TANG WING LAM DAVID AND ANOTHER v. YICK KAM PING BELINDA

CACV24 /2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL No. 24 of 2005

(ON APPEAL FROM HCA No. 1852  OF 2003)

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REASONS FOR JUDGMENT

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Hon. Yeung JA:

1.  I have read the judgment of Yuen JA.  I agree with her conclusion and reasoning.  The 1^st Plaintiff’s appeal was accordingly dismissed with costs to be taxed on an indemnity basis. 

Hon. Yuen JA:

2.  This is the 1^st Plaintiff’s appeal from a judgment of Chung J. dismissing the Plaintiffs’ claim for damages for defamation.  In his judgment, the judge said the subject-matter of the action was trivial and he described the action as ‘making a mountain out of a mole hill’.  The judge criticized the Plaintiffs, who are solicitors, for wasting judicial resources on such an unworthy cause.

3.  This court dismissed the 1^st Plaintiff’s appeal without calling on counsel for the respondent.  After hearing submissions, we also ordered that the appellant pay the respondent’s costs on an indemnity basis.  The reasons for our judgment and order for costs appear below.

Background

4.  The background to the action was commonplace enough.  The Defendant Miss Yick owned a flat (33C) in a block of flats.  It was occupied by a tenant.   A Ms Yiu owned the flat below (32C). 

5.  In March - April 2003, water seepage was noticed on the ceiling of 32C.  Ms Yiu instructed a firm of solicitors, Fung, Wong, Ng & Lam ("FWNL"). 

6.  On 28 April 2003, FWNL wrote to the Defendant complaining of the seepage and demanding that action be taken by her within 5 days.

7.  At the expiry of that period on 3 May 2003, the Defendant replied to FWNL saying that she was now investigating the complaint of water seepage, and indicating that she would seek professional assistance or assistance from a government authority to check if the water did in fact come from 33C.

Appointment for surveyor to inspect 33C

8.  On 6 May 2003, FWNL replied to the Defendant saying that Ms Yiu had appointed an expert on 5 May 2003 to confirm the cause of seepage.  (Pausing here, it is obvious from this letter that the expert referred to must have been someone other than the solicitors themselves, as the solicitors had been involved before 5 May 2003).  FWNL went on to say that as 33C had not been available for inspection on 5 May 2003, another inspection by "ours’ expert" (presumably meaning "our client’s expert") would be arranged. 

9.  On the same day, the Defendant wrote to the management company (with a copy to FWNL) confirming her agreement to allow Ms Yiu’s surveyors to enter 33C for inspection on 13 May 2003 at a stated time.

10.  On 9 May 2003, FWNL wrote to the Defendant advising that "ours’ expert will come and inspect your premises on 13^th May 2003 (Tuesday) at about 3:00 p.m. to conduct investigation into the seepage ..." (emphasis added).

11.  It is thus clear that at no stage had the Defendant agreed that anyone other than Ms Yiu’s surveyor would be permitted entry into 33C. 

Events of 13 May 2003

12.  On 13 May 2003 however, the following 6 persons went to 33C:

(1) the 1^st Plaintiff, who was a solicitor at FWNL, and the 2^nd Plaintiff, who was a trainee at the same firm; 

(2) Ms Yiu’s sister;

(3) Mr Stewart Wong, a surveyor ("the Surveyor");

(4) Mr Lee and Mr Choi from the management company ("the Management Staff").

13. The 1^st Plaintiff had brought along a tape recorder, and a transcript of the tape recording was placed before the judge and this court.

14.  Inside 33C were the Defendant and the tenant.  The Management Staff informed the Defendant that the surveyor had arrived. Counsel for the 1^st Plaintiff accepted that before the 6 persons entered 33C, no one had informed the Defendant that any solicitors were included in the party. 

15.  After they gained entry, the Defendant asked for their identities.  The Surveyor gave his name card to the Defendant and Ms Yiu’s sister was identified as such.  At a point in time which the judge found was "very shortly after the Plaintiffs and the others were allowed into the Defendant’s flat", and according to the transcript after someone had addressed the 1^st Plaintiff as "solicitor", the Defendant asked the 1^st Plaintiff for his name card.

16.  For some reason which this court cannot understand, the 1^st Plaintiff refused to give it to the Defendant.  He referred her to the correspondence.  That was however of no assistance, because what the Defendant was asking for were the name cards of the persons who had entered her premises in order to verify their identities.

17.  When the Management Staff asked the 1^st Plaintiff again for his name card, he again said that he would not supply it.  

18.  According to the transcript, the Defendant said at that stage that she would not then know who they were, and asked how she would be able to identify them. 

19.  The judge found that the Defendant thereupon asked the Plaintiffs to leave her property.  This finding was based on the evidence of the Defendant herself, the tenant and the Management Staff (who also said that as they were on private property, the owner had a right to request unknown persons to leave).

20.  Indeed the 1^st Plaintiff’s own evidence was that having been asked to leave, he indicated that they would leave.  However, they did not leave, probably because (as the judge found) at that point, the Surveyor said that they were in the same "group" (using the word in English).  The Defendant did not then press the Plaintiffs to leave, and the judge found that nothing further was said about the Plaintiffs’ presence. 

Allegedly defamatory statement - Defendant’s letter dated 14 May 2003

21.  The next day, the Defendant wrote a letter to Ms Yiu, which was copied to the Surveyor’s firm, the management company and FWNL.  The letter (in its original text) is reproduced below:

"Dear Madam,

I refer to your letter from Fung Wong Ng & Lam dated May 9/03 which confirmed ‘expert’ will come and inspect my premises on May 13/03 at 3:00 p.m. to conduct investigation of water seepage.

It happened to me yesterday apart Mr Steward S.T. Wong, Proficient Surveyors & Co. claimed as the ‘surveyor’, there had also two unknown men said by the ‘surveyor’ that they were the ‘solicitors’ also entered into my premises without my permission despite myself and the management office demanding them to leave for the reason they were unable to provide any of their identity and proof of their profession.

I hereby strongly protest that it is totally beyond our previous agreement and now I would also very doubt of the truthfulness and correctness of the water seepage investigation report.  Meanwhile I must stress that I reserve all my legal right and complaint to the LAW SOCIETY office in Hong Kong".

Events after Defendant’s letter

22. The 1^st Plaintiff took offence at this.  FWNL (acting on his behalf) wrote to the Defendant:

"	In your above letter dated 14th May 2003 you stated that:- ‘... they were the ‘solicitors’ also entered into my premises without my permission despite myself and the management office demanding them to leave’ (emphasis supplied).
	We write on behalf of our client to put on records that :-
	(i)	on 13th May 2003, Mr Tang and Mr Keith Wong accompanied Mr Steward Wong, an expert witness of the owner of the 32C premises to inspect and confirm seepage from your premises ... which caused damages to the ceiling of the 32C premises;
	(ii)	the visit by Mr Steward Wong and Mr Tang to the 33C premises on 13th May 2003 at about 3:00 p.m. were arranged and agreed by you and the owner of the 32C premises through the management office of Tsuen Wan Centre;
	(iii)	Mr Tang had disclosed and confirmed his identity and the identity of Mr Keith Wong to you in the presence of the representatives of the Management of the Tsuen Wan Centre;
	(iv)	Mr Tang and Mr Keith Wong’s presence during the inspection were not objected;
	(v)	There was no demand from you and/or the "management office" demanding Mr Tang and Mr Keith Wong to leave your premises.
	These allegations of such entering into your premises and stayed thereon without permission by Mr Tang as a solicitor by profession in the course of carrying out his duties are completely untrue and constitute a grave libel upon our client".

23. The Defendant instructed solicitors who replied to FWNL as follows:

"	Contrary to what you seek to put on record, we are instructed by our client that:-
	(1)	She did consent to an expert retained by the Owner of [32C] conducting the necessary investigation into the alleged water seepage problem on 13th May 2003, and that she had never changed her position, as evidenced by her allowing the Owner’s expert into her flat on 13th  May 2003 to conduct the investigation.
	(2)	You may agree that the investigation, given its nature, did not require the presence of a lawyer or lawyers and that their presence was unexpected.  The consent aforesaid was restricted to the presence of the Owner’s expert for the purposes of conducting the investigation.  There was no mention of any person other than the expert who would come to her place during or in connection with the investigation.
	(3)	Doing what a reasonable person would have done, our client, upon realizing that the two unknown persons who had entered her flat were not part of the expert’s team, requested them to show proof that they were in fact lawyers as they had claimed to be and that request was made in presence of the management staff of the building.
	(4)	Regrettably, the two unknown persons refused or failed to produce such proof.  As a result, our client raised an objection to the two unknown persons’ presence in her flat and the management staff present requested the unknown persons to leave, which they refused to do.
	(5)	It was only until our client received your letter dated  16th May 2003 that she realized the two unknown persons were Mr David W. L. Tang and Mr Keith Wong.  Our client would like to know in what capacity was Mr Keith Wong then acting".

Proceedings

24. The Plaintiffs issued proceedings for damages in defamation.  It was pleaded that the natural and ordinary meaning of the words were that:

(1) the Plaintiffs had failed and/or refused to disclose proof of their identities; and

(2) the Plaintiffs were in the Defendant’s premises without her permission.

Although innuendo had been pleaded, it was abandoned at trial.

25. The Defendant was not legally represented.  The defence she filed  basically followed the line of her solicitors’ letter in reply to the letter before action.  The judge considered that the defence was essentially one of justification and honest comment.   

Reference to Plaintiffs and publication

26. The judge held that the Defendant’s letter did refer to the Plaintiffs and that there had been publication of the letter to third parties (although not all the parties alleged by the Plaintiffs). 

Meaning of the Defendant’s letter

27. The judge held that the Defendant’s letter of 14 May 2003 comprised two statements, which he called for short:

(1) "the failure to disclose proof of identity proposition" and

(2) "the unauthorised entry proposition".

No defamatory meanings

28. The judge held that the 1^st statement did not bear any defamatory meaning (para. 39).  As for the 2^nd statement, he held that the most injurious meaning it could bear was that the Plaintiffs had trespassed on the Defendant’s property and in doing so, had acted unethically and unprofessionally.  However, he held (referring to Groom v Crocker [1937] 3 All ER 844, 848) that it was not defamatory to accuse a person of a minor act of tort (para. 42).

Justification

29. In any event, the judge held that the defence of justification applied to both statements.  As for the 1^st statement, the Plaintiffs had in fact failed to disclose proof of their identities.  As for the 2^nd statement, the judge read the letter strictly as a statement that the Plaintiffs had “entered” the property without the Defendant’s permission, not that they had continued to “stay” there without permission.  As the Defendant had asked them to leave shortly after they had entered the property and they had not done so, the judge held that their entry was unauthorised.

30. Accordingly, the judge did not consider it necessary to consider the other defence of honest comment.  The judge also indicated that the defence of qualified privilege might have been relevant.  However this had not been pleaded as a defence.  In view of his findings that there had been no defamation and in any event that the statements were true, the judge also did not consider it necessary to consider the defence of qualified privilege.

31. The judge dismissed the action and ordered costs to be paid by the Plaintiffs.

Appeal

32. The 1^st Plaintiff appealed (the 2^nd Plaintiff sensibly did not).  Essentially, the points raised by counsel for the 1^st Plaintiff were these.

(1)	As for the 1st statement, the judge had understated its “sting”.  The Defendant had said in the letter that the 1st Plaintiff was “unable to provide any of their identity and proof of their profession”, not that he simply had not done so.  Therefore, the 1st statement did bear a defamatory meaning.
(2)	As for the 2nd statement, the 1st Plaintiff accepts that the judge was right to find that it meant that the 1st Plaintiff had entered without permission and refused to leave when asked to do so.  This amounted to trespass, and the judge was wrong in holding that Groom v Crocker was authority that it was not defamatory to say that a person had committed a tort.
(3)	As for the 1st statement, the defence of justification did not apply because the 1st Plaintiff had only refused to produce his name card, not that he was unable to provide proof of his identity and profession.
(4)	As for the 2nd statement, the defence of justification did not apply because (a) the 1st Plaintiff had been allowed to enter 33C; (b) in any event, after the Surveyor said the 1st Plaintiff was with his “group”, the Defendant did not carry on with her demand that he leave the property.  Any earlier trespass had therefore been waived retrospectively.
I shall deal with each of these points in turn.

Point (1)

33. First, the point was that the Defendant had said in the letter that the 1^st Plaintiff was “unable to provide any of their identity and proof of their profession”, not simply  that he had not done so, and so the judge had understated the “sting” of the statement. 

34. I do not think the judge misunderstood the natural and ordinary meaning of the words.  He had described the 1^st statement as “failure” to disclose proof of identity, a word which may be regarded as more accusatory in nature than the word “unable”. In any event, I would have thought that in the circumstances, in saying that the 1^st Plaintiff was “unable” to produce proof of his identity when he had actually refused to do so for no good reason, the Defendant could be said to have been using a more courteous turn of phrase, rather than making a defamatory statement.

Point (2)

35. As for the second point on appeal, I am prepared to accept for present purposes that it is difficult to derive from Groom v Crocker authority for the judge’s proposition that a statement that a person (in particular a solicitor)  had committed the tort of trespass was not defamatory.  I do not think it is necessary to decide this issue in the present appeal, because even if the 2^nd statement did bear that defamatory meaning, the defence of justification was made out. 

Point (3)

36. As for the defence of justification of the 1^st statement, I have discussed earlier (para. 34) the meaning of the word “unable” in the Defendant’s letter.  But even if a defamatory meaning is to be given to the word “unable”, it would be justified.  A solicitor would reasonably be expected to carry his name card with him whilst going about his client’s business, and would reasonably be expected to produce it when asked for it.  When he does not do so, he has clearly been unable to produce the most conventional means of proving his identity and profession. 

37. Counsel for the 1^st Plaintiff submitted that it was not true that he was unable to provide “proof of his identity and profession”, because he had only refused to show his name card when the Defendant asked for it, and he had not been asked e.g. for his identity card or his Law Society membership card. 

38. I have to say that I was very surprised that such an argument was advanced.  Obviously the purpose of the Defendant asking the 1^st Plaintiff for his name card was to verify his identity as a solicitor.  Indeed, the transcript shows that the Defendant expressly said so.  As I have noted above, a solicitor’s name card is the most conventionally-known means of verifying his identity as a solicitor, even if not the most reliable.  There was no evidence to show that members of the public knew that solicitors carry Law Society membership cards as another means of proof of their identity and profession.  In any event, the argument is artificial as the 1^st Plaintiff never offered to show the Defendant any alternative means of verifying his identity as a solicitor, such as his Law Society membership card. 

Point (4)

39. Finally, it was submitted on behalf of the 1^st Plaintiff that (a) he had not trespassed on the property as he had been allowed entry.  That is clearly wrong.  It was not as if there was a turnstile at the Defendant’s door serving as a checkpoint for each individual coming through the doorway.  The Defendant had only consented to entry by the surveyor, and prior to their entry, she was only told that the surveyor had arrived.  Clearly the 1^st Plaintiff’s initial entry was not with the Defendant’s consent. 

40. As for (b), counsel for the 1^st Plaintiff submitted that after the Surveyor said that he was with his “group”, the Defendant did not repeat her demand that he leave the property, and so any earlier trespass had been waived with retroactive effect.

41. It is clear law that a person cannot be held to have waived or abandoned his legal rights if he does not have full knowledge of the facts.  When the Surveyor said that the 1^st Plaintiff was in his “group”, that statement was ambiguous.  He was representing that the 1^st Plaintiff was there in the capacity as part of a surveyor’s team (for whom the Defendant was obliged to permit entry).  At best (for the 1^st Plaintiff’s case), the Defendant was given conflicting information about the 1^st Plaintiff’s identity and capacity.  At worst, the 1^st Plaintiff was staying in the Defendant’s property under false pretences.  A waiver or abandonment of a legal right could not reasonably be inferred in those circumstances. 

42. It was submitted on behalf of the 1^st Plaintiff that the Surveyor was taking responsibility for him, and that was accepted by the Defendant which was why she did not persist in her request that he leave the property.  That submission is not justified on the evidence.  The Defendant was not concerned with who would take responsibility for the 1^st Plaintiff’s actions on the property.  The question of responsibility was never raised.  The Defendant was expressly concerned with identity, and as the Defendant had just asked the 1^st Plaintiff to leave as he had not verified his identity, what the Surveyor said was obviously directed at that issue to make his continued presence acceptable to the Defendant.

43. By reason of the above matters, I do not consider that the Defendant had waived the 1^st Plaintiff’s trespass and on the undisputed evidence, the defence of justification was clearly made out.    

44. The 1^st Plaintiff’s appeal was accordingly dismissed.

Indemnity basis for costs

45. As for costs, it is now established that an award of indemnity costs can be made where there is some special and unusual feature (Town Planning Board v Society for the Protection of the Harbour Ltd (No. 2) [2004] 7 HKCFAR 114).

46. The 1^st Plaintiff’s conduct in refusing to provide a name card was not only surprising but unreasonable and completely unjustified.  His continued presence on the property (after the Defendant had asked him to leave), purportedly as part of the surveyor’s “group”, was unwise.  His commencement of the action has already been criticized by the trial judge as making a mountain out of a molehill.  Perhaps in the heat of the moment with the Defendant threatening a complaint to the Law Society, a letter of demand was considered appropriate.  But there was a period of 1½ years between the events of May 2003 and the trial in November 2004 for a more mature examination of the wisdom of maintaining this action.

47. It may have been that the 1^st Plaintiff was lacking in objectivity by being involved in this case as both litigant and solicitor.  However, having been reminded by the judge that as an officer of the court, he should not have wasted judicial resources in prosecuting this action, he went further and brought an unmeritorious appeal.  I regret to have to say that the appeal has to be described as oppressive and the Defendant should not have to suffer for it.  An award of costs on an indemnity basis was clearly warranted.

Hon. Sakhrani J:

48. I agree.