WONG YING CHOW v. WONG HANG YIN

DCCJ 4078 of 2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL JURISDICTION

ACTION NO. 4078 OF 2005

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INDEX TO JUDGMENT

DCCJ 4078 of 2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL JURISDICTION

ACTION NO. 4078 OF 2005

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BETWEEN

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J U D G M E N T

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A.  Introduction

1. This slander action was commenced by the Plaintiff against the Defendant in respect of the Defendant’s alleged utterances made during a regular meeting of the committee members of Wong Wan Hing Tong Clansmen Association Limited (黃環慶堂宗親會有限公司) (“the Association Limited”).  It was held on 22^nd August 2004 (“the Meeting”).  There are 21 committee members or members of the Association Limited including the Plaintiff and the Defendant who attended the Meeting at the registered office at 2/F, 13 Fu Hing Street, Sheung Shui, New Territories.

2. The Plaintiff alleged that during the Meeting, the Defendant proposed to extend the period of service of a committee member from 2 years to 3 years.  The Plaintiff responded that such proposal should be considered in the annual general meeting, not in the committee meeting. The Defendant then pointed at him and said loudly: “You!  Don’t kick a fuss!  You’ve defalcated lands and property of Fuk Tin (or Fu Tian) villagers, and I still haven’t got you to cough up!” “你呀! 唔好呀吱呀咗呀! 你侵吞咗福田村人啲土地財產,我都未同你計呀!” (“The Words”).

3. It is more desirable to set out the background of the Association Limited first.  The Association Limited was incorporated in 1982.  It was established for the objects of, inter alia, fostering the fraternity and unity of the clansman of Wong’s family of Fu Tian village, the Peoples’ Republic of China (福田村) who have moved to Hong Kong or return from overseas.  Clansman from Shenzhen also paid regular visits to the Association Limited.  The objectives of the Association Limited are set out in the Memorandum and Articles of the Association.  Paragraph 4 of the Articles of Association states: “All persons, irrespective of creed, sex, or native belonging to a “Wong” family, of not less than 18 years of age, of good conduct and behaviour, who are willing to observe the rules and regulations of the Association shall be eligible for admission as members of the Association.”

4. At the relevant time in 2004, there were more than 3000 members in the Association.  Some of them resided in Hong Kong and some of them resided in Fu Tian, Shenzhen.  Its board of directors consisted of 23 directors elected by its members.  The parties also described directors as committee members (理事).  A committee member may be elected as the chairman of the committee members (理事長).  Senior committee members may be elected as the President (會長).

5. Both the Plaintiff and the Defendant were senior committee members of the Association Limited.  The Plaintiff was a Honourary or Life President (永遠會長).  The Meeting was chaired by the Defendant. 

6. The main issue for determination at trial is whether the Defendant did utter the Words towards the Plaintiff during the Meeting.

B.  PLAINTIFF’S CASE

7. It is the Plaintiff's case that the Defendant did utter the Words during the Meeting.  In their natural and ordinary meanings, the Words are defamatory and were understood to mean that:

(1) the Plaintiff has acted dishonestly defalcating the land(s) owned by the villagers of Fu Tian Village, Shenzhen;

(2) the Plaintiff was a corrupt person who engaged in defalcation activities;

(3) the Plaintiff should be disqualified as a member of the Association Limited as his dishonest act would have damaged the reputation of the Association Limited.

8. The Plaintiff avers the falsity of the Words as follows:-

(1) the Plaintiff has never acted dishonestly defalcating the land(s) owned by the villagers of Fu Tian Village Shenzhen and should not be disqualified as a member of the Association Limited;

(2) the Plaintiff has never been a corrupt person who engaged in defalcating activities.

9. The Plaintiff avers the malice on the part of the Defendant as follows:-

(1) in the Meeting, the said defamatory words might not be true nor were the same conclusive or found regularly and the whole matter in relation to the slander needed further investigation;

(2) while the Defendant had full knowledge and/or ought to have full knowledge as to the matter pleaded in sub-paragraph (1) above, the Defendant expressed the said defamatory words;

(3) the Defendant expressed the said defamatory words knowing them to be false, or recklessly, not caring whether they were true and false and/or with no honest belief that they were true.  In doing so, the Defendant was actuated by the dominant motive of damaging the Plaintiff and his acting or working as pleaded in paragraph 1 of the Statement of Claim, particularly as a member of the executive committee and the President of the Association Limited.

10. The Plaintiff says that as a consequence of the Words, he suffered from general damages, including loss of reputation and loss of rental profits.  He also seeks for aggravated damages.  Counsel for the Plaintiff quantified both heads of damages in the respective sums of HK$500,000 and HK$300,000.  In respect of the loss of rental profits, the Plaintiff alleged that the Words resulted in, at least one landlord, Madam Wong Kam Sim, the refusal to renew the lease of Fu Tian Village Ancestor House Square House no.20 (“ House No.20”) (福田村祠堂坊20號屋) after its expiration.  The Plaintiff was therefore unable to sub-lease the said property and suffered loss of monthly profits estimated at HK$30,000 as a result.  The Plaintiff further seeks for aggravated damages on the ground that the Defendant failed to tender apology, withdraw, clarify or purge the Words.

C.  DEFENCE CASE

11. The Defendant denied having uttered those words, if the Defendant was found to have uttered the Words, it was not defamatory.  Counsel for the Defendant conceded on 1^st day of the trial that those words are defamatory but their stance remained that the Defendant did not utter the Words.  Secondly, the Words were not referred to or not capable of referring to the Plaintiff.  Thirdly, the Words were said during the occasion covered by qualified privilege.  The Defendant was under the duty to raise enquiry for the rental income allegedly donated to the Association Limited.  Fourthly, the Defendant relied on the defence of fair comment on the ground that it is a matter of public interest to raise the said enquiry.  Fifthly, the Defendant pleaded “justification” and contended that the Words are substantially true in nature.  Sixthly, although “malice” may defeat the defence of qualified privilege and fair comment, the Plaintiff was unable to prove “malice”.  Seventhly, the Defendant contended that the Plaintiff has not suffered any loss or damages nor the Plaintiff mitigated his loss and damage. 

12. In so far as the defence of qualified privilege is concerned, the Defendant gave the particulars as follows:-

(1) there was a village committee known as Fu Tian Villagers’ Committee, Fu Tian District, Shenzhen (深圳市福田區福田村民委員會) (“the Shenzhen Committee”) (村委會). The said Committee was later incorporated in Shenzhen known as Shenzhen Futian Huanqing Industrial Co. Ltd (福田環慶實業股份有限公司) (“the Shenzhen Company”). 

(2) the Association Limited was founded for “the reunion of the villagers of Fu Tian village who have already moved to Hong Kong”;

(3) On 1^st June 2003, during a meeting of the Association Limited of which the Plaintiff was absent, the Defendant first knew from Mr. Huang Wei Guang (DW3), the chairman of the Shenzhen Company that since early 1980’s, the Shenzhen Committee or the Shenzhen Company allegedly resolved to donate the rental income accrued to the lands in lots 497 and 508 in DD 99 in Lok Ma Chau to the Association Limited to meet its expenses.  However, no rental income was reportedly paid to the Association Limited since then.  Moreover, on the same occasion, one Mr. Wong Kit-yin told the Defendant that the rental matter was handled by the Plaintiff.

(4) On 22^nd August 2004, the said issue was raised by the Defendant to the Plaintiff again that ended up with argument and quarrel amongst them and the attending members.

(5) The members who attended the Meeting had a common interest on the rental matter.

D.  REBUTTAL

13. In rebuttal, the Plaintiff’s position is as follows:

(1) the Defendant had never raised questions on the issue of the rental of the said lands during the Meeting;

(2) Wong Kam Pok Tso (黃金博祖) has been and still is the registered owner of the said lands since 1898 as evidenced in the Block Crown Lease.  Despite the bare assertion that DW2 has completed the procedure in respect of the ownership of the said lands in early 1980’s, no single document is produced to support the assertion;

(3) the Words were not within the purpose or agenda of the Meeting.  The Meeting was in the nature of a private company’s meeting in Hong Kong.  The Association did not hold any land except the registered office.  Hence, the Defendant could not rely on the defence of qualified privilege;

(4) the Words had nothing to do with public interest in Hong Kong;

(5) the Words were referred to the Plaintiff.

E.  ISSUES

14. In light of the above, the fundamental and central issue for determination at trial are:  whether the Defendant did utter the Words during the Meeting. (“the Main Issue”)

15. The subsidiary issues arising out of the Main Issue are:-

(1)  If the Defendant was found to have uttered the Words, whether the words referred to or capable of referring to the Plaintiff?

(2)  On the question of qualified privilege, whether the Defendant did raise the issue of rental income during the Meeting? Whether what was done was warranted (i.e. necessary) by the occasion and questions of reasonableness of conduct?  Whether the Defendant made the statement in the discharge of some public or private duty whether legal or moral or in the conduct of his own affairs, in matters where his interest is concerned?

(3)  On the question of fair comment, whether the Words were for the public interest?  Whether section 27 of the Defamation Ordinance, Cap. 21 avails the Defendant himself?

(4)  Whether the Defendant uttered the Words with malice, thus defeats the defence of qualified privilege and fair comment? Whether the Defendant honestly believed that the Words are true, albeit the truth of the Words are not proved?

(5)  On the question of justification, whether the Words are substantially true in nature? Whether section 26 of the Defamation Ordinance, Cap. 21 avails the Defendant himself?

(6)  If the Defendant fails to establish any of the defence, whether the Plaintiff suffered any loss and damages as a result of the Words? Whether the Plaintiff is entitled to aggravated damages?

F. THE EVIDENCE

F1. The Plaintiff's case and evidence in support

16. The Plaintiff gave evidence (“PW1”) and called 2 witnesses to give evidence in support of the Plaintiff’s case.  They are Mr. Wong Chau Hing 黃就興 (“PW2”) and Mr. Lam Yun Shing 林潤盛 (“PW3”).  PW2 was called to testify on what happened during the Meeting.  PW3 was called to testify on the reasons why his mother refused to renew the lease of House No. 20 to the Plaintiff.  This is relevant to the Plaintiff’s claim for damages. 

17. The Plaintiff’s relevant evidence can be summarised as follows:

(1) He is an indigenous villager of Fu Tian Village and he moved to reside in Hong Kong in 1962.  He was a businessman engaging in the business of furniture production and real property investment, including subletting real property for profits.  He also held about 26 titles in different social or educational institutions in Hong Kong and China.  Some of the positions are volunteer worker in nature.  One of these positions was the President of Wong Wan Hing Tong Clansmen Association Limited (黃環慶堂宗親會有限公司).

(2) The Association Limited was established in early 1982.  It was established for the objects of, inter alia, fostering the fraternity and unity of the clansman of Wong’s family in Fu Tian village who have moved to Hong Kong or return from overseas.  The place for meeting in Sheung Shui was the only property of the Association Limited.

(3) There were regular committee meetings (理監事會) of the Association Limited.  A committee member was elected by members and the period of service was 2 years.  Senior committee member might be nominated and elected as the President.  The Plaintiff was one of the two surviving Presidents.  He also later became the Honourary or Life  President (永遠會長).

(4) Wong Wan Hing (黃環慶) was the ancestor of the villagers of Fu Tian Village who could be traced back as early as in Sung Dynasty (宋朝).  He escaped from war and settled around the nowadays Shenzhen area.

(5) Wong Wan Hing was later developed into 4 branches of the family tree and each branch became a Tso.  Wong Kam Pok Tso (黄金博祖) was one of them.  Wong Kam Pok Tso held various plots of land in Lok Ma Chau, Hong Kong including Lots 497 and 508 in DD 99 as early as in 1898 as evidenced in the Block Crown Lease.

(6) The Plaintiff assisted managing the affairs of Wong Kam Pok Tso and became the registered manager of the said Tso in about 1987.

(7) On 22^nd August 2004 at about 4:05 pm, it was a regular meeting of the committee of the Association Limited.  The Defendant was the committee who chaired the meeting with 21 attendants including the Plaintiff and the Defendant.  In that meeting, the Defendant proposed to change the period of service of a committee member (理事長) from 2 years to 3 years.  The Plaintiff objected on the ground that the proposal requires the change of the Association’s constitution and hence approval in members’ annual general meeting was required.  The Defendant insisted to discuss the said issue in that meeting.  He lost temper, stood up and used his right index figure pointing to the Plaintiff and said loudly: “You!  Don’t kick a fuss!  You’ve defalcated lands and property of Fuk Tin (or Fu Tian) villagers, and I still haven’t got you to cough up!” “你呀! 唔好呀吱呀咗呀! 你侵吞咗福田村人啲土地財產,我都未同你計呀!”.  The Plaintiff responded that the Defendant should produce evidence to prove that.  Both of them quarreled against each other.  The meeting was ended because the situation became chaotic and hostile. 

(8) As a result, the Plaintiff sent a pre-action letter dated 22^nd September 2004 to the Defendant. 

(9) The Plaintiff said, because of those Words, in early 2005, the Shenzhen Company refused to renew the leases in respect of Fuk Hing House (福興樓) and Fuk Hop House (福合樓) in Shenzhen that he previously sub-let those property for profits.  Two other landlords also refused to renew the leases of Fu Tian Village Ancestor House Square No.5 and no.20 (福田村祠堂坊5號屋 及20號屋).  As a result, he suffered loss of rental profits.  He obtained the son of the landlord of House no.20 to give evidence. 

18. PW2’s evidence can be summarised as follows:

(1) PW2 as a member, attended the Meeting chaired by the Defendant.  During the Meeting, the Defendant raised that the period of service of a committee member shall be changed from 2 years to 3 years.  The Plaintiff, as the President, pointed out that was in breach of the constitution of the Association.  The proposal should be considered and passed at the annual general meeting.  Another president, Mr. Wong Kit Yin (黄杰賢) also agreed with the Plaintiff.

(2) At that juncture, the Defendant raised objection and said that Wong embezzled public fund of $700 odd dollars.  He also pointed to the Plaintiff and said loudly: “You! Don’t kick a fuss.  You’ve defalcated lands and property of Fuk Tin (or Fu Tian) villagers, and I still haven’t got you to cough up!” “你呀! 唔好呀吱呀咗呀! 你侵吞咗福田村人啲土地財產,我都未同你計呀!”.  The Plaintiff then asked the Defendant to justify what he said.

19. PW3’s evidence can be summarised as follows:

(1) PW3 is a Hong Kong resident.  He is the son of Madam Wong Kam Sim.  Madam Wong is now 88 years old.  PW3 assisted Madam Wong to manage her property, including of Fu Tian Village Ancestor House Square House no.20 (福田村祠堂坊20號屋). 

(2) PW3 said that in about 2003, his mother leased the said house to the Plaintiff for a term of 5 years.  In about October 2006, the Plaintiff proposed in writing to renew the lease after it expiration with an increase of rent by 20%.  While they were considering whether the lease should be renewed, his mother told him that she learned from the villagers that the Plaintiff defalcated lands of Fu Tian villagers.  His mother doubted the Plaintiff’s integrity and creditworthiness.  To avoid the risk of the Plaintiff’s inability to pay rent, she decided not to renew the lease after its expiration despite the suggested increase of rent by 20%.  PW3 respected her decision.

F2. Defence case and evidence in support

20. The Defendant’s evidence can be summarised as follows:

(1) He joined the Association Limited in 1990.  In 2002, he was elected as the chairman of the committee (理事長).  The Association was founded for the reunion of the villagers of Fu Tian Village who moved and resided in Hong Kong.

(2) He heard that in early 1980’s, Mr. Wong Fuk Ngau 黃伏牛 (“DW2”), the chief of Fu Tian Village came to Hong Kong to search at the Lands Office in Yuen Long to see if there was any land belonging to the indigenous villagers of Fu Tian Village.  DW2 then proceeded with necessary procedures to confirm the ownership of the lands belonged to the indigenous villagers of Fu Tian Village.  Fu Tian Village developed quickly recently. 

(3) Thereafter, the Shenzhen Committee resolved to permit the Association Limited to make use of the rental income accrued to the lands in Hong Kong owned by Fu Tian Village, to meet the expenses of the Association Limited.

(4) Subsequently, a company was established in Shenzhen to look after the interest of the villagers in Fu Tian, especially the lands owned by the village.  It is known as Shenzhen Futian Huanqing Industrial Co. Ltd (福田環慶實業股份有限公司). 

(5) In a regular committee meeting of the Association Limited held on 1^st June 2003, one Mr. Huang Wei Guang 黃偉光 (“DW3”), the President or Chairman of the Shenzhen Company also attended the meeting.  The Plaintiff was not present in the meeting while the Defendant chaired the meeting.  The Association’s office required renovation and was in need of financial support, the Defendant asked for DW3’s financial support.  DW3 was the office bearer of the Shenzhen  Committee and the Shenzhen Company.  DW3 said that the lands in Lok Ma Chau (they were described as Lots 497 and 598 in DD 99) generated rental income and the income could be made use of to meet the Association’s expenses.  Another member Mr. Wong Kit Yin said the rental matter was handled by the Plaintiff.  The gist of the discussion was recorded in the record of minutes by Mr. Wong Chi Kwong.  That was the occasion that he first knew of the rental income donated by the Shenzhen Committee or the Shenzhen Company to the Association Limited.

(6) On 22^nd August 2004 during the Meeting, in view of the rental matter concern the interest of the Association Limited and that the Plaintiff was present, the Defendant made inquiries to the Plaintiff and asked him to account for the rental income.  The Plaintiff said that it was none of his business.  The Defendant replied that the superior said the rental income was to meet the Association’s expenses (上頭話個啲田租係俾個會做經費).  He stressed that he did not utter the Words as alleged.

(7) The Plaintiff and his son became very angry.  The Plaintiff’s son also jumped on the table and thundering around as to who took away his grandmother’s photograph from the ancestor’s house.

(8) After the meeting, he went to Shenzhen and told DW3 about what happened in the Meeting.

(9) In about the end of 2004, while he was in Fu Tian Village, Shenzhen he heard that the villagers talking about the Plaintiff’s defalcation of lands of the villagers.  But he did not participate in the chat.

(10) He did not receive the letter before action dated 22^nd September 2004.  He only received the Writ in August 2005.  After that, he complained the matter to the Shenzhen Committee and the documents dated 16^th September 2005 and 19^th October 2009 were issued.  The gist of the 1^st document states that the Shenzhen Committee, after the completion of the procedure of searching of lands in Hong Kong owned by the villagers, they paid government rent and arranged leasing and cultivation.  They also gave financial support to the Association Limited by permitting rent generated from the lands to meet the expenses of the Association Limited.  The gist of the 2^nd document reiterates what was said in the 1^st document.  It also adds that the Plaintiff made use of Wong Kam Pok Tso to misappropriate lands of the villagers.

21. The Defendant also called the following persons to testify: Mr. Wong Fuk Ngau 黃伏牛 (“DW2”), Mr. Huang Wei Guang 黃偉光 (“DW3”), Mr. Wong Kam Choi 黃錦財 (“DW4”), Mr. Wong Shu Fuk 黃樹福 (“DW5”) and Mr. Wong Kam Mun 黃金滿 (“DW6”).  DW2 claimed to represent the villagers of Fu Tian Village, Shenzhen and said that he came to Hong Kong in 1980’s to complete the procedure of getting back the lands in question and arranged sub-letting of the lands thereafter.  DW3 was present at a prior meeting on 1^st June 2003.  DW4, DW5 and DW6 were present at the Meeting.

22. DW2 gave evidence in support of the defence case and his relevant evidence can be summarised as follows:

(1) He is an indigenous villager of Fu Tian village.  He is a resident in Shenzhen.  Since 1984, he was the consultant of the Shenzhen Committee.  The village donated $300,000 to the Association for its establishment. 

(2) In early 1980’s, he represented the village and went to Hong Kong to handle the matter concerning the ownership of the land lot no. 497 in DD 99 in Hong Kong owned by the village.  He then organized leasing and cultivation on the land and the income generated all went to the village.  In about 1984, the village committee resolved that the said land shall be managed by the Association Limited and the income shall be received by the Association to meet its expenses. 

23. DW3 gave evidence in support of the defence case and his relevant evidence can be summarised as follows:

(1) He is an indigenous villager of Fu Tian, Shenzhen.  He was and is the chairman of the Shenzhen Company formerly known as the Shenzhen Committee.

(2) He said that by virtue of his position in the Shenzhen Company, he knew that in early 1980’s, “Mr. Wong Fuk Ngau 黃伏牛 (“DW2”), the chief of Fu Tian Village (Shenzhen Committee)… then traveled to Hong Kong and made land search at the Lands Office, Yuen Long of the Lands Department.  Mr. Wong then proceeded necessary procedures to confirm the ownership of the lands belonged to the indigenous villages of Fu Tian Village”.  Fu Tian Village developed quickly recently.  Subsequently, a company was established to look after the interest of the villagers in Fu Tian, especially the lands owned by the village, the Shenzhen Company.

(3) Thereafter, the Shenzhen Committee resolved to permit the Association to make use of the rentals accrued from lands in Hong Kong belonged to the indigenous villagers of Fu Tian Village, to meet the expenses of the Association Limited.

(4) In a regular committee meeting of the Association Limited held on 1^st June 2003, he also attended the meeting.  The Plaintiff was not present in the meeting while the Defendant chaired the meeting.  The Defendant said that the Association required renovation and was in need of financial support, the Defendant asked for his financial support.  He was the office bearer of the Shenzhen Committee and the Shenzhen Company.  DW3 said that the lands in Lok Ma Chau (they were described as Lots 497 and 598 in DD 99) generated rental income and the income could be made use of to meet the Association’s expenses.  But the Defendant said that prior to that meeting, he was not aware that the Shenzhen Committee or the Shenzhen Company donated rental income to the Association Limited.

24. DW4 gave evidence in support of the defence case and his relevant evidence can be summarised as follows:

(1) He was one of the directors of the Association Limited.  The Association has more than 3000 members.  He attended the Meeting.  Someone proposed to extend the service of a committee from 2 years to 3 years.  The attendants had different views and there was no further discussion on that topic.  The Defendant asked the Plaintiff about the income accrued to the lands in Lok Ma Chau.  That was for use to meet the Association’s expenses.  But the Plaintiff did not explain for that.  The Defendant did not say that Mr. Wong Kit Yin embezzled 700 odd dollars nor did he utter the Words.  He admitted that the issue of rental was not recorded as being discussed in the minutes of the Meeting.

(2) But he heard that the Plaintiff’s son thundering around about his grandmother’s photograph.  The situation was chaotic and ended because of this.  The Defendant was not angry during the meeting.

(3) Several months after the Meeting the Defendant told him that he received a solicitors’ letter from the Plaintiff and asked him to be a witness.

25. DW5 gave evidence in support of the defence case and his relevant evidence can be summarised as follows:

(1) He was a member of the Association Limited and he was elected as one of the directors in 1992. 

(2) In June 2003, he attended the regular meeting and the attendants discussed about the raising of funds for the Association.

(3) He also attended the Meeting on 22^nd August 2004.  The Defendant asked the Plaintiff about the income from land in Lok Ma Chau belonging to the Fu Tian villagers that was supposed to be used for paying the Association’s expenses.  People of the two rivalry camps quarreled against each other.  They almost had a fight but were separated by others.

(4) He saw the Plaintiff’s son standing on a table and yelled at the Defendant about his grandmother’s photograph.  The Defendant did not utter the Words.  He left when the situation became chaotic.

(5) He agreed that the matters in dispute during the Meeting were personal matters and shall not be brought out in the Meeting.

26. DW6 gave evidence in support of the defence case and his relevant evidence can be summarised as follows:

(1) He was a director of the Association.  He attended the Meeting.  Someone proposed to extend the service of a committee from 2 years to 3 years.  The attendants had different views and there was no further discussion on that topic.  The Defendant asked the Plaintiff about the income from lands in Lok Ma Chau.  That was for the Association’s expenses.  But the Plaintiff did not explain for that.  The Defendant did not say that Mr. Wong Kit Yin embezzled 700 odd dollars nor did he utter the Words. 

(2) But he heard the Plaintiff’s son thundering around about his grandmother’s photograph.  The situation was chaotic and ended because of this.  The Defendant was not angry during the meeting.

G.  DISCUSSION

G1.  The Law

DEFENCE OF QUALIFIED PRIVILEGE

27. The statements of law in respect of qualified privilege can be summarised as follows.  In Gatley on Libel and Slander, 11^th edition, paragraphs 14.3 at page 442, it is stated that:

 “… the ultimate question is whether what was done was warranted (i.e. necessary) by the occasion and questions of reasonableness of conduct, and not simply honesty, may enter into this, particularly where the statement is volunteered. ” 

28. Legal statement in Gatley paragraph 14.6 at page 446 reads:

“The occasions [of qualified] privilege can never be catalogued and rendered exact” but the tendency of the courts has been to regard most privileged occasions under the common law as very broadly classifiable into two categories: first, where the maker of the statement has a duty (whether legal, social or moral) to make the statement and the recipient has a corresponding interest to receive it; or, secondly, where the maker of the statement is acting in pursuance of an interest of his and the recipient has a such a corresponding interest or duty in relation to the statement, or where he is acting in a matter in which he has a common interest with the recipient.”

29. Legal statement in Gatley paragraph 14.3 at pages 443-444 reads:

“…the whole basis of the privilege is that it is only defeated by malice, not by reasonable care.  As Lord Diplock said in Horrocks v Lowe [1975] AC 135:

“In greater or in less degree according to their temperaments, their training, their intelligence, [people] are swayed by prejudice, reply on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognize the category of material which might cast doubt on the validity of the conclusions they reach.  But despite the imperfection of the mental process by which the belief is arrived at it may still be “honest”, that is, a positive belief that the conclusions they have reached are true.  The law demands no more.

But the approach in Downtex Plc v Flatley [2003] EWCA Civ 1282, by introducing an objective element into the defendant’s perception of the facts upon which he acts, may mean that the defence is destroyed at the outset before the stage of malice is reached, by the decision that the communication was not fairly warranted by the occasion.”

DEFENCE OF FAIR COMMENT

30. Section 27 of the Defamation Ordinance provides that:-

“In an action for libel or slander in respect of words consisting partly of allegations of facts 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.”

31. In Cheng & Another v Tse Wai Chun [2000] 3 HKLRD 418 Final Appeal No. 12 of 2000, the Court of Final Appeal identified the ingredients of the defence of fair comments as follows:-

“The comment must: (a) be on a matter of public interest; (b) be recognisable as comment, as distinct from an imputation of fact; (c) be based on facts which were true or protected by privilege; (d) explicitly or implicitly indicate, at least in general terms, what the facts were on which the comment was being made; and (e) be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views.”

MALICE

32. It is trite law that the defence of qualified privilege and fair comment can be defeated by proof of “malice”.  The approach in England can be found in Gatley paragraph 17.3 at page 597-598:

“The speech of Lord Diplock in Horrocks v Lowe, with three other of the Law Lords agreed, reinstated the law in the context of qualified privilege in what were clearly intended to be authoritative terms.  The following is offered as a summary:

(1) Improper motives

(a) There is some special reason of public policy for giving immunity in all cases of qualified privilege.  If the maker of a statement uses the occasion for some other reason he loses the protection of the privilege.

(b) The defendant is entitled to be protected unless some dominant improper motive on his part is proved.

(c)  (i) the usual motive relied on is that of injuring the claimant, but there may be others.

(ii) Knowledge that a statement will injure the claimant does not destroy the privilege if the defendant was using the occasion for its proper purpose.

(2) Absence of honest itself

(a) if it can be proved that the defendant did not believe that what he published was true, that is generally conclusive evidence of express malice, “for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another”.  The burden of proof, at least where conduct extraneous to the privileged occasion is not relied on, is not a light one.

(b) if the defendant publishes untrue matter recklessly, without considering or caring whether it be true or not, he is treated as if he knew it to be false, but carelessness, impulsiveness or irrationality in arriving at a belief is not to be equated with indifference to truth.

(c)  There are exceptional cases where a person may be under a duty to pass on defamatory reports made by another even if he believes them to be untrue:  he is not then malicious.

(3) Positive belief

(a) Positive belief in the truth of what is published will usually protect the defendant unless he can be proved to have misused the occasion.  Judges and juries should be slow to draw the inference that he has misused the occasion, and the defendant’s desire to use the occasion for its proper purpose must be shown to have played no significant part in his motives if malice is to be found.

(b) Where the defendant believes in the truth of what he has published and conduct extraneous to the privileged occasion is not relied on, the claimant can only succeed if he shows that the publication contains irrelevant matter, and that it can be inferred that the defendant did not believe it to be true or realised that it was irrelevant, and brought it in for some improper motive.  Judges and juries should be slow to draw this inference, too.

33. The approach in Hong Kong on “malice” was expounded in Cheng’s judgment supra.  The Court of Final Appeal expounded that “malice” did not bear the same meaning for the defences of fair comment and qualified privilege.  The trial judge misdirected the juries on “malice” and a new trial was ordered:

“A plaintiff could defeat the defence of fair comment by proving that the comments were actuated by “malice”

“Hence, “malice” covered the case of the defendant who did not genuinely hold the view that he expressed.  It was subjective and looked to the defendant’s statement of mind.  Honesty of belief was the touchstone.  Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it might be, even if it was the dominant or sole motive, did not of itself defeat the defence.  However, proof of such motivation might be evidence, sometimes compelling evidence, from which lack of genuine belief in the view expressed might be inferred.” 

“This meant that “malice” did not bear the same meaning for the defences of fair comment and qualified privilege.. . The rational of qualified privilege was that there were circumstances when there was a need, in the public interest, for a particular recipient to receive frank and uninhibited communication of a particular information from a particular source.  If a person’s dominant motive was not to perform this duty or protect this interest, he was outside the ambit of that defence.  The rationale of fair comment, on the other hand, was not based on any notion of performance of a duty or protection of an interest.”

“Juries could be instructed with regard to: (a) fair comment, that the defence was defeated by proof that the defendant did not genuinely believe the opinion he expressed; and (b) qualified privilege, that the defence was defeated by proof that the defendant used the occasion for some purpose other than that for which the occasion was privileged.” 

DEFENCE OF JUSTIFICATION

34. Section 26 of the Defamation Ordinance provides that:-

“In an action for libel or slander in respect of words containing 2 or more distinct charges against the plaintiff, a defence of justification 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.”

35. Legal statement in Gatley, in paragraph 11.1 at page 309 and 311 reads:

“It is a defence for the defendant to establish that the imputation in respect of which he is sued is substantially true, and the defence is called a plea of justification.”

“… it is clear in England and in other jurisdictions which follow the common law on this point that a defamatory imputation is presumed to be false and that the burden is upon the defendant to show that it is substantially true.”

36. Legal statement in Gatley, in paragraph 11.6 at page 316 to 317 reads:

“Proof of justification: cases where the imputation is of suspicion.  The approach to proof of justification in “reasonable grounds to suspect” cases was summarized by Eady J., adopting the submissions of counsel, in a passage approved by the Court of Appeal in Musa King v. Telegraph Group Ltd as follows:

(2) [W]here the nature of the plea is one of  ‘reasonable grounds to suspect’, it is necessary to plead (and ultimately prove) the primary facts and matters giving rise to reasonable grounds of suspicion objectively judged:

(3) It is impermissible to plead as primary fact the proposition that some person or persons (eg law enforcement authorities) announced, suspected or believed the claimant to be guilty;

(4) A defendant may (for example, in reliance upon the Civil Evidence Act 1995) adduce hearsay evidence to establish a primary fact –but this in no way undermines the rule that the statements (still less beliefs) of any individual cannot themselves serve as primary facts;

(5) Generally, it is necessary to plead allegations of fact tending to show that it was some conduct on the claimant’s part that gave rise to the grounds of suspicion (the so-called  ‘conduct rule’)

(6) It was held by [the CA] in [Chase v Newsgroup Newspapers Ltd], that this is not an absolute rule, and that for example ‘strong circumstantial evidence’ can itself contribute to reasonable grounds for suspicion.

(7) It is not permitted to rely upon post-publication events in order to establish the existence of reasonable grounds, since (by way of analogy with fair comment) the issue has to be judged as at the time of publication.

(8) A defendant may not confine the issue of reasonable grounds to particular facts of his own choosing, since the issue has to be determined against the overall factual position as it stood at the material time (including any true explanation the claimant may have given for the apparently suspicious circumstances pleaded by the defendant).

(9) Unlike the rule applying in fair comment cases, the defendant may rely upon facts subsisting at the time of publication even if he was unaware of them at that time.

(10) A defendant may not plead particulars in such a way as to have the effect of transferring the burden to the claimant of having to disprove them.”

G2. Evidence Analysis

37. In respect of the central issue as to whether the Defendant uttered the Words.  It is apparent that those witnesses who attended the Meeting had different versions.  The Plaintiff and PW2 had one version while the Defendant, DW4 to DW6 had another version.

38. I prefer and accept the Plaintiff’s material evidence on the central issue and subsidiary issues in so far as it conflicts with the defence case or the evidence of defence witnesses.  The Plaintiff gave evidence in a straightforward and frank manner, and was hardly challenged or shaken under cross-examination. In contrast, the Defendant gave evidence in an extremely evasive manner.  He either said that he did not know how to answer or gave long and convoluted answers to simple questions.  Moreover, there is no gainsaying that on some essential matters, his evidence changed and is out of common sense and logic.  I also accept the evidence of PW2 and PW3 and reject the evidence of other defence witnesses unless there is no conflict between the parties.  They are credible and reliable.  Their answers are spontaneous and unbiased.  I shall highlight the salient points as follows.

39. In respect of the background leading to the Words, the Plaintiff’s version was that when he and another President objected to the Defendant’s suggestion to change the period of service of a committee member from 2 years to 3 years, the Defendant became angry and uttered the Words. The Defendant’s version was that when the Defendant queried the Plaintiff on the whereabouts of the rental income, the Plaintiff did not respond to the query but the Plaintiff’s son yelled on the issue of his grandmother’s photograph. He did not utter the Words.  In relation to what was discussed in the Meeting, the copy of the minute was produced.  None of the parties called the person who recorded the minutes.  None of them challenged the contents except what the Defendant said they had another copy with additional words such as the time when the meeting ended.  The alleged additional words are not material.  But the undisputed part showed that the issue of rental income was not the agenda nor was it recorded as being discussed in the Meeting.  This is contrary to the Defendant’s version and his witnesses’ versions. 

40. Upon being put to the gist of the following versions, the Defendant gave evidence in the following manner:

(1) Counsel for the Plaintiff asked him along the line that one had to serve as a committee member for a period before he could be elected to be a President.  The President such as the Plaintiff had to be a respectable person among the Association.  In other words, it was not easy to become a President.  He said that he did not understand the question. 

(2) When he was referred to the minute of the meeting held on 1^st June 2003, it was put to him that DW3, the chairman of the Shenzhen Company did not say that the Plaintiff defalcated lands of Fu Tian villagers, what DW3 said that the rental income could be used to meet the Association’s expenses.  The Defendant said that he did not recall so much.

(3) The Defendant allegedly first knew of the issue of rental income in the meeting on 1^st June 2003 and he just exercised his duty to ask the Defendant on the issue of rental income on 22^nd June 2004.  It is admitted that in between the said two meetings, there were 9 other meetings that the Defendant was present, as to why he did not raise the same issue during the 9 meetings, he offered no explanation.

(4) When the minute of the meeting on 1^st June 2003 transpires that a date shall be fixed and the issue of rental income should be brought back to the native village for discussion, he was asked on what is his understanding of “brought back to the native village for discussion” (擇日回鄉再討論), the Defendant at first said that he disagreed to it.  Same question was repeated and he asked what is meant by “back to the native village”.  Same question was repeated again then he answered it was meant by “back to Fu Tian Village to discuss.”

(5) When he was referred to his pleading on the defence of justification, especially had he uttered the Words, what are grounds in holding that belief, he repeated for more than 5 times that he could not answer as to the grounds in support of the Words.

(6) After the meeting, when he was in Fu Tian, Shenzhen, he heard villagers talking about the Plaintiff’s defalcating of the villagers’ land, he was asked as to whether he attempted to clarify for the Plaintiff, he repeatedly said that he could not answer.

(7) When he was asked as to whether he had the right or was justified to utter the Words, at first he refused to answer and later he said that he could not answer.

(8) When he was asked to confirm the contents in his answers to the further and better particulars were correct, he said that he could not answer.

(9) Except the place for meeting, the Association did not own any land, the Defendant disagreed.  When the question was repeated, he said that he could not answer.

41. I note that the Plaintiff was cross-examined on the alleged breach of the tenancy agreement between the Shenzhen Company and him by either sub-leasing the property to another or permitted the premises be used as a restaurant. He has given evidence that approval was granted to those who operated the restaurant or the landlord knew about that. This was supported by DW3’s evidence that despite they knew about the alleged breach, they just elected not to terminate the lease until the expiry of the leases.  I do not find this alleged breach of the leases is sufficient to outweigh my above conclusion on the question of credibility.

42. In respect of DW2’s evidence, the Defendant’s pleadings and DW2’s own evidence suggested that in 1984, he completed all the necessary documents in respect of the ownership of the land lot no. 497 in DD 99.  Then he arranged the cultivation and leasing of the land for generating income.  This is contrary to the undisputed document that as early as in 1898, Wong Kam Pok Tso was the owner of the land with whom the Plaintiff was the registered manager since 1987.  There was no change of the ownership ever since the Block Crown Lease.  DW2 produced not even a single document about the ownership of the land when he said that he came to Hong Kong to handle the ownership of the land in early 1980’s.  He spoke louder than the document.  He is incredible. 

43. In respect of DW3’s evidence, he was referred to the documents  dated 16^th September 2005 and 19^th October 2009 issued by the Shenzhen Committee that the Defendant relied very much on.  It is unknown which person of the Committee issued those documents.  The second document contains the allegations that the Defendant now contended for, including the allegation that with the support of the Hong Kong Government, Fu Tian Village, through DW2, got back the land in lot 497 in DD 99 in 1980’s.  The Plaintiff treated the land as if he owned it.  His stance in Court totally departed from the contents of this letter as revealed during cross-examination, bearing in mind he was the officer bearer of the Shenzhen Committee and the Shenzhen Company.  Simply put, he agreed that he did not accuse the Plaintiff for defalcating the lands of his villagers.  He agreed that there was no evidence to accuse the Plaintiff for defalcating the lands of his villagers.  He said that the document was issued by the office but he did not know which person issued it.  In Court, he tried to be distant himself off from that document.  I reject his evidence unless there is no conflict with the Plaintiff’s version.  I particularly reject his allegation that the lands in questions were owned by the Shenzhen Committee or the Shenzhen Company.  He relied on the hearsay evidence of DW2.  DW2 produced no document to support his bare assertion of the ownership despite he said that he came to Hong Kong in 1980’s to complete the procedure of the ownership with the support of the Hong Kong Government.  However, I placed weight on his current stance in Court, that he did not accuse the Plaintiff for defalcating the lands of his villagers.  He agreed that there was no evidence to accuse the Plaintiff for defalcating the lands of his villagers.

44. In respect of DW4’s evidence, he said that the Defendant raised the issue of rental income to the Plaintiff during the Meeting, the issue of rental income was not recorded in the minutes as the agenda or the topic being discussed, he agreed to that but offered no explanation.  I also note that his statement was dated 27^th October 2009.  That means he had to recall an episode happened 5 years ago.  There was no record of his own to refresh his memory.  His evidence is unreliable.  Further, he said that several months after the Meeting, the Defendant told him that he received a letter from the Plaintiff’s solicitors about the alleged defamation.  This is in direct conflict with the Defendant’s version that he never received the letter before action.  Counsel for the Defendant submitted that the witness might mix up the Writ with the letter before action.  I do not agree.  What the witness said was several months after the Meeting the Defendant told him about the receipt of solicitor’s letter, and at the time, the Writ was not in existence.  The Writ was issued on 10^th August 2005, about 12 months after Meeting.  After all, despite attempts, Counsel for the Defendant failed to establish that the witness mistakenly treated 12 months as “several months”.  This part of DW4’s evidence fortified my findings on the credibility of the Defendant’s version.

45. In respect of DW5’s evidence, his evidence is unreliable.  He did not witness the whole incident and he left while the Plaintiff and the Defendant were still exchanging angry words.  He gave imprecise answers as to whether the issue of rental income was raised. 

46. In respect of DW6’s evidence, I also note that his statement was dated 27^th October 2009.  Likewise, that means he had to recall an episode happened 5 years ago.  There was no record of his own to refresh his memory.  Further, he said that he once signed a witness statement prepared by the Defendant’s previous solicitors.  But in fact, there was only one prepared by the Defendant’s current solicitors.  Moreover, contrary to the version of other defence witnesses, he said that the Plaintiff and the Defendant did not quarrel.  His evidence is unreliable.

H1.  FINDINGS

47. Given my conclusions on the witnesses’ relevant evidence, I make the following findings on the main issues:

The Defendant did utter the Words during the Meeting.

48.In so far as necessary, I also make the following findings on the subsidiary issues:-

(1) As conceded by the Counsel for the Defendant, the Words were defamatory.  I also found that the Words were understood to mean that the Plaintiff has acted dishonestly defalcating the land(s) owned by the villagers of Fu Tian Village, Shenzhen and the Plaintiff was a corrupt person who engaged in defalcation activities;

(2) The falsity of the Words are that the Plaintiff has not acted dishonestly defalcating the land(s) owned by the villagers of Fu Tian Village Shenzhen nor was he a corrupt person who engaged in defalcating activities.

(3) I also accepted the Plaintiff’s evidence in relation to the conduct of the Defendant when he uttered the Words, especially he used his right index finger pointing to the Plaintiff and uttered the Words loudly.  Those words were referred to the Plaintiff.

(4) It is more convenient for me to make findings on “malice” first before I deal with the defence of qualified privilege and fair comment.  Because “malice” defeats the defence of qualified privilege and fair comment.  But I also remind myself that malice may carry different meanings in the said two defences.  Since I found that the Defendant did not raise the issue of rental income during the Meeting that would have otherwise caused me to consider whether he was under the duty to raise it.  For completeness sake, take the defence case to the highest, the Defendant did raise the issue of rental income during the Meeting and that he was under the duty to raise the issue, I need to consider two questions as suggested by Lord Nicholls in Cheng’s judgment:

“Juries could be instructed with regard to: (a) fair comment, that the defence was defeated by proof that the defendant did not genuinely believe the opinion he expressed; and (b) qualified privilege, that the defence was defeated by proof that the defendant used the occasion for some purpose other than that for which the occasion was privileged.” 

(5) The evidence overwhelmingly established that the Defendant was guilty of malice in both senses.  In respect of malice in the context of fair comment, to begin with, the Defendant did not honestly or genuinely believe the wholly untrue statements of the Words.  The logical progression is this.  The Defendant relied on DW2’s evidence.  But DW2 said so much about the completion of the procedure of the ownership of the land as early as in 1980’s and he did not produce a single document to support the bare assertion at all material times.  The Defendant could not have relied on a bare assertion in respect of the question of land ownership. The Defendant also relied on DW3’s evidence.  However, DW3 even tried to be distant himself off a libelous document dated 19^th October 2009 issued by the Shenzhen Committee.  In short, as at the date of the Meeting on 22^nd August 2004 or even thereafter, except bare assertion, there was no single piece of evidence to substantiate the ownership of the lands by the Shenzhen Committee or by the Shenzhen Company, let alone the allegations on the issue of rent or the Plaintiff’s defalcation of lands.

(6) Further, on the question of fair comment, I do not see how the bare assertion on the ownership of the lands by the Shenzhen Committee or the Shenzhen Company, a matter of private interest would become a public interest, so as to afford him the defence of fair comment. Even if it concerns the public interest, the finding on malice defeats the defence of fair comment.

(7) In respect of malice in the context of qualified privilege, the Defendant uttered the Words with the sole or dominant, improper motive of injuring the Plaintiff and aired his grudges and personal animosity towards the Plaintiff, after the Defendant perceived the Plaintiff being obstructive to extend the period of service of a committee from 2 year to 3 years, whether the Defendant has any interest in such a proposed extension or not.He used the occasion for some purpose other than that for which the occasion was privileged (see Cheng’s case cited above and Lee Ching v Lau May Ming [2007] 3 HLRD 623).

(8) Moreover, on the question of justification, the Defendant advanced the defence of justification knowing that it was unsustainable.  He was puzzled by his plea of justification when Counsel for the Plaintiff explained his pleadings to him during cross-examination.  This transpires that he knew that he could not show the Words were substantially true in nature.  He just put in whatever defence that may be pleaded without caring whether it can be substantiated.  I found that as at the date of the Meeting, the Defendant knew or ought to have known that the defence of justification was unsustainable.  I say “as at the date of the Meeting” because of the legal commentary cited above:

“It is not permitted to rely upon post-publication events in order to establish the existence of reasonable grounds, since (by way of analogy with fair comment) the issue has to be judged as at the time of publication.”

(9) As a result, I do not see how his subsequent efforts to procure the Shenzhen Committee to issue the libelous letter dated 19^th October 2009 is conducive to the defence of justification.  Worse still, DW3 tried to distant himself off the said document.  Thus, I also found that at the Meeting or any time thereafter and at trial, the Words are unsustainable and uttered with malice.

(10) As a result, in particular my findings on “malice”, the statutory defence in relation to fair comment and justification under sections 26 and 27 of the Defamation Ordinance did not avail the Defendant himself.

(11) In relation to damages, I shall set out my analysis hereunder.

H2.  DEFENDANT’S SUBMISSIONS

49. I shall deal with submissions made by Counsel for the Defendant.  To begin with, she submitted that for an action for slander, if a plaintiff fails prove special damage, it is not actionable unless the words imputing a criminal offence or words calculated to disparage in any office, profession, calling, trade or business; words impute adultery or unchastity to a woman (see Gatley paragraph 5.1).  She submitted that the Words do not impute a criminal offence. She addressed me on what is the meaning of “defalcating lands” and submitted that at most it amounts to a breach of trust in civil sense.  In my view, the plain reading of the Words impute that the Plaintiff have embezzled or swallowed up the lands for his own, a kind of dishonest misappropriation of lands of another.  I do not agree with her interpretation, especially when I asked her whether there is “defalcating lands legally” (合法侵吞), she failed to address me further.  In essence, I am of the view that the Words impute criminal offence.  Further, it is actionable when I have found at least in relation to House no. 20, the evidence of PW3 suggested that the Words caused the landlord not to renew the lease to the Plaintiff.  Special damages is thus proved.  The next question is quantum and I shall come to that later.

50. Thirdly, she took a pleading point and submitted that the Plaintiff’s claim should be dismissed.  She relied on Order 82 Rule 3 of the Rules of the District Court to say that the Plaintiff shall not plead malice in the statement of claim and shall leave it until filing the Reply after a defendant raises the defence of qualified privilege and fair comment.  Order 82 Rules 3 reads:

“Where in an action for libel or slander the plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in his statement of claim give particulars of the facts on which he relies in support of the allegation of malice, but if the defendant pleads that any of those words or matters are fair comment on a matter of public interest or were published on a privileged occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he must serve a reply giving particulars of the facts and matters from which the malice is to be inferred.”

51. The crux of the above rule requires a plaintiff to give particulars on malice.  He needs not give particulars in the statement of claim.  But the rule does not prohibit giving particulars of malice in the statement of claim.  Counsel for the Defendant also agreed that it is trite law that malice defeats the defence of qualified privilege and fair comment, that means once malice is proven as a primary consideration, those defence, even if they are raised, should fail.  I do not see there is anything wrong nor the Defendant was being prejudiced or embarrassed by the Plaintiff’s early disclosure of the particulars of malice.  She also conceded that the Plaintiff’s pleadings did not embarrass the Defendant as they knew what are the Plaintiff’s allegations to meet. Even if she said that she was embarrassed, she could not explain why she has never applied to strike out pleadings that embarrass her.  After all, in so far as the pleadings are sufficiently concise and clear and did not take the other party by surprise, as in this case, I do not see any objectionable points that can be taken to prevent the Court from determining the real questions in controversy. 

52.  Regarding the pleading objection, she also cited the case of Omar, Zarina v Chow Yee Ping and Leong Moon Cheong HCA 3699 of 2002.  She submitted that Mr. Justice A. Cheung accepted similar pleading objection and dismissed the plaintiff’s claim.  In that case, there were disputes between ex-Secretary and a new committee of a Co-operative Building Society over the management of the building and the manner in conducting certain meetings. The alleged libelous letter was lengthy with sequence of events and evidence to support why the committee needed to set aside questionable resolutions that, if carried out, had the result to benefit the plaintiff’s private interest at the expense of the resources of other owners.  A questionnaire was distributed for other owners to express their views. In considering a pleading objection, Cheung J quoted the concessions made by the plaintiff’s counsel:

“[Paragraph 32] Mr. Chiu rightly accepted in final submission that the allegation in the statement of claim that the Defendants “maliciously published” the offending words was not sufficient pleading for express malice in the present context.”

[Paragraph 35] In other words, given the concession, and assuming that the Plaintiff is allowed to rely on what has been pleaded in support of a case of malice in response to the defence of qualified privilege… it is not established or is not sufficient to establish a case of malice (in the qualified privilege sense), the Plaintiff’s case must fail.” 

[Paragraph 59] It would be quite unfair to the Defendants to allow the Plaintiff to use what she has pleaded in relation to malice under fair comment to establish a case of malice under qualified privilege.  Whilst the lack of an honest belief might be an overlapping element in the two different meanings of malice under the two different defences… .

[Paragraph 60] This is fatal to the Plaintiff’s action.”

53. It is apparent that Cheung J upheld the pleading objection because firstly, counsel for the plaintiff conceded that the pleading is insufficient to establish malice in relation to the defence of qualified privilege.  Secondly, even if it is sufficient, it was not established on evidence.  Thirdly, the plaintiff attempted to use the pleaded malice in relation to fair comment to salvage the insufficient pleaded malice in relation to qualified privilege. 

54. In the present case, not only there was no such concession made by the Plaintiff, Counsel for the Defendant did not say that particulars of malice as pleaded were insufficient for pleading purpose. Secondly, the malice was established on evidence in this case.  Thirdly, from the parties’ pleadings, the parties clearly join issues on what were pleaded, including the allegations of malice.  It is apparent that the carefully worded particulars of malice could be used to defeat both the defence of fair comment and qualified privilege.  Thus in the Omar case where the plaintiff attempted to use the pleaded malice in relation to fair comment to salvage the insufficient pleaded malice in relation to qualified privilege, which is not case here.  In my view, the ultimate questions are of two fold: whether malice pleaded in this general sense would cause confusion to the Defendant, hence unfair to him; whether juries would be confused, if in a particular case, malice may bear different meanings in the defence of fair comment and qualified privilege.  The answer to the 1^st question is “No” because the Defendant’s counsel conceded that she was not embarrassed by what was pleaded by the Plaintiff.  The answer to the 2^nd question is “No” too.  This Court is sitting in both the capacity as a trial judge and a jury, so long as I properly remind myself that malice might bear different meanings and properly direct myself of the two questions below as suggested by Lord Nicholls in Cheng’s judgment, there would be no confusion. 

“Juries could be instructed with regard to: (a) fair comment, that the defence was defeated by proof that the defendant did not genuinely believe the opinion he expressed; and (b) qualified privilege, that the defence was defeated by proof that the defendant used the occasion for some purpose other than that for which the occasion was privileged.” 

55. I must add that each case depends on its own facts.  Words of slander and libel vary much.  Even similar words may carry different meanings in different context.  What the Court of Final Appeal concerns in Cheng’s judgment, is not only the constitutionally guaranteed freedom of speech, hence a more generous approach on the right of fair comment, but the Court also envisaged the juries might be confused by the concept of malice in relation to different defences. After suggested the above two questions for jury, Lord Nicholls with the endorsement of the bench, concluded that the Trial Judge’s summing-up on malice was fatally flawed and a new trial was ordered.

56. In brief, although her argument is an attractive one, I am not prepared to accept it. The technical objection must fail too. 

57. She has made other submissions and cited other authorities that were not mentioned here.  I am of the view that they either do not hold water, they are irrelevant or the facts are materially different from the present case or they do not carry the legal propositions as suggested by her. 

I. DAMAGES

Quantum of damages and aggravated damages

58. Counsel for the Plaintiff quantified the general damages and aggravated damages in the sums of HK$500,000 and HK$300,000 respectively while Counsel for the Defendant said at most the respective sums of HK$10,000 and HK$20,000 should be awarded.

59. The quantum of damages to be awarded shall depend on the facts and circumstances of each case. However, the Court has laid down a number of non-exhaustive factors for consideration.  In Hung Yuen Chan Robert v Hong Kong Standard Newspapers Ltd & Others  [1996] 4 HKC 519, where defamatory statements were made against a practicing solicitor, the Court held, per Mrs. Justice Le Pichon:-

 "(b) Relevant consideration

In assessing damages in the present case the relevant considerations include the following: the seriousness of the libel having regard to the plaintiff's position and standing; the prominence of the article and the circumstances of its publication; the conduct of the defendants including conduct subsequent to the plaintiff's complaint; and the absence of any retraction or apology."

"The injury to the plaintiff was exacerbated by the defendants' refusal to retract or apologize.  Further, additional distress would have been caused by the plea of justification and fair comment having regard to the fact that the fourth defendant had told the plaintiff that he knew the plaintiff had nothing to do with the scandal ..."

"... As the circumstances of each libel are likely to differ and the factors to be taken into account depend on the facts of each individual case, it is difficult to extrapolate from previous awards unless there are significant similarities"

"Finally, I should mention Kan Chung Nin v Li Kwong Ming [1986] HKLR 949.  The publication was a circular sent to members of a residents' association numbering 300 where there was an attack was on the personal and professional integrity of the plaintiff who was chairman of the executive committee of the association and a solicitor.  The award was $65,000.  It is to be noted that not only is this case is a decade old, the libel was published in a limited geographical area to a limited group of people.  It will be seen that the facts there are a far cry from those of the present case "

"Having regard to the relevant principles set out above and the need to restore the plaintiff's 'pride and confidence', 'to convince a bystander the baselessness of the charge', and after making an adjustment to cater for double recovery, I reach the conclusion that a proper award of damages in this case is $700,000 and there will accordingly be a judgment for the plaintiff in this sum. I also grant the injunction sought..."

60. In Lee Ching v Lau May Ming, HCA 108 of 2005 (Date of Judgment: 26 April, 2007), the Court of First Instance dealt with a libel claim by a dedicated volunteers of Suicide Prevention Services (生命熱線) that had 200 members.  After the Court had summarized each of the five alleged imputations in paragraphs 46 thereof, the Court held that, per Mr. Justice Poon:-

"Generally speaking, a defamatory imputation is one to the plaintiff's discredit; or which tends to lower him in the estimation of others; or causes him to be shunned or avoided; or exposes him to hatred contempt or ridicule: see Gatley, para. 2.1 at pp.28-29; applied by Cheung J (as he then was) in Drummond v Kwaku [2001] 1 HKLRD 604, at p. 629 C-E."

"[para207]: In Hung Yuen Chan Robert v. Hongkong Standard Newspaper Ltd [1996] 4 HKC 519, Le Pichon J (as she then was) summarised the general principles for awarding general damages thus :

“The objective is ‘to restore the plaintiff, as far as money can do so, to the position he would have been in if the tort had not been committed.’  See Duncan & Neill, Defamation, op.cit para 18.04.  Where there has been no retraction or apology, an order for damages is the only solatium available to the plaintiff.

In the recent Court of Appeal decision in Cheung Ng Sheong Steven v Eastweek Publisher Ltd [1995] 3 HKC 601, it had to consider the question of damages for libel. It accepted (at p 613D-F) the submission that :

‘… damages for libel must provide for several disparate elements, not only damage to esteem and reputation.  They also ‘must be sufficient to publicly and demonstratively and absolutely vindicate the plaintiff and to compensate for seriously injured feelings (Yu Kwong Chu v Consolidated Newspapers Ltd (A258/86, unreported) at p 30’ not only caused by the original libel but all the subsequent aggravation thereof down to the verdict, which would restore the plaintiff’s ‘pride and confidence’ (McCarey v Associated Newspapers Ltd (No 2) [1964] 3 ALL ER 947 at 958).  They must enable the plaintiff to convince a bystander the baselessness of the charge if ‘the libel driven underground, emerges from its lurking place at some future date’ (Cassell & Co v Broome [1972] 1 ALL ER 801).’

"209. The failure of the defendant to apologize or his persistence with the plea of justification may aggravate the damages : Gatley, para. 9.14 at p. 245; Sutcliff v. Presdram Ltd [1991] 1 QB 153, per Nourse LJ at p. 184E-F."

"210. A plea of justification which is not made good at the trial may form the basis of an award of aggravated damages : Mak Shiu Tong v. Yue Kwok Ying [2005] 1 HKLRD 33, per Ribeiro PJ at p. 46F-G."

"214. Having carefully considered all the circumstances, I shall award as general damages HK$200,000 and aggravated damages HK$200,000 to each of the plaintiffs."

61. Hung Yuen Chan case cited above was followed in a recent decision in Chan Iu Seng v Ko Choi Hin  HCA 2901 & 2935 of 2004 (Date of Judgment 28/1/2010), where defamatory statements were made against the plaintiffs who were chairman and members of the Association, and the Court held, per Madam Justice Chu J,:-

"2.  The Association [i.e.香港中山隆鎮同鄉會, see para.1 of the judgment] is a company incorporated in Hong Kong in 1968 and limited by guarantee.  It was established for the objects of, inter alia, fostering the fraternity and unity of the clansmen of Chung Shan (中山) who are in Hong Kong and overseas, and of engaging in charitable undertakings.  At the relevant time in November 2004, there were about 6,000 members in the Association.  Its board of directions consisted of 60 directors elected by its members.

3.  The two Plaintiffs and the defendants are all members of the Association.

26. Although the defendants denied the words were defamatory of the plaintiff, no arguments were advanced on this at the trial. The plaintiffs contend and I agree of: (1) removing Chairman Fong by a libellous statement, (2) conspiring with Mr Zeall to claim double and unjustified legal fees from the Association and (3) causing the death of Siu Kam Dok.  In this case of Mr. Lam, the Circular further accused him of using the letter dated 11 November, 2004 to deceive members and to cover up his bad deeds and the truth, so that he could take control of the Association again and embezzle funds of the Association to make up for the legal costs of the lost litigations.

59. As to the amount of damages to be awarded, [L]e Pichon J held in Hung Yuen Chan Robert v Hong Kong standard Newspapers Ltd & Ors at 534D-E that the relevant considerations include: the seriousness of the libel having regard to the plaintiff's position and standing; prominence of the article and the circumstances of its publication; conduct of the defendants including conduct subsequent to the plaintiff's complaint; and the absence of any retraction or apology.  Ultimately, each case depends on its facts and "it is difficult to extrapolate from previous awards unless there are significant similarities": at 536G-H

60. In the present case, the considerations that are relevant to assessing the award of damages include:

(1)  Both plaintiffs enjoy substantial standing and reputation both within the Association and in the community....

(2)  The libel involved very unpleasant and serious attacks against the plaintiffs' integrity, honesty and propriety in conduct, including conduct in the affairs of the Association.  They were accused of dishonesty, corruption, abusing their power and position in the Association and even causing the death of a fellow director.

(3)  The circular was apparently sent or circulated to all members of the Association.  The Association had a membership of some 6,000 members.  This is quite a wide publication.  There will be serious adverse effect on the plaintiffs' reputation within the Association.

(4)  The defendants had not retracted from the Circular.  There was also no offer of apology.  Their evidence also shows that they could not be bothered to do anything about the Circular.

(5)  On the other hand, it is to be noted that defendants have run a restrictive defence against the claims.

61. The plaintiffs referred to and drew comparison from the award made in Lee Ching v Lau May Ming [2007] 3 HKLRD 623. In that case, the plaintiffs were experienced and dedicated volunteer members of a charitable organization that had a membership of about 200 members.  The defendant, who was the chairman of the board of governors, issued a letter to all members accusing the plaintiffs of failure to perform their duties as governors, spreading rumours and malicious slander and wrongful accusations against the defendant that threatened the organization's coherence and quality of service and affected the defendant's personal health, and also engaging in inappropriate and illegal tricks to seize power.  After a full trial that raised defences of justification and qualified privilege, Poon J awarded each of the plaintiffs $200,000 in general damages and $200,000 in aggravated damages. ..."

"64. Having considered all the circumstances of this case, noting in particular the factors indicated above, I am of the view that an award of $300,000 for each of the plaintiff in general damages is appropriate.  And I so order."

62. I agree that while no case is having identical facts with another case, but the facts of the present case bear substantial factual similarities with the case of Chan Iu Seng as summarized hereunder:-

(1)  Both cases were about defamation claim within a clansmen's association.

(2)  Both clansmen's associations enjoyed a sizeable number of directorship and membership.

(3)  In both cases, the plaintiffs and the defendants were members of the clansmen association.

(4)  In both cases, the defamatory allegations include embezzlement of the members' or association's interest.

(5)  In both cases, the defendants did not care with the defamatory words when it was subsequently spread out.

63. Although Chan Iu Seng case involves libel, something which is in a permanent form while in the present case, the Words were slander in nature.  Nonetheless, at trial, the Defendant attempted to rely on a libelous letter issued by Shenzhen Committee or Shenzhen Company.  That made the facts of this case more serious in the sense that as at the trial, there was no retraction from the conduct.  The Defendant procured the Words be put into a permanent form that the Defendant relied on it at trial.  Anyone in the office of the Shenzhen Committee or the Shenzhen Company can be accessed to the document and the Words were spread across the border.  As admitted by the Defendant, after the Meeting, he went to Shenzhen to inform DW3 of what happened during the Meeting.  DW3 was the officer bearer of the Shenzhen Committee and the Shenzhen Company.  Before the trial, the Defendant procured the Shenzhen Committee to issue the libelous letter that DW3 tried to distant himself off the letter at trial.  Further, the Defendant also admitted that when he was in Fu Tian Village, Shenzhen, he heard about the villagers talking about defalcating the villager’s land.  He did not participate in the chat nor did he seek to clarify for the Plaintiff.

64. Besides, the Plaintiff has been serving for the Association Limited since it was established for about 28 years continuously up to the date of the trial.  The Defendant defamed the Plaintiff in front of about 20 committee members.  Through the Defendant’s channel, the Words touched down in Shenzhen that resulted in a libelous letter issued by the Shenzhen Committee, a committee representing at least a few thousand villagers.  While the main objective of the Association Limited is for the fostering of the fraternity of the clansmen of Wongs, and the Plaintiff has been endeavouring to promote the same, the substance of the defamatory words brought the Plaintiff to the most unwanted hatred within Wong’s clansmen.  The Plaintiff suffered of loss of confidence, dignity and reputation among his clansmen.  He also enjoys a high degree of reputation and social recognition similar to the plaintiffs in Chan Iu Seng case.

65.  I do not intend to award damages in respect of the loss of rental profits that the Plaintiff sustained in respect of House No. 20. For the rest the 3 landlords who allegedly refused to renew the leases because of the Words, they were not proved. In my view, having drawn the analogy with the cases cited above, it seems that an award to restore the reputation is more suitable.  In brief, I come to the view that an award of HK$100,000 will restore the reputation of the Plaintiff in the present case, so far as money can do.

Aggravated damages

66. The Plaintiff also seeks for aggravated damages on the ground that the Plaintiff had already asked the Defendant to mend his misdeed, through the help of the clansman before the Plaintiff's solicitors' pre-action letter was issued.  The Defendant was given sufficient time and opportunity to apologize before the writ was issued in August 2005 or thereafter.

67. However, the Defendant, through his counsel, pleaded all possible defences including justification at trial.  However, no evidence was adduced in relation to “justification” except the said libelous letter issued by the Shenzhen Committee.  Further, the Defendant had never made any apology, whether verbally or in writing.

68. In Lee Ching v Lau May Ming, HCA 108 of 2005, the Court held that:-

"209.  The failure of the defendant to apologize or his persistence with the plea of justification may aggravate the damages : Gatley, para. 9.14 at p. 245; Sutcliff v. Presdram Ltd [1991] 1 QB 153, per Nourse LJ at p. 184E-F."

"210. A plea of justification which is not made good at the trial may form the basis of an award of aggravated damages : Mak Shiu Tong v. Yue Kwok Ying [2005] 1 HKLRD 33, per Ribeiro PJ at p. 46F-G."

69. As stated before, the Defendant procured Shenzhen Committee to issue the said libelous letter dated 19^th October 2009 entitled "有關福田村香港土地說明" which contained defamatory words in the form of libel.  The document included the following unwarranted defamatory allegations to the effect that the Plaintiff made use of Wong Kam Pok Tso to misappropriate the lands of the villagers of Fu Tian Village:-

"...當時擔任香港福田黃環慶堂宗親會理事長的黃英就以地權屬黃金博祖堂所有為名，佔為己有。 我村得知此時後，2003年派黃偉光到香港在黃環慶堂會議中對此事的做法提出強烈抗議。事件至今天未得到解決。"

70. The reliance on the letter at trial is just the repetition of the Words that the Defendant knew that it is unsustainable. 

71. Having considered the decided cases and all of the factors including the attitude of the Defendant subsequent to 22^nd August, 2004, an award of HK$100,000 as aggravated damages is fair and reasonable. 

72. I have considered the case of Yiu Hon Lam DCCJ 5351 of 2005 cited by the Defendant in which the plaintiff was awarded the sums of HK$10,000 and HK$20,000 for general and aggravated damages.  But as I have indicated above that Chan Iu Heng case and Lee Ching case are better comparables than Yiu Hon Lam case.

Injunction

73. In the premises, in particular, the Defendant’s reliance on the said libelous letter, an injunction order is necessary for the Court to restrain the Defendant from publishing or causing to be published the Words or similar words in the document dated 19^th October 2009 issued by the Shenzhen Committee. 

J.  CONCLUSION

74. I allow the Plaintiff’s claim.  I hereby give the following orders:-

(1)  Judgment be entered in favour of the Plaintiff against the Defendant in the sum of $200,000 with interest at the judgment rate from the date of the Writ until payment.

(2)  An injunction restraining the Defendant, whether by himself, his servants or agents or otherwise howsoever from publishing or causing to be published the Words or similar words.

(3)  Cost order nisi that the Defendant shall pay the Plaintiff the costs of the action, including any costs reserved, to be taxed if not agreed.