LO CHI LIK ERIC v. YUEN CHI HO CHRIS

DCCJ 2702/2016

[2020] HKDC 1255

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2702 OF 2016

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DECISION

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1.  This is the plaintiff’s application for leave to appeal against my judgment dated 22 April 2020 (“the Judgment”).

2.  I have set out the background of the case in paragraphs 2 – 17 of the Judgment and do not intend to repeat the same.  I shall also adopt the same abbreviations used in the Judgment.

THE INTENDED GROUNDS OF APPEAL

3.  The plaintiff raises 11 intended grounds of appeal against my findings in respect of the 2^nd Statement and 5^th Statement.  I summarize the grounds as follows:-

(1)     In respect of 2^nd Statement:

(a)     The court has erred in finding that the defence of justification was made out:

(i)     The finding that the plaintiff “may” have committed plagiarism is not sufficient to prove the defence of justification. (Intended Ground 1)

(ii)    The findings in paragraph 94 – 97 of the Judgment are inconsistent with the defendant’s pleaded case and without evidential basis. (Intended Grounds 2 and 3)

(iii)   The court erred in finding the plaintiff may have committed plagiarism.  The issue of plagiarism is non-justiciable by reason of being an academic judgment. (Intended Ground 4)

(2)     In respect of the 5^th Statement:

(a)     The court erred in finding the defence of justification made out:

(i)     Both meanings set out at paragraph 42 of the Judgment have not been made out. (Intended Ground 5)

(ii)    Paragraphs 117 – 120 of the Judgment are inconsistent with the defendant’s pleaded case and without evidential basis. (Intended Ground 6 and 7)

(iii)   The court erred in finding the plaintiff may have committed plagiarism.  The issue of plagiarism is non-justiciable by reason of being an academic judgment. (Intended Ground 8)

(iv)    The court erred in finding the defendant was justified in stating the plaintiff’s conduct was unreasonable. (Intended Ground 9)

(b)     The court erred in finding the defence of fair comment made out:

(i)     The court relied on facts not pleaded by the defendant. (Intended Ground 10)

(ii)     The court erred in finding the defendant was not actuated by malice. (Intended Ground 11)

4.  I have considered counsels’ submissions and the authorities cited.  I do not propose to answer each and every submission made but shall deal with the salient arguments made when considering the intended grounds of appeal.

THE LAW

5.  Leave to appeal is granted when the intended grounds advanced have reasonable prospects of success.

6.  In Ho Yuen Ki Winnie and anor v Ho Hung Sun Stanley and anor, HCMP 1009/2009, (unrep), Le Pichon JA stated at paragraph 16 of the judgment:-

“For leave to be granted, this court must be satisfied that the appeal has ‘reasonable prospects of success’. Merely showing that the appeal is ‘arguable’ and ‘not fanciful’ would not be sufficient. In my view, ‘reasonable prospects’ requires something more and, in that regard, some assistance may be derived from the test applied when setting aside a default judgment.”

7.  In KNM v HTF, HCMP 288/2011, (unrep), Fok JA (as he then was) stated at paragraph 9:-

“The relevant test of whether an appeal has a reasonable prospect of success under section 63A is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than ‘fanciful’ but which do not need to be shown to be ‘probable’”.

ARGUMENTS RELATING TO PLAGIARISM (INTENDED GROUNDS 1, 4 AND 8)

8.  Counsel for the plaintiff (not being the trial counsel), Mr Siu, conceded the issue of whether the court can adjudicate on the issue of plagiarism is raised for the first time in this leave to appeal application.  It was never raised at the trial hearing.

9.  Having considered counsels’ arguments and the authorities cited, I am of the view there are 2 problems with Mr Siu’s argument on this issue.

10.  First, Mr Siu accepts my finding on the natural and ordinary meaning of the 2^nd Statement to be correct, yet challenges my competency to adjudicate on whether the defence of justification can be made out.  I find this to be an inherent fallacy in Mr Siu’s argument. 

11.  The plaintiff’s own pleaded case on the natural and ordinary meaning of the 2^nd Statement is the plaintiff committed “self-plagiarism and/or breach of copyright”.  Submissions at trial were mainly focused on the self-plagiarism aspect, with little reference made to the breach of copyright element.  In the Judgment, I accepted the plaintiff was able to establish the pleaded meaning and found the natural and ordinary meaning of the 2^nd Statement to be the plaintiff committed self-plagiarism.  This finding is accepted by Mr Siu to be correct.

12.  If Mr Siu’s argument on this issue is to be accepted and the court should not or could not have made a determination on plagiarism, it must also be accepted the plaintiff’s case on the 2^nd Statement (in so far as it relates to whether 2^nd Statement meant the plaintiff committed self-plagiarism) is equally non-justiciable.  In other words, if the issue of plagiarism is non-justiciable, the court would not be in a position to determine whether the 2^nd Statement carried the natural and ordinary meaning pleaded, namely, the plaintiff committed self-plagiarism.

13.  The consequence following from Mr Siu’s argument must be that the plaintiff’s pleaded meaning of the 2^nd Statement (in so far as it relates to whether the plaintiff committed self-plagiarism) would not be made out and/or proved regardless of whether the defendant is able to prove his defence. 

14.  Secondly, Mr Siu’s argument on the competency to rule on plagiarism, in so far as it relates to the 2^nd Statement, is inconsistent with other intended grounds of appeal advanced in respect of the same statement.

15.  On one hand, Mr Siu argues I erred in ruling on plagiarism (Intended Grounds 4 and 8).  On the other hand, Mr Siu argues I erred in finding the defence of justification made out because I did not make a definitive finding the plaintiff did commit plagiarism (Intended Ground 1).  I note these intended grounds of appeal are not advanced in the alternative.

16.  The underlying premise of Mr Siu’s argument in his Intended Ground 4 must be that I found the plaintiff to have committed self-plagiarism.  If the plaintiff is to succeed on the said intended ground of appeal, the plaintiff must first successfully establish I made a finding of plagiarism.  For Mr Siu to then advance the argument I had not definitively made a finding on plagiarism in respect of the 2^nd Statement (Intended Ground 1) is to negate the very premise on which he bases his Intended Ground 4 on.

17.  It is therefore unclear whether in fact the plaintiff argues I have or I have not made a finding of plagiarism in respect of the 2^nd Statement.

18.  In so far as the plaintiff argues I have found the plaintiff “may have” committed plagiarism in respect of the 5^th Statement (Intended Ground 8), this argument is erroneous.  If one reads the Judgment carefully, it will be apparent I made no such finding in respect of the 5^th Statement.

19.  By reason of the matters set out above, I do not accept Intended Grounds 1, 4 and 8 have any reasonable prospects of success.

ARGUMENTS RELATING TO WHETHER THE FINDINGS IN THE JUDGMENT ARE INCONSISTENT WITH THE DEFENDANT’S PLEADED CASE AND WITHOUT EVIDENTIAL BASIS (INTENDED GROUNDS 2, 3, 6 AND 7)

20.  The plaintiff argues that the findings in paragraphs 94 – 97 and 117 – 120 of the Judgment are inconsistent with the defendant’s pleaded case and the findings in the aforesaid paragraphs of the Judgment are made without evidential basis.  With due respect to counsel, I am of the view his submissions are mistaken.

21.  During the plaintiff’s evidence at trial, he contended the SSD paper was in draft form only and therefore, in summary, it could not be said he committed plagiarism.  The findings at paragraph 94 – 97 are an analysis of whether the said contention is believable and can be accepted by the court.

22.  Furthermore, the analysis in the paragraphs 94 – 97 are based on the documentary evidence submitted and relied on at trial.  As rightly pointed out by Defence Counsel, the court is entitled to make inferences from the available evidence.

23.  As for the plaintiff’s submissions relating to paragraphs 117 – 120 of the Judgment, I again find his submissions mistaken.  Paragraphs 117 – 120 cannot be read in isolation.  Paragraphs 114 – 122 of the Judgment set out my analysis of why I came to the view it was unreasonable for the plaintiff to fail to acknowledge the defendant’s contribution to the ICDE paper.

24.  The finding at paragraph 120 is primarily based on a reading of the VLDB paper and the ICDE paper, and the plaintiff’s own evidence.  I therefore fail to see how there was no evidential basis for the court to make the same findings.

25.  The finding the ICDE paper used or considered the test results of the VLDB paper is within the defendant’s pleaded case at paragraph 13(3) of the Defence which reads as follows:-

“The areas of research covered by the VLDB Paper and the ICDE Paper were primarily or substantially similar. Although words used in the VLDB Paper and the ICDE Paper were different, tests results done by the Defendant for the VLDB Paper should be used or be considered in the ICDE Paper. However, the Defendant was not stated on the ICDE Paper as one of the authors.”

26.  I therefore fail to see any reasonable prospects in Intended Grounds 2, 3, 6 and 7.

OTHER ARGUMENTS MADE IN RESPECT OF THE 5TH STATEMENT (INTENDED GROUNDS 5, 9 – 11)

27.  I shall succinctly deal with the remaining arguments made in respect of the 5^th Statement.

28.  In respect of Intended Ground 5, Mr Siu argues I have found 2 meanings to the 5^th Statement and by finding only one of the meanings made out, I was not entitled to find the defence of justification made out.  However, this is another misreading of the Judgment.

29.  As set out in paragraph 109, I have found that there are “. . . 2 parts [to] the ordinary and natural meaning . . .” (own emphasis added) (see also paragraph 42 of the Judgment).  In other words, the ordinary meaning of the 5^th Statement was found to be as per paragraph 5(5) of the Statement of Claim, that is “the Plaintiff’s conduct was unreasonable and improper by not acknowledging the Defendant’s contribution in the published research paper,” (see also paragraph 41 of the Judgment).  However, the form of acknowledgement could be looked at in 2 parts: either by naming the defendant directly in the ICDE Paper or by acknowledging his contribution to the ICDE Paper by reason of his contribution in the VDLB Paper.

30.  Therefore, my finding at paragraph 109 is not that there were 2 meanings to the 5^th Statement.

31.  In so far as Mr Siu claims my finding at paragraph 130 of the Judgment is erroneous for referring to the “facts” found in paragraphs 115 – 120 of the Judgment (Intended Ground 10), it seems Mr Siu has misread the Judgment.  I have clearly set out the facts on which the comment is based at paragraph 128 of the Judgment.  Paragraph 130 of the Judgment is dealing with the fact set out in paragraph 128(3) of the Judgment and whether that fact is true or not.  The reference to “other facts” in paragraph 130 of the Judgment is a reference to the facts set out in paragraph 128 of the Judgment.  Paragraph 131 of the Judgment deals with my finding as to whether the comment made in the 5^th Statement is a fair one.

32.  In respect of Intended Ground 9 and 11, I have set out my reasoning in the Judgment for my findings.  I shall not repeat the same.

33.  For the reasons set out above, I find there to be no reasonable prospects of success in the Intended Grounds 5, 9 – 11.

34.  Furthermore, I do not find there to be some other reason in the interests of justice why the appeal should be heard.

35.  By reason of the matters set out above, I dismiss the plaintiff’s application for leave to appeal.

36.  I make a costs order nisi that the costs of the plaintiff’s application for leave to appeal be paid by the plaintiff to the defendant, with certificate for one counsel, to be taxed if not agreed.  Unless any party applies to vary the costs order nisi within 14 days hereof, the costs order shall become an order absolute.