CHOI YUET WING v. TANG SAI CHEONG

[English Translation – 英譯本]

DCCJ 567/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 567 OF 2013

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JUDGMENT

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Introduction

1. The present action for defamation arose from an email sent to 3 managers of a Tso Tong.

2. The plaintiff was a village representative of Shui Lau Tin Tsuen, Pat Heung, Yuen Long, New Territories (“the Village”). The defendant was an indigenous villager of the Village and also one of the managers of Tang Sam U Tong, one of the Tso Tongs of the Village.

3. On 13 December 2012, the defendant and Tang Mei Wah, another manager of Tang Sam U Tong, and two other indigenous villagers jointly wrote to the Yuen Long District Lands Office raising their objections to two applications made by non-indigenous villagers of the Village for the construction of small houses on the land of the Village (this situation is colloquially known as “fei ding”; small houses built by indigenous villagers are colloquially known as “ding houses”. They will be referred to as such hereinbelow).

4. On 18 December 2012, Tang Chi Wing (transliteration) was yet another manager of Tang Sam U Tong. On 18 December 2012, acting on behalf of someone, Tang Chi Wing asked the plaintiff questions regarding the “well-being fee” of $50,000 payable for each house and the apportionment of the money after it had been received.

5. On 26 December 2012, Tang Mei Wah indicated to the defendant that the plaintiff had told him that he was in charge of the “fei ding” house construction project and warned Tang Mei Wah not to create trouble and to becareful.

6. On the same evening, the defendant sent an email (“the email”) to three of the managers of Tang Sam U Tong, namely Tang Chi Wing, Tang Mei Fuk and Tang On Shou (transliterations).

7. The plaintiff, who received the email from Tang Mei Fuk, feels that he has been defamed.

The email in question

8. The material part of the email that the plaintiff claimsis injurious to his reputation reads as follows:

“Manager of this Tong, Tang Mei Wah, ran into the Chief of this Village, Choi Yuet Wing, this afternoon. Choi Yuet Wing suddenly uttered words of threat to Tang Mei Wah. Village Chief said: the construction of ‘fei ding’ houses in D112/511S.A. & D112/511S.A. was his ‘stall’ of which he wasfully in charge. He told Tang Mei Wah not to play games, and also told Tang Mei Wah to be careful. This matter was [rather] serious as it is a criminal offence for the Village Chief to utter words of threat. I am of the view that we managers should go to a police station to have the matter recorded, and also write to the District Lands Office of Yuen Long to inform the District Lands Officer that the District Lands Office should be asked to suspend the house construction applications on the ground that ‘the proposed construction of ding houses on D112/511S.A & D112/511S.Bhas already involved the participation of triad members, and this Tso Tong has made a report to the police who have opened a file and are investigating the matter’.”

Plaintiff’s case

9. The plaintiff alleges that the email passage quoted above contains the following meanings:

(1) It is a criminal offence for the plaintiff to threaten Tang Mei Wah;

(2) The plaintiff has committed a criminal offence;

(3) The plaintiff is colluding with triad members; and

(4) The plaintiff is an evil person and/or has done something evil.

Defence case

10. The defendant alleges that as Tang Mei Wah, one of the incoming managers of Tang Sam U Tong, was threatened, he sent the email to three of the incoming managers to discuss how the matter should be dealt with. He put forward a proposal and invited comments from the other managers.

11. The defendant stresses that the email was solelyin the nature of aninternal meeting and discussion among the incoming managers of Tang Sam U Tong and was purely for internal circulation among the incoming managers.

Issues

12. The issues before this court are:

(1) Had the plaintiff uttered any words of threat to Tang Mei Wah;

(2) If he had not, did Tang Mei Wah falsely represent to the defendant that he had been threatened by the plaintiff;

(3) Is the content of the email sent by the defendant defamatory in nature;

(4) If it is, did the defendant send the email on an occasion of qualified privilege;

(5) If he did, can the defendant be protected by qualified privilege; and

(6) If he cannot, the measure of damages to be awarded to the plaintiff.

13.  At trial, Mr Chain,Counsel for the plaintiff, indicated that the plaintiff would not seek relief in the form of an injunction. It is therefore not necessary for this court to deal with it.

Had the plaintiff uttered any words of threat to Tang Mei Wah?

14. Both the plaintiff and Tang Mei Wah pointed out in their evidence that the two of them met by chance by the nullah of the Village on the afternoon of 26 December 2012.

15. The plaintiff said at that time, Tang Mei Wah, who was riding a bicycle, pulled up by the passenger door of his car, and he drove away without saying anything to Tang Mei Wah.

16. On the other hand, Tang Mei Wah claimed that it was the plaintiff who raised his hand to signal to him to stop his bicycle and then told him that the construction of the two “fei ding” houses by the side of the river was a development of the plaintiff’s Tso Tong of which the plaintiff was fully in charge. He told him not to create trouble (not to play games) and to be careful.

17. It can be seen from the email from Tang Chi Wing to the plaintiff on 18 December 2012 that, apart from enquiring about the well-being fee for the construction of “fei ding” houses, he also disclosed that there were already villagers who voiced objection to the District Lands Office against the relevant applications. This matter concerned the interest of the plaintiff.

18. After learning about the emails which the defendant dispatched on 26 and 27 December 2012 and which the plaintiff considered injurious to his reputation, the plaintiff instructed his lawyer to issue the defendant a letter on the following day. This shows that the plaintiff wasted no time when it came to defending his own interest.

19. As far as the evidence of Tang Mei Wah is concerned, what he said in court was by and large consistent with his witness statement.  Mr Chain pointed out that, in Tang Mei Wah’s descriptionof the gestures of the plaintiff in the car, there were discrepancies between his witness statement and his testimony in court. In my view, this was no more than the result of a lapse of memory following the passage of time.

20. It can be seen from page 26 of the transcript of the Tang Sam U Tong meeting held on 13 January 2013 produced by the defendant that Tang Mei Wah raised this matter again at the meeting.

21. I do not see what motive there was for Tang Mei Wah to make things up again. I do not believe that the plaintiff did not raise the matter of the construction of the “fei ding” houses with Tang Mei Wah when they ran into each other.

22. I accept the evidence given by Tang Mei Wah which I consider more credible.

Did Tang Mei Wah falsely represent to the defendant that he had been threatened by the plaintiff?

23. On the basis of my finding as set out in paragraph 22, I believe that Tang Mei Wah told the defendant what had happened on the same day.

Is the content of the email sent by the defendant defamatory in nature?

24. In Next Magazine Publishing Ltd v Oriental Daily Publisher Ltd [2000] 2 HKC 557 at 562-563, the Court of Final Appeal held that, in interpreting the meaning of allegedly libellous words, the court has to arrive at a single meaning as the natural and ordinary meaning of the words. The trial judge should first decide what the natural and ordinary meaning of the words as understood by a reasonable reader is, and then decidewhether a reasonable person would understand those words as bearing that meaning.[1]

25. Applying the aforesaid principles, I am of the view that the single meaning of the material part of the email which the plaintiff complains of is as follows:

(1) It is a criminal act for the plaintiff to utter words of threat to Tang Mei Wah;

(2) The plaintiff has committed a criminal offence; and

(3) The plaintiff is a triad member.

26. Over the years, the courts have defined defamation in different ways. InOriental Daily Publisher Ltd & ano v Ming Pao Holdings Ltd & others, HCA 607/2008(28.5.2010, unreported), Chung J adopted the following definition set out inGatley on Libel and Slander, the authority on the law of defamation: 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 or ridicule[2].

27. Applying the aforesaid definition, the single meaning of the email is, in my judgment, to the plaintiff’s discredit, lowers him in the estimation of others, causes him to be avoided and exposes him to hatred. I therefore rule that the email is defamatory of the plaintiff.

Did the defendant send the email on an occasion of qualified privilege?

28. In Cheng Albert v Tse Wai Chun Paul [2000] 4 HKC 1 at 17, Lord Nicholls of Birkenhead NPJ explained that the defence of qualified privilege is based on the law’s recognition that there are occasions when it is necessary for some recipients to receive frank and uninhibited communication of particular information from a particular source. Traditionally, these occasions include circumstances in which persons have a duty to perform or an interest to protect in providing the information.[3]

29. Another essential ingredient of an occasion of qualified privilege is the reciprocity between the person who makes a communication and the person to whom it is made: see Blakeney-Williams v Cathy Pacific Airways Ltd [2011] 1 HKLRD 901, at para.127.

30. The defendant and the recipients of the email were all incoming managers of Tang Sam U Tong. The defendant sent out the email because Tang Mei Wah, a fellow manager, claimed that he had been verbally threatened by the plaintiff.

31. The defendant was certainly under a duty to inform the other managers of the news and discuss how to deal with it. Thethree managers likewise had the duty to receive emails and discuss with the other managers how to deal with the matter.

32. Mr Chain, Counsel for the plaintiff, submits that as the defendant did not send the email to each and every manager of Tang Sam U Tong, the occasion did not become one of qualified privilege even if all the recipients were managers.

33. As I have pointed out, the defendant had the duty to inform the other managers of the news. The news could be communicated by different means. In the present case, on the evidence of Tang Mei Wah, one of the managers Tang Yan Chiu (transliteration) was not an email user and only saw a photocopy of the email after the email had been sent. It follows from this that how a communication is made has to depend on the actual circumstances. The nature of an occasion of qualified privilege should not change on account of different modes of communication.

34. Further, in my view, the key to determining whether an occasion is one of qualified privilege is whether the person who made the communication was under a duty to make it and whether the person who received the communication was under a duty to receive it. In the present case, even if the defendant did not tell Tang Yan Chiu the news, the nature of the occasion would remain unchanged.

35. In my judgment, when the defendant sent the email, he did so on an occasion of qualified privilege.

Can the defendant be protected by qualified privilege?

36. InHorrocks v Lowe [1975] AC 135, the leading case on qualified privilege, Lord Diplock pointed out that whether or not a defendant can be protected by the privilege depends on whether the defendant has abused the privileged occasion. The protection will be lost if the defendant is proved to have some improper motive when he made the defamatory communication. Proof of malice will be sufficient to prove that the defendant had improper motive. If it can be proved that the defendant did not believe what he communicated to be true, the inference can be drawn that there was malice on his part.[4]

37. Where there is no evidence other than the contents of the speech in question, the circumstances under which the speech was made and the defendant’s testimony in court, then the test for inferring whether the defendant had malice is: is there any evidence that the defendant did not believe what he said was true, in other words, did he know what he said was untrue or was he indifferent as to whether what he said was true or not?[5]

38. Lord Diplock stressed that, if a person made a speech in the absence of adequate inquiry or sufficient evidence so that an irrational conclusion was hastily reached, but he still honestly believed that what he said was the truth, then this is not enough to constitute malice. The only kind of recklessness which destroys qualified privilege is indifference as to the truth or falsity of what was being said[6].

39. In the present case, based solely on what Tang Mei Wah relayed to him about what the plaintiff said, namely that he was in charge of the “fei ding” house construction project and that he warned him not to create trouble and to be careful, the defendant concluded not only that the plaintiff had committed a criminal offence but also that he was a triad member.

40. Most people consider triad members to be those who make money by illegal means. They form gangs to commit organized crimes andoften act in large groups to bully people they greatly outnumber.

41. The message the defendant obtained from Tang Mei Wah was that the plaintiff had said the abovementioned words to him when they met by chance. This was obviously not a premeditated act. The plaintiff was alone and did nothing to hurt Tang Mei Wah. I do not think that there was the slightest indication that the plaintiff’s conduct resembled that of triad members.

42. The defendant testified that he merely drew on common sense in inferring an assumption that there was triad participation. He admitted that he was used to speaking bitingly.

43. In my view, when he drafted the email, the defendant overshot the mark in his pursuit for biting language, paying no regard to the truth or otherwise of what he said. I do not believe that the defendant honestly believed in what he said.

44. In the email, the defendant suggested that the other managers should go to a police station to have the matter recorded, and also claimed that the matter involved triad members. The purpose of saying these was to request the District Lands Officer of Yuen Long to suspend processing the applications for constructing “fei ding” houses. Obviously, this purpose had nothing to do with the threat made to Tang Mei Wah and, as a consequent thereof, the need to go to a police station to have the matter recorded.This is sufficient to show that there was improper motive on the part of the defendant when he made the statements in question.

45. For the above reasons, I hold that the defendant had lost the protection of qualified privilege because there was malice and improper motive on his part when he made the statements in question.

Quantum of damages to be awarded to the plaintiff

46. Mr Chain of Counsel made no submissions on the quantum of damages, although he indicated that the plaintiff should be awarded substantiverather than nominal damages.

47. In Oriental Daily Publisher Ltd & Anor v Ming Pao Holdings Ltd & Ors (No 2) [2013] 3 HKC 457, Ribeiro PJ pointed out that an award of general damages in libel has to meet 3 objectives: to compensate the victim for the damage done to his reputation; to vindicate his good name; and to take account of the distress, hurt and humiliation which the defamatory publication has caused[7].

48. The important factors that the court has to consider in assessing damages include the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is. Another important factor is the extent of publication: a libel published to more than onemillion readers causesfar greater damage than a libel published to a handful of people[8].

49. The email in question alleged that the plaintiff had threatened villagers and committed a criminal offence and was a triad member. It no doubt injured the character of the plaintiff as a Village Chief. However, it must not be overlooked that the email was sent to 3 villagers only, which means that the harm and distress the plaintiff suffered was mild. The email in reply from Tang Chi Wing to the defendant shows that he did not share the defendant’s views. Tang Mei Fuk’s act of forwarding the email to the plaintiffindicates that he did not agree with the defendant’s suggestion either. It follows that the damage caused by the email to the plaintiff was negligible.

50. In Christian A Bullen v Oliva F Ibarra, DCCJ 3008/2007(10.2.2009,unreported), the defendant uttered to a student of the plaintiff remarks defamatory of the plaintiff, and the court, not accepting that the plaintiff suffered actual loss as a result, awarded no more than nominal damages of $1.

51. In Lee Man Kin v Wang Mei Chun & others, CA 2876/2003 (19.8.2005, unreported), the defendant defamed the plaintiff at a property owners’ meeting attended by 25 persons. The court, taking into account that the defendant was provoked by the plaintiff and that only a few people were present, ordered the defendant to pay damages of $4,000 to the plaintiff.

52. In Au Yee Ming Ivan v Ng Fei Tip,DCCJ 4595/2008 (25.8.2010, unreported),the defendant defamed the plaintiff at a meeting of incorporated owners. In view of the fact that the damage done to the plaintiff was not serious but the defamatory remarks were made in the presence of a large group of people, the court ordered the defendant to pay the plaintiff damages of $15,000.

53. In the present case, the award of damages I make should reflect the actual damage done to the plaintiff by the email, but such damage was extremely minor. I also take into account the fact that the defendant has all along refused to tender an apology to the plaintiff as requested by him.

54. Having considered the aforesaid factors and the relevant authorities, I order the defendant to pay to the plaintiff damages of $2,000.

Interest

55. Interest is payable by the defendant thereon from 26 December 2012 at judgment rate until the judgment sum is fully paid.

Costs

56. Costs follow the event. I make an order nisithat the defendant shall pay to the plaintiff costs of this action, including the costs reserved. I grant counsel’s certificate. The order nisishall become absolute unless either party applies for variation within 14 days from the date of this judgment.

57. Costs are to be taxed if not agreed.