求業主集資” are factual descriptions of the Plaintiff’s conduct.
117. But insofar as the stings are comments, they are not based on true facts. I have resolved the primary factual issues above, and hence:
(1) The decision of whether to conduct the renovation project was throughout in the hands of the owners. Defamatory stings to the effect that the plaintiff attempted to force through the renovation despite owners’ objection are not based on true facts. Relevant defamatory statements include “硬推天價維修”, “強行上馬”, “接任法團的不顧業主反應，又狂推大維修”, “在大多數居民反對聲中，卻一意孤行”, “想霸皇硬上弓，繞開（不開）業主大會，強行要業主夾錢做大維修”;
(2) Defamatory stings alleging the plaintiff to have misled owners or employed dirty tricks or “black box operations” are also not based on true facts. Relevant defamatory statements include, for example: “並以通告作出種種，近乎欺騙居民的謊話”, “內容失實，誤導居民”, “再次欺騙業主，說大部份業主已經同意做大維修”;
(3) Defamatory stings that the plaintiff would derive a personal benefit from the renovation project are not based on true facts. Relevant defamatory statements include “二千多萬工程已是囊中之物，但見財化水”, “做法團係唔係有著數？死都要搶，兩年換一屆都等唔切，真係咁等錢洗”, “咁多個主席當中，妳最古惑、最夠膽去掠水”, “已經到口肥肉溜走了”, “職業攪事份子，當然是為了爭奪法團，爭甚麼？當然是為了利益”, “業主才恍然大悟，都是源於大維修的強大吸引力”;
(4) Defamatory stings suggesting that the plaintiff acted improperly or unfairly are not based on true facts. Relevant defamatory statements include “若說無古惑，肯定無人信”, “過程令人非議”, “荒謬兼離譜”, “簡直是欺騙”.
118. The defendant appears to rely on a dinner gathering involving梁北帶 (“Mr Leung”), a consultant to the 1st MC and a member of the By Elected 1st MC, to the effect that contractors offered to “buy votes” to generate revenue and those MC members who would venture to push through the renovation would receive personal benefits. I simply observe that even the defendant accepted that whatever he “felt” or heard during that dinner gathering, it had nothing to do with the plaintiff or the other members of the By Elected 1st MC.
119. Insofar as is necessary, I further find that the comments were made maliciously (ie they were not ones which could have been made by an honest person).
120. The defendant is well educated and very experienced with the operations of an IO. He also had access to all relevant information and documents at the time (at least after he became chairman of the MC for the 2nd term). Whatever dissatisfaction he might have with the handling of the renovation proposal, and taking into account the factual bases of those comments (or the lack of them), I am unable to accept that the comments (particularly suggestions that the Plaintiff had effectively committed criminal activities) were ones that could have been made by an honest person. For reasons given above, I am also of the view that the defendant knew that the comments he made were without any factual or evidential foundation.
121. Ultimately, whatever imperfections there might be regarding the way the renovation was proposed or handled, it is not open for the defendant to escalate his comments and allegations against the plaintiff to a wholly different level of seriousness including that of “improper motive”, “attempts to obtaining personal benefit” and “deceiving owners”. Whilst actuation by spite, animosity, intent to arouse controversy or other similar motivation does not by itself defeat the defence of honest comment, proof of such motivation may be evidence (sometimes compelling evidence) from which lack of genuine belief in the view expressed may be inferred: Albert Cheng at 360J-361A. I am satisfied that this is clearly such a case.
122. I therefore conclude that the defence of honest comment is not available to the defendant in relation to Category 1.
H9. Qualified Privilege for Category 1
123. This defence, in my view, can be briefly disposed of, because I have no hesitation in concluding that it is defeated by malice (i.e. the communication was made for some purpose other than that for which the privilege is accorded by the law). I have already explained above that, as a matter of law, the purpose of according privilege to communications between the IO / MC and owners is such that there is an uninhibited and 2-way opportunity for concerns or matters about the management of the Estate to be voiced out and addressed.
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 Luat §22.
125. I have explained above why, in my judgment, the defendant knew that the factual statements he made were untrue (or if they were comments, he was dishonest in that he knew that they were without factual or evidential foundation). For the same reasons, I am driven to the conclusion that the defendant did not publish the 6 articles for a proper purpose.
126. This conclusion is further reinforced by the fact that, once the renovation project was voted against by the owners at the 2012 AGM, it has never re-surfaced as an issue for any subsequent owners’ meeting (and this is confirmed by the defendant). As a consequence, I am unable to see any point or utility in repeating the issue in March 2013, let alone in August 2015 (when the 6th Article was published and when the renovation has been voted down for a full 3 years), as if it were an issue of ongoing interest.
127. On this basis, it is plain that the defamatory statements regarding how the renovation project was once handled during the term of the plaintiff’s office was not germane to the privileged occasions.
128. The defendant seeks to explain that there were on-going disruptions in the Estate to justify the ongoing discussion of the issue. I reject that explanation. For example, the 6th Article did not really address any ongoing disruptions or campaign. The focus was clearly how the renovation project was handled.
129. I also accept the plaintiff’s submission that the defendant’s revision of some of the words in the 6th Article is evidence against him in this regard. The defendant explained that the changes were made as he did not see the need to be so “critical” (尖銳), but I am unable to accept that explanation; on a proper reading, the revisions reinforces rather than reduces the defamatory effect of the statements. The natural inference of making these changes (which aggravates the defamatory effect of the statements) is consistent with the fact that the defendant did not publish (at least) the 6th Article for a proper purpose.
130. For these reasons, the defence of qualified privilege does not assist the defendant in relation to Category 1.
I. Category 2 - tender for security service contract
131. The 2nd Article is concerned with the tender of security service contract of the Estate. The defendant’s complaint is that the plaintiff unilaterally and unfairly reduced the tender price provided by Centurion Facility at the 2012 AGM without allowing other candidates a reasonable opportunity to respond, thereby unfairly favoured Centurion Facility.
132. The matter was recorded in Chevalier’s letter dated 1 August 2012. This is a contemporaneous record made by an independent third party and I give full weight to its contents. It was stated that:
(1) The reason for the revision was that Centurion Facility submitted its tender price based on the assumption that there would be 13 security guards, while all other tenderers submitted their tenders based on 12 security guards;
(2) Mr Wong of Chevalier considered that it would be fair to allow Chevalier to amend its tender price such that it would be based on 12 security guards, and sought the consent of the plaintiff and Mr Chan, the IO’s legal adviser;
(3) The reason for the revision of Centurion Facility’s tender price was explained to the owners at the 2012 AGM, and since no objection was raised and the owners proceeded to vote.
133. The defendant confirmed that he had read this letter from Chevalier at the time.
134. The contents of Chevalier’s letter are consistent with the plaintiff’s evidence, namely after Mr Wong had informed her that Centurion Facility wished to amend the tender price, she immediately sought advice from Mr Chan. She was advised by Mr Chan that the reduction of tender price would not be a problem so long as the owners understood what happened and were clear about the tender price.
135. I am of the view that there was no impropriety on the part of the plaintiff concerning the reduction of tender price by Centurion Facility. First, she was informed that there was a legitimate reason for the reduction and she sought and relied on legal advice. Second, the reason for the revision of tender price was clearly explained to the owners. Third, even on the defendant’s own evidence, Centurion Facility was selected by the majority of the owners because they had been serving the Estate, and so there was no indication that the price reduction had any connection with the voting result.
136. The defendant knew that ICAC investigated into the matter. He also knew there was no evidence to suggest that the plaintiff was the subject of the investigation and ultimately ICAC did not press charges against anyone.
I1. Justification for Category 2
137. The defendant invokes the defence of justification regarding the following factual imputations:
(1) That the plaintiff breached the relevant rules and regulations by substantially reducing the tender price submitted by Centurion Facility;
(2) That the plaintiff’s misconduct resulted in ICAC investigation; and/or
(3) That the plaintiff committed an offence and/or was subject to ICAC investigation.
138. Based on Chevalier’s letter, it is clear that the plaintiff cannot be criticised for breaching the relevant rules and regulations. She did not initiate the reduction of the tender price (Centurion Facility did), and the plaintiff sought and relied on legal advice.
139. Further, the defendant was holding a majority of the proxies at the 2012 AGM. If he genuinely thought that it was problematic to allow Centurion Facility to reduce the tender price, he should have registered his objection or requested to defer the voting. But he did not do so.
140. As to the latter 2 allegations, they are plainly untrue. The defendant can only prove that the ICAC made an investigation but the identities of the person(s) involved were unknown.
141. The defence of justification is therefore not made out.
I2. Honest comment for Category 2
142. I am not convinced that the stings are comments, but even if they are, they were not made based on true facts for reasons stated above.
143. I also accept the plaintiff’s submissions that the defendant was dishonest in making the comment (if it is a comment). This is particularly so when the defendant was present at the 2012 AGM holding the majority of the proxies at the meeting and yet agreed to proceed to vote on the issue. There is no basis for him to make the serious allegations against the plaintiff (違規 and 明目張膽) in the 2nd Article, especially in light of the matters stated in Chevalier’s letter.
144. This defence accordingly fails.
I3. Qualified Privilege for Category 2
145. Similar to Category 1, I find that the defence is defeated by malice. For reasons given above, the defendant knew that the factual statements he made were untrue (or if they were comments, he was dishonest in that he knew that they were without factual or evidential foundation).
J. Category 3 – the 118 Gate
146. This is only a peripheral matter and I intend to be brief. It was raised in the 6th Article, and the sting is that the plaintiff was devious in dealing with the matter and she lacked integrity (with the specific phrase好古惑).
147. The defendant only relies on the defence of honest comment and qualified privilege and basically contends that:
(1) The plaintiff misled the owners that the original plan for the 118 Gate could not be carried out due to technical difficulties;
(2) The plaintiff misled the owners by saying that a smaller gate would be built at around 10% of the originally proposed cost (HK$400,000), implying a cost of between HK$40,000-50,000, but the total cost turned out to be significantly higher.
148. The matter is encapsulated in the MC’s letter dated 21 April 2012:
“118大閘經顧問公司研究後，本委員會認為工程費用昂貴（費用達40多萬以上），且有技術性問題難以解決，經我們商議後建議在第二座車路旁邊另開一小門代替，費用只需大閘之約10%，已在第八次管理委員會會議上通過，並由顧問公司跟進。”
149. The circumstances leading to the decision of replacing the 118 Gate with a smaller gate is recorded in the minutes of the 6th meeting:
(1) At the meeting of the 1st MC on 11 December 2010, Wealthy Gate (裕基) was selected as the consultant for the construction of the 118 Gate. The consultancy fee was agreed to be HK$30,000;
(2) In December 2011, Chevalier contacted Wealthy Gate for an estimate of the construction price. Wealthy Gate replied that it would be around HK$235,500. As the estimate was quite significant, the By Elected 1st MC took time to consider the matter;
(3) After discussion between Chevalier and members of the By Elected 1st MC, it was suggested that a smaller gate be built to minimise cost;
(4) Wealthy Gate agreed to see if the construction of a smaller gate was feasible, and the By Elected 1st MC resolved to invite Wealthy Gate to study the option of building a smaller gate without additional charge.
150. The minutes of the 6th Meeting also recorded a consultation session on this issue:
(1) The defendant attended the consultation session; and
(2) The By Elected 1st MC explained the reasons for not proceeding with the construction of the original 118 gate since the construction cost was high (approximately HK$200,000, excluding other ancillary facilities like the Octopus system) and it was unclear whether the gate was feasible because the ground was uneven (地面暗斜).
151. At the 8th meeting, the By Elected 1st MC followed up with the matter:
(1) Wealthy Gate advised that the construction of the smaller gate was feasible, and agreed that the HK$30,000 consultancy fee would remain unchanged;
(2) The members of the By Elected 1st MC discussed the option of replacing the 118 Gate with a smaller gate. Wealthy Gate’s advice was that there were technical difficulties in building the 118 Gate (裕基所給的意見是緊急消防閘口出口有斜位及去水渠，要在此造一道大閘有難度);
(3) It was resolved that the construction of the 118 Gate be replaced by a smaller gate.
152. At the 9th meeting, there were further discussions on the construction price of the smaller gate. The defendant attended the meeting and raised questions which were addressed:
“業戶楊先生說：是不是港幣4萬元可以完成...”
管業經理黃子興先生表示新出入口除安裝新門外，另需加設八達通拍卡系統及閉路電視系統及其他配套設施未計算在內”
153. In view of these contemporaneous records, I find that the plaintiff did not mislead the owners by saying the original plan could not be carried out due to technical difficulties, and the defendant well knew this fact. It was indeed Wealthy Gate’s advice and the plaintiff was duly relaying the information to the owners. Whether the advice was correct or appropriate is irrelevant.
154. I further find that the defendant knew that the estimate of HK$40,000 was only for the installation of the new gate and did not include the installation of the Octopus and CCTV systems and other services, and hence the plaintiff did not mislead the owners in this regard.
155. On this basis, it is clear that the defences of honest comment or qualified privilege are rebutted by malice. I also add that 118 Gate issue was not germane to the subject matter when the 6th Article was published in August 2015. The construction of the small gate was already completed at the time of the publication of the 6th Article. The defendant also agreed that, insofar as the 118 Gate issue was concerned, all matters were already settled (塵埃落定), and so there was no further need to discuss with the owners.
K. Category 4 – seizing control of the IO and causing chaos
156. Again I intend to be brief in my analysis because the position should be quite plain.
157. In the 3rd Article there was an imputation that the plaintiff had connections with triads (黑勢力) and she mobilised them to cause disturbances in the Estate. The defendant does not suggest that this was factually true, and very properly Mr To did not put to the plaintiff that she had such connections.
158. Similarly, in the 4th Article, the defendant contends that there were forged signatures when the plaintiff (and her team) pushed for a re-election. Leaving aside the Plaintiff’s involvement in this election campaign (the plaintiff’s evidence was that she was merely assisting others to become members of the MC), there is simply no evidence to justify the very serious allegation of forging signatures, still less that the plaintiff was implicated in that process. Indeed, the police did not lay charges against anyone after the defendant reported the matter.
159. In my judgment, there can be no defence to these serious defamatory stings, whether under justification or qualified privilege (or honest comment, if any of them should be found to be a comment).
160. As to the statement “絕不能讓別有用心的人，掌管富怡法團，他們食髓知味，必定狠狠的斬殺富怡這塊肥豬肉，翻炒天價維修” in the 4th Article, the defendant accepted in cross-examination that there was no evidence that anyone was bringing up the renovation proposal again. This defamatory statement is plainly uncalled for and, again, none of the defences would assist the defendant.
161. Once these core matters are resolved, I see no real utility in determining whether there were other disturbances brought about by the plaintiff, and hence whether other defamatory stings regarding the plaintiff trying to seize control of the IO and causing other disturbances can be protected by the defences. I simply note that the defendant accepted in cross-examination that the plaintiff never used violence or abusive or foul language against him or other members of the MC, and his complaint was at most that the plaintiff spoke loudly and disrupted the meetings.
L. Category 5 – alleged collusion with Chevalier
162. This arises from the 6th Article,with the key defamatory sting “秘密串通供應商，誠信是受到質疑”.
163. The defendant published such defamatory sting on the sole basis that the plaintiff had challenged the validity of the proxy forms for the owners’ meeting held on 28 August 2014, at which there would be a discussion on whether the “automatic renewal provision” in the management contract with Chevalier should be cancelled.
164. There is no basis to suggest or even speculate that since the Plaintiff challenged the validity of the proxy forms, there was collusion between Chevalier and the Plaintiff (which is a serious allegation):
(1) If the proxies had no issue, the voting should go on. This was accepted by the defendant;
(2) If the proxies had issues, it would have to be rectified and the owners might need to convene another meeting. Again, this was accepted by the defendant;
(3) If the majority of the owners were in favour of cancelling the automatic renewal provision, they were able to do so in an open and fair setting;
(4) As a matter of logic or common sense, to draw on the plaintiff’s challenge to the validity of the proxies and have it escalated to a collusion and an explicit attack on the plaintiff’s integrity is plainly unjustified, and I find that the defendant must have recognised this.
165. For these reasons, there can be no defence to these defamatory stings, whether under justification or qualified privilege (or honest comment, if any of them should be found to be a comment). I should record that the defendant was aware that the plaintiff had in the past tried to negotiate better terms of the management contract for the benefit of the owners, ie requiring less shares (20% as opposed to 30%) to terminate Chevalier’s services. This was clearly set out in the minutes of the 6th meeting, and this is a point against his honesty in publishing the relevant defamatory stings (or his dominant purpose in doing so). I further accept that by the time of the 6th Article (August 2015), a full year had passed since the meeting on 28 August 2014 and there was no proper purpose for the defendant to raise this matter again.
M. Category 6 – no proper discharge of duties
166. This statement appears in the 1st Article. In order to justify that the plaintiff did not properly discharge her duties as the chairperson, other than the matters already addressed above, the defendant made a number of complaints about the work of the By Elected 1st MC including the following:
(1) The plaintiff delayed in signing the management contract with Chevalier;
(2) The plaintiff unnecessarily incurred costs to re-audit the financial statements and unfairly accepted a revised bid from Elite Partners;
(3) The plaintiff allowed the By Elected 1st MC to select a contractor for the Building Energy Efficiency Scheme without owners’ approval.
167. In the scale of things, and given my ruling above on the key issues, these complaints are at best peripherally relevant. I therefore do not intend to deal with them at great length.
168. The starting point, which the defendant accepts, is that each MC might handle things differently. Simply because the defendant disagreed with a particular decision or how things were handled did not mean that it was by itself inappropriate or problematic.
169. For the management contract with Chevalier, I accept the plaintiff’s evidence that after the By Elected 1st MC took over, there were difficulties in following up with the matter:
(1) At that time, members of the By Elected 1st MC were not fully aware of the terms agreed between Chevalier and the 1st MC;
(2) Subsequently, Mr Yeung, vice chairman suggested engaging a legal consultant to review the contract in order to protect the interest of the IO. After discussion, the members resolved to engage lawyers to review the terms of the draft contract;
(3) There were also negotiations in terms of the threshold of votes sufficient to terminate Chevalier’s services.
170. I therefore find that the plaintiff and the By Elected 1st MC cannot be criticised for not signing the management contract immediately after they took over.
171. As for the re-audit exercise, the reason was set out in the minutes of the 6th meeting:
“由於前任司庫沒有交出有關審核其士的有關過去帳目文件，故此經與司庫商議後決定...審核過往3個財政年度的帳目”
172. The defendant has offered no basis to doubt the accuracy of this statement or the judgment of the incumbent Treasurer.
173. The tender process was also documented in the minutes of the 6th meeting:
(1) 12 candidates were invited to provide a tender, but only 4 of them replied;
(2) After the MC decided to conduct re-audit for the past 3 years instead of 2, all 4 candidates were invited to provide a revised quote;
(3) Elite Partners was chosen because it submitted the lowest bid.
174. I am unable to discern any issue with the tender and selection process.
175. Lastly, for the selection of a contractor for the Building Energy Efficiency Scheme, the defendant’s complaint is based on a letter issued by MCL Environmental Technology Limited (“MCL”), the consultant for the Energy Efficient Project (“EEP”), to the EMSD dated 3 July 2012. The letter stated that the lowest bidder did not submit adequate technical information and the IO would like to seek EMSD’s consent in accepting the second lowest bidder.
176. This letter preceded the 2012 AGM, and the defendant contends that the By Elected 1st MC had secretly and inappropriately jumped the gun (偷步) and selected a supplier before obtaining the owners’ approval. I am unable to accept the defendant’s criticism, and I find that he had knowledge of the following:
(1) The background of issuing the letter was recorded in the minutes of the 10th meeting. Mr Wong of Chevalier reported that the IO was required to choose the tender with the lowest bid under the EEP. The supplier with the lowest bid was佳柏. However, MCL advised that the light tubes supplied by 佳柏 failed to meet safety requirements and it was necessary for 佳柏 to explain the issue. 佳柏 did not submit the requested technical information and so MCL wrote to EMSD for approval to pick the second lowest bidder instead;
(2) All relevant information concerning the tenders provided by the suppliers (including 佳柏) were available to the owners to make an informed choice. The By Elected 1st MC did not “force” or pre-decide the identity of the contractor; MCL’s letter merely enabled the owners to choose not only the lowest bidder but also the second-lowest.
177. For these reasons, the defendant did not have any basis to contend that the plaintiff did not properly discharge her duties as the chairperson. In my judgment, there can be no defence to this defamatory sting, whether under justification or qualified privilege (or honest comment, if it is a comment).
N. Catrgory 7 – statements concerning the plaintiff’s character
178. There are numerous defamatory stings suggesting that the plaintiff was cunning, devious, greedy, abusive and violent.
179. For reasons stated above, I am not satisfied that the defendant has any factual basis to criticise the plaintiff’s character or integrity. Again, the defences of justification or qualified privilege are not available to the defendant (honest comment is also not available, if the stings are comments).
180. I should add that the defendant’s attacks on the plaintiff’s personality, integrity or character, rather than making objective or constructive criticisms on the subject matters for proper administration of the Estate or reasonable protection of the IO’s interest, are indicative of his improper purpose in publishing these defamatory statements. I agree with the plaintiff’s submission that the tone and the choice of words showed that the defendant was trying to arouse amongst the owners a feeling of disgust or hatred against the plaintiff, and the words went too far beyond the reasonable and proportionate bounds for which the privilege was accorded by law.
O. Section 29A BMO
181. Section 29A BMO provides that (emphasis added):
“(1) No member of a management committee, acting in good faith and in a reasonable manner, shall be personally liable for any act done or default made by or on behalf of the corporation –
(a) in the exercise or purported exercise of the powers conferred by this Ordinance on the corporation; or
(b) in the performance or purported performance of the duties imposed by this Ordinance on the corporation.
(2) ...”
182. It is plain that the section is only applicable where a defendant acts in good faith and in a reasonable manner: Wing Hong Investment Co Ltd v Fung Sok Han [2016] 1 HKLRD 1 at §360.
183. Given my findings above, I do not consider the defendant to have been acting in good faith and in a reasonable manner when he published the 6 articles. I therefore conclude that this statutory defence is unavailable to the defendant.
P. Quantum
P1. The approach
184. The purpose of general damages is to compensate the plaintiff for the effects of the defamatory statement, and serve 3 functions: to act as a consolation to the plaintiff for the distress he suffers from the publication; to repair the harm to his reputation; and as a vindication of his reputation: Gatley §9.4.
185. Aggravated damages may be awarded if the conduct or motives of the defendant aggravates the injury done to the plaintiff. A vigorously conducted bona fide defence might increase the hurt suffered by the plaintiff, and a fortiori a defence conducted in bad faith might increase the hurt still further. However, since general damages are anyway “at large”, and its quantification already contains an in-built element for injury to feelings, it is not easy to see how one should disentangle the “pure” compensatory damages and aggravated damages, although it has been said that if a single award is to be made, it should be indicated how that is made up between general and aggravated damages: Gatley §§9.18-9.21.
186. In assessing quantum, the Court will not adopt a mechanistic approach. The Court is entitled to take into consideration a wide range of matters including the plaintiff’s conduct, her credibility, her position and standing, the impact that the libel has had on her, the nature of the libel, its gravity, the mode and extent of its publication, the absence or refusal of any retraction or apology, and the conduct of the defendant from the time when the libel was published down to the time of verdict or judgment: The IO of Tung Lo Court v Tsui Wai Yip [2015] 4 HKLRD 397 (CA) at §60.
187. In mitigation of damages, the plaintiff’s general bad reputation is admissible although it must be confined to the sector of the plaintiff’s character relevant to the libel: Gatley §§33.30, 33.33 & 33.38.
P2. Assessment of general damages and aggravated damages
188. I have taken into account the various authorities cited by the parties. In my view, 2 of them are particularly relevant.
189. The first is Mok Kam Kwai v Lam Mo Fat (unreported, HCA 1868/2010 6.3.2014), where the plaintiff was the chairman of a Rural Committee in Shatin and a member of that District Council. He was libeled by the defendant by banners outside the relevant village. The defamatory imputations were: (i) the plaintiff did not act in the interest of the village or the Rural Committee; (ii) he did not fulfill his duties as chairman by failing to act in the interest of the village or the Rural Committee; (iii) he acted in the interest of a developer contrary to the interest of the village; (iv) he was incompetent; and (v) he acted so as to obtain benefit for himself. The plaintiff was awarded HK$400,000 in general damages.
190. I consider this case relevant because the defamatory stings are not dissimilar to the present case. The defamatory attacks in both cases were directed personally against the plaintiff while they were in an office of honour. Nevertheless, the plaintiff in Mok Kam Kwai was the chairman of an office that is arguably more “public” while the plaintiff here was the chairperson of the MC, which by its nature is more exclusive or private to the owners. In addition, the banners in that case were put up in a place where there was often heavy traffic and so the contents would have been seen by a substantial number of people passing by including the general public (§76), while here the 6 publications were issued to the owners of the Estate (although the number is not small by any means). I further note that the Court refused to give aggravated damages in Mok Kam Kwai.
191. The second authority is 東廬大樓業主立案法團 對 徐偉業 (DCCJ 3333/2011, unreported, 4/8/2014), being the first instance decision of The IO of Tung Lo Court (supra). The plaintiff there was the IO itself. It was attacked as being a “black” IO, that it acted against the best interest of the owners and there was no transparency. At trial, HK$400,000 was awarded in general damages on the basis that there were 4 defamatory articles. On appeal, the award was reduced to HK$200,000 on the basis that the trial judge ought to have found that only 1 of the articles referred to the plaintiff.
192. Again I consider that the defamatory stings in 徐偉業 are quite similar to the present case, although here there are 6 articles that are defamatory of the plaintiff, and their publication spun over a period of close to 2.5 years. Furthermore, the plaintiff in 徐偉業 is a corporate plaintiff (although not in the true sense of the term as in a commercial entity) as opposed to a personal plaintiff, and it is said in Gatley §9.17 that generally a personal plaintiff should have a higher award because there can be no injury to a company’s feelings. I again note that the Court declined to award aggravated damages in 徐偉業.
193. Taking into account all the circumstances of this case and inflation, and adopting a global approach, I award HK$400,000 to the plaintiff as general damages.
194. I have seriously considered whether it is appropriate to award aggravated damages to the plaintiff, where the defendant has not offered an apology (notwithstanding a pre-action letter from the plaintiff demanding one) and has maintained that he was entitled to publish those defamatory statements against the plaintiff (by relying on the various defences set out above). Nevertheless, those will be factors that are present in most defamation cases that are tried. I have also taken into account the factors relied on by the plaintiff in her closing submissions (§215). Similar to Mok Kam Kwai, I am not satisfied that the defendant’s conduct has reached the threshold for aggravated damages to be awarded.
P3. Mitigation
195. In mitigation, the defendant alleges that the plaintiff has a generally bad reputation. The defendant relies on are a few letters supposedly written by some owners (they did not give evidence, so their contents are at best hearsay) who expressed dissatisfaction with the plaintiff or her / the IO’s work.
196. I can dispose of this point briefly. I accept the plaintiff’s submission that the evidence adduced by the defendant is far from sufficient to establish a generally bad reputation on the part of the plaintiff. In the administration and management of such a sizeable housing estate, there are bound to be very different views among the owners as to how things should be organised or done. There will invariably be owners who disagreed with the work of the plaintiff. But that is a far cry from proving that the plaintiff had a generally bad reputation.
Q. Injunction
197. The Court will grant a final injunction in defamation cases if it is satisfied that the words and statements are injurious to the plaintiff and there is reason to apprehend further publication by the defendant: Gatley at §9.41.
198. I bear in mind that the 6 publications are plainly injurious to the plaintiff’s reputation for reasons stated above. I further take into the fact that the 6th Article was made in August 2015, a full 3 years after the plaintiff ceased to be the chairperson of the MC. Clearly the passage of time has not allowed the matter to die down.
199. Furthermore, there was no retraction or withdrawal of the defamatory statements up to trial and the defendant has not offered an apology; rather he has been defending on the basis that he was fully entitled to make those publications.
200. I therefore conclude that there is a real risk that there may be further publications by the defendant of those defamatory statements or words of similar effect.
201. For these reasons, I will grant a final injunction in favour of the plaintiff to restrain any further or future publication of the 6 articles and of similar words as that of those statements.
R. Conclusion
202. For the above reasons, I enter judgment against the defendant in the sum of HK$400,000. I will also grant an injunction restraining the defendant, whether by himself or with others or through his agents or servants or those acting under his instructions whosoever where appropriate, from howsoever publishing and/or causing the publication of and/or participating in the publication of the 6 articles and/or other similar words and/or representations defamatory of the plaintiff.
203. This has been a long judgment. I hope I have comprehensively dealt with the most pertinent issues and made the requisite findings. For the “peripheral stings” I have been relatively brief in terms of reciting the background matters or explaining my findings. That does not mean I have overlooked those matters or the parties’ arguments on those issues. It is simply to keep the judgment to a reasonable length such that it is comprehensible and readable.
204. I have not heard submissions on the question of interest. I will make an order nisi that interest be calculated at judgment rate from the date of writ until payment. That would appear to be a conventional order in similar cases: Tam Heung Man v The IO of Lung Poon Court (Blocks A-F) [2019] HKDC 401, 26.3.2019; Li Kam Fung v Fong Tsz Kit [2018] HKDC 1252, 31.10.2018.
205. Costs should follow the event. I make an order nisi that the plaintiff do have costs of this action including all costs reserved, to be taxed if not agreed on a party and party basis, with certificate for 1 counsel. I have considered the possibility of awarding indemnity costs in favour of the plaintiff but have decided against it, this being the run-of-the-mill cases where the defendant puts up a defence and lost, and there is nothing exceptional in terms of his conduct that justifies a higher costs scale. That of course is only my provisional view (on a nisi basis); there well may be matters which parties may wish to make submissions.
206. Any party wishing to vary the nisi orders on interest and costs shall apply by summons within 14 days, failing which the orders shall become absolute. Upon any such application, I will give directions as to whether the application may be disposed of on paper.
207. Lastly, I apologise for the delay in handing down this judgment, and I am most grateful to counsel’s assistance in this matter.
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( Vincent Lung ) |
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Deputy District Judge |
Ms Connie Lee, leading Ms Ellen Pang, instructed by Tsui & Lok, for the plaintiff
Mr Ken To, instructed by Liu, Chan & Lam, for the defendant
[1] I am conscious that the term “malice” has a different meaning in the context of qualified privilege and honest comment. See below for the relevant legal principles.
[2] See P’s Closing Submissions §11
[3] Ms Lee’s categorisation included the 5th Article as containing allegations arising from the 118 Gate but I note that it is not a pleaded complaint for that article.
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