WOO TAK YAN v. LAM SIK CHUEN

DCCJ 5381/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION No. 5381 OF 2009

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BETWEEN

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JUDGMENT

Background

1.  This is a defamation suit between two members of a management committee of an incorporated owners.

2.  Kai Tak Garden, situate at 121 Choi Hung Road, Kowloon (“Kai Tak Garden”), was first developed by the Housing Society in 1999. It is a residential estate consisting of five blocks developed in two phrases. 

3.  On 17^th January 2009, the Incorporated Owners of Kai Tak Garden (“IO”) was set up. A management committee consisting of 10 members (“MC”) was elected on that day. The Plaintiff (“Woo”) was elected as the treasurer and the Defendant (“Lam”) as a member of the MC. Besides, Madam Mak Kam Yee (“Mak”), Mr. Lui Muk Shing (“Lui”) and Mr. So Chiu Chow (“So”) were respectively elected as the chairlady, the secretary and a member of the MC. The Housing Society remained as the manager of Kai Tak Garden.

4.  The incorporation certificate of the IO was formally issued by the government on 26^th February 2009.

5.  Woo, a government servant with the Environmental Protection Department, is the owner of Flat H, 31^st Floor, Block 3 of Kai Tak Garden since 2000. He is also the Convener of the Supervising Housing Society Action Group (監察房協行動召集人). So far as the evidence can show, the Action Group has been in operation since at least 2003. Woo alleged that the Housing Society had wrongly calculated the management fees and overcharged the residents of Kai Tak Garden. He thus adopted a “protest approach” in paying management fees (in his own words: “我用抗爭方式去交管理費”). In effect, he did not pay management fees when the same fell due. He, on the other hand, pursued a claim against the Housing Society for refund of the wrongly calculated amount. It was said that the claim was settled by way of the Housing Society’s repaying certain amount of the alleged overcharged sum.

6.  There is also evidence before me showing that the Housing Society had commenced a claim against Woo for outstanding management fees incurred between 2005 and 2009 in the Small Claims Tribunal. The small claims case was later transferred to the Lands Tribunal (LDBM 251/2009) [1]. Judgment was already given under which Woo was ordered to pay, after trial, all outstanding management fees plus interest in the sum of $34,608.19.[2]

7.  Lam is a retired factory operator at the age of about 70.  He has been living at Flat E, 13^th Floor, Block 5 of Kai Tak Garden since October 2007.

8.  In March 2009, it came to the notice of Mak (the chairlady) that Woo was in arrears of management fees for a number of years. The matter was brought up for discussion, directly or indirectly, in such subsequent MC meetings as 30^th March 2009 and 24^th April 2009.

9.  On the other hand, on 31^st July 2009, the Commissioner of the Fire Services Department issued a Fire Notice to the IO requiring the IO to remove, within 24 hours, the miscellaneous items placed at the rooftop of Block 3 of Kai Tak Garden which had caused fire hazard; otherwise, a daily fine of $10,000 might be imposed. Woo did not dispute that the items on the rooftop actually belonged to him. It was said that the Fire Services Department had tried 7 times to visit the unit [that owned the items] but in vain[3].  As a result, the IO had to arrange for a cleaner to remove Woo’s items from the rooftop on 31^st July 2009 and stored his items elsewhere to await his collection. From the evidence available to me, Woo has not collected his items up to 6^th January 2010, despite various reminder letters from the Housing Society[4].

10.  On 8^th September 2009, a document entitled “no-confidence motion” (不信任動議) in respect of Woo and So (“the Motion”) was signed by 8 members of the MC (save and except Woo and So as they were not present) in an internal meeting held on 8^th September 2009 (“Internal Meeting”). The Motion was issued in the name of the IO. On the same day, it was displayed at the common area of the lobby of and distributed to the residents of Kai Tak Garden.

11.  On 16^th October 2009 during the adjourned 5^th MC meeting, the Motion was tabled for voting. Woo was present but he refused to be counted as a quorum of the meeting. He chose to be treated as a sit-in resident of Kai Tak Garden. The Motion was passed unanimously during the meeting. It should be noted that Lam and So were absent in this meeting.

12.  After the Motion was passed, So settled all outstanding management fees and thus remains up to the date(s) of trial an MC member. On the other hand, by the date(s) of the trial, Woo was already removed from the post of treasurer, as the management fees payable by him was still in arrears.

The Motion

13.  By this action, Woo alleges that defamatory words are contained in the Motion. However, instead of suing the IO, he chose to sue Lam in his capacity as a member of the MC. He seeks, inter alias, damages in libel, exemplary and aggravated damages in the total sum of $150,000; and an apology from Lam.

14.  Mr. Chung, Counsel for Woo, confirms at the outset of the trial that Woo would not be seeking an injunction against Lam any more.

15.  The Motion in its original Chinese together with its English translation (Ms. Wu, Counsel for Lam, has helpfully confirmed that she will not take issue on the English translation) is set out in full text in the Amended Statement of Claim.

16.  For the purpose of this Judgment, the Motion (only the parts referring to Woo) is repeated below (the alleged defamatory parts are in italics):

“啟德花園(彩虹道)業主立案法團

啟德花園各業戶：

不信任動議

本屋苑法團自2009年2月26日成立至今，大部份委員不遺餘力，積極參與及監察屋苑管理事務，惟本會將於2009年9月10日的第五次管委會會議上在非常沉重、迫不得已的情況下對管委會司庫胡德仁先生及委員蘇肖疇先生議決作出不信任動議。原因如下：-

司庫胡德仁先生

1. 欠交40個月管理費—胡德仁先生(現任司庫)

(1) 胡司庫自2005年12月起，共欠港幣$31,740.19(共約44個月)。

(2) 案件現在土地審栽處審理中。

(3) 胡司庫在會議中曾向律師，其他委員及房協管理層面前先後確認已繳交管理費，事實上沒有，公然說謊。

2. 擅用屋邨公共地方—引致人身生命安全問題

(1) 胡司庫於第3座天台樓層之公共地方擺放私人物件。

(2) 經房協多次書面警告，仍置之不理。

(3) 消防處處長於本年7月31日向本會發出「消除火警危險通知書」。

(4) 囑令本會必須於24小時內清理有關物品。

(5) 不顧各住戶生命財產，還無理、無法、不合情理，聲稱向有關人仕索償港幣一仟萬。那有人放一仟萬私人財產在公共地方。

(6) 其自私之行為極可能危害各住戶人身生命安全。

3. 未有履行司庫職務(不接收有關文件)

本會於本年5月12日致函胡司庫及後6月29日管委會會議上向胡司庫交收有關文件，惟遭胡司庫拒絕。故此，胡司庫至今仍未有接收有關文件。

4. 派發宣傳單張

胡司庫曾於本年8月9日凌晨時份以法團名義於各座地下大堂信箱及樓層派發宣傳單張。惟本會從未有此安排，亦對有關單張內容一概不知。”

17.  It is necessary to point out at this stage that of all four paragraphs in the Motion, Woo complained about §§1, 3 and 4 only. He did not make any allegation that §2 in relation to “unauthorized use of common area of the estate – causing life safety problem” was defamatory.

The Pleadings

18.  Woo pleaded that the Motion contained defamatory words and set out in §4(2) of the Amended Statement of Claim the particulars of the alleged defamatory words (collectively called the “Words”). For convenience, I shall divide the alleged defamatory words into three categories. That is the also the approach taken by Counsel in this trial as well as in their closing submission.

Category (1)

“胡司庫在會議中曾向律師，其他委員及房協管理層面前先後確認已繳交管理費，事實上沒有，公然說謊。”

[English Translation: “During the meeting, Treasurer Woo confirmed with lawyer, other members of the Committee and the management of the Housing Society that management fee had been paid for, in fact there was none, tells a lie openly”]

Category (2)

“未有履行司庫職務 (不接收有關文件)”

[English Translation: “Had not fulfilled the work as the Treasurer (refused to accept the relevant documents)”]

“本會於本年5月12日致函胡司庫及後6月29日管委會會議上向胡司庫交收有關文件，惟遭胡司庫拒絕。故此，胡司庫至今仍未有接收有關文件。”

[English Translation: “This Committee had sent a letter on 12^th May this year to Treasurer Woo and subsequently at a Committee meeting on 29^th June served the relevant documents to Treasurer Woo, however, it was refused by Treasurer Woo. Therefore, Treasurer Woo had not yet received the relevant documents up to now”]

Category (3)

“胡司庫曾於本年8月9日凌晨時份以法團名義於各座地下大堂信箱及樓層派發宣傳單張。惟本會從未有此安排，亦對有關單張內容一慨不知。”

[English Translation: “Treasurer Woo had distributed promotion pamphlets under the name of the IO at the floors and the mail boxes located at the lobby of all blocks on 9^th August this year. But the Committee had never made such arrangement, and also did not aware the content of the pamphlets at all”]

19.  According to §5 of the Amended Statement of Claim, the Words, in their ordinary and natural meanings, meant and were understood to mean that:

(1) Woo did misrepresent that he had paid the concerned management fees and in fact he had not so that he is deceitful and untruthful.

(2) Woo being a member of the MC did refuse to receive the relevant documents in relation to his position as treasurer and thereby failing to discharge and/or breaching his duty as treasurer.

(3) Woo is an irresponsible person.

(4) Woo distributed promotion pamphlets under the name of the IO without its knowledge and approval and thereby insinuating that he was abusing his power as a member of the MC.

(5) Woo is dishonest, not trustworthy and of poor integrity.

20.  The Amended Statement of Claim at §6 pleaded that the Words were calculated to disparage Woo in his role as a treasurer of the IO and as a resident of Kai Tak Garden.

21.  The Amended Statement of Claim at §8 pleaded that Lam published and circulated the statements in dissemination maliciously knowing the same to be untrue and/or being reckless as to their truth or falsity and that Lam has deeply eroded Woo’s reputation as an honest and competent member and treasurer in the MC and among the residents in Kai Tak Garden.

22.  In his Amended Defence, Lam contended that he was not the proper defendant to be sued. The proper defendant should be the IO in whose name the Motion was issued. Lam further denied that the Words were defamatory; and even if they were (which is denied), he relied on the specific defences, namely (1) justification, (2) qualified privilege and (3) section 29A of the Building Management Ordinance (“BMO”), Cap. 334.

23.  By way of Re-Amended Reply, Woo replied, among other things, that Lam was the proper defendant because he was either (1) the writer and/or author of the Motion, or (2) had taken part to issue and cause the issuance of the Motion. Further, Woo averred that the Motion was not published in good faith and in reasonable manner because it was published before it was approved in a formal MC meeting. The Motion, on the other hand, was published right after an alleged assault incident on 6^th September 2009 (“alleged assault”) in which Woo alleged that Lam had assaulted him.

Agreed Issues in Dispute

24.  Pursuant to the Order of the Master made on 9^th June 2011, the parties have agreed on a Statement of Issue in Dispute. Accordingly, the agreed core issues for determination in this trial are:

(1) Whether Lam or the IO was the proper defendant to be sued in this action when the Motion, allegedly defamatory, was passed as a resolution of the MC of the IO at the meeting on 16^th October 2009.

(2) Whether the words contained in the Motion as defamatory meanings of which the article was capable of bearing: (a) Woo was telling lie about whether he has paid management fees, (b) Woo was in breach of his fiduciary duty as a treasurer of the IO and (c) Woo, without permission of the IO, circulated pamphlets purportedly in the name of the IO?

(3) If the above is yes:

(a) Whether the defence of justification is established?

(b) Whether the defence of qualified privilege is established?

(4) If the answer to Issue (2)(b) is yes, is the defence of qualified privilege nevertheless defeated by malice?

(5) Whether Lam as a member of the IO, is absolved of personal liability from a matter arising from his discharge of his duties in the MC as provided for under section 29A of the BMO?

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

25.  On these issues, Woo himself is the only witness on his side. The defence, on the other hand, has called Mak, Lui and a Law Fu (a security guard of Kai Tak Garden) as witnesses. Lam himself has also given evidence.

26.  I shall now go to deal with each of the above issues in turn.

Whether Lam or the IO was the Proper Defendant

27.  It is beyond dispute that the Motion was passed in the adjourned 5^th MC Meeting held on 16^th October 2009, and that it was issued and published in the name of the IO.

28.  Mr. Chung submits and relies on Wong Wing Ho v Chong Lai Wah & Another, HCA 1948/2005. In that case, two letters, allegedly containing defamatory words against the plaintiff, were issued in the name of the management committee of the incorporated owners of an industrial building. Only the chairlady (1^st defendant) and a member (2^nd defendant) of the management committee were sued. Chu J (as she then was) held that:

“There is also nothing to support the plaintiff’s case that the defendants published the 1^st and 2^nd Letters in their personal capacity. However, on the basis that the two letters were issued by the IO, it will be arguable, at least, that the defendants had “in their respective capacity as the chairlady and member of the 8^th Management Committee of the IO, taken part in authorizing the issue of the 1^st and 2^nd Letters to the plaintiff and other owners of the Building. It may therefore be arguable that the defendants caused or participated in the publication of the 1^st and 2^nd Letters.” (emphasis added)

29.  This view of Chu J (as she then was) was confirmed by Tang VP when this case went to appeal (CACV 212/2007). The learned Vice President has this to say:

“The 2^nd defendant submitted that the plaintiff should not have sued him personally, that the letters were duly authorized by the Incorporated Owners and issued pursuant to a resolution passed at the Management Committee Meeting. On this, the learned judge decided against the 2^nd defendant, and rightly so in my view. The plaintiff’s tactic may smack of victimization but the 2^nd defendant is probably entitled to an indemnity by the Incorporated Owners, although that is not a matter for decision today.” (emphasis added)

30.  I also note that Ms. Wu has not expanded much on this defence in her closing submission.

31.  That said, I agree with Mr. Chung that while Woo could have sued the IO in this action, he is entitled to sue only Lam in the capacity of a member of the MC. And based on the cases quoted above, I conclude that Lam can be a proper defendant to be sued in this action.

Whether the Words were Defamatory

Applicable Law

32.  The gist of the torts of libel and slander is the publication of the matters (usually words) conveying a defamatory imputation. The burden of proof lies on the plaintiff. In determining whether words are defamatory, there are two stages: (1) to decide what they mean; and (2) to decide whether the meaning is defamatory: Gatley on Libel and Slander, 11^th edition, §2.1.

33.  In determining the meaning of words in a libel action, the words are to be construed in their natural and ordinary meaning. Natural and ordinary meaning of the words refer to the meaning in which reasonable people of ordinary intelligence, with the ordinary person’s general knowledge and experience of worldly affairs, would be likely to understand them.  The question is what would the words conveyed to the mind of the ordinary, reasonable, fair‑minded reader?  See Gatley, §3.15.

34.  The notion of natural and ordinary meaning has two elements in it, namely, literal meaning and implication.  It is therefore immaterial whether the defamatory imputation is conveyed by words of direct assertion or by suggestion, for insinuation may be defamatory as an explicit statement: see Gatley, §3.16.

35.  To decide on whether the meaning of the words are defamatory, the learned authors of Gatley, at §1.8, state as follows:

“There is no wholly satisfactory definition of a defamatory imputation. Three formulae have been particularly influential: (1) would the imputation tend to ‘lower the plaintiff in the estimation of right-thinking members of society generally’? (2) would the imputation tend to cause others to shun or avoid the claimant? (3) would the words tend to expose the claimant to ‘hatred, contempt or ridicule’?”

What the Words Mean

36.  As a recap, Woo’s complaint is grouped into three categories (see §18 above). The natural and ordinary meaning of the Words is pleaded in §5 of the Amended Statement of Claim (see §19 above).

37.  It is not advanced by Lam in the Amended Defence, nor in Ms. Wu’s final submission that the Words complained of do not carry the natural and ordinary meaning ascribed by Woo in his pleadings.

38.  Accordingly, I find that all the imputations set out in §5 of the Amended Statement of Claim arose out of the Words on a natural and ordinary meaning.

Whether Meaning Defamatory

39.  Ms. Wu submits to me that the burden is on Woo to prove that the Words convey a defamatory imputation in their natural and ordinary meaning. She argues that the Words, in particular Categories (2) and (3), are not libellous words but description of facts only. Further, even if the Words were defamatory (which is denied), they are not actionable as defamatory because the Words might only damage Woo in the eyes of the residents of Kai Tak Garden but would not affect his reputation in the eyes of the average right-thinking man. She relies on Tolley v Fry [1930] 1 K.B. 467 at p. 479:

“Words are not defamatory unless they amount to an attack on a man’s reputation or character; they must tend to disparage him in the eyes of the average sensible citizen. Words are not actionable as defamatory, however much they may damage a man in the eyes of a section of the community, unless they also amount to disparagement of his reputation in the eyes of right thinking men generally. To write or say of a man something that will disparage him in the eyes of a particular section of the community, but will not affect his reputation in the eyes of the average right thinking man, is not actionable within the law of defamation.” (emphasis added)

40.  With respect, I am not persuaded by Ms. Wu’s submission. When considering if the Words were defamatory, the Court should consider the Words as a whole. The learned authors of Gatley have set out the general approach at §3.13 which is useful to repeat here:

“(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naive but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one ad meaning where other non-defamatory meanings are available. (3) over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any ‘bane and antidote’ taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, ‘can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation….’ (8) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.” (emphasis added)

41.  In my view, each category of the Words must be read as a whole. And if so, the Words, in their natural and ordinary meaning as pleaded in §5 of the Amended Statement of Claim, are capable of conveying a defamatory imputation which tend to lower Woo in the estimation of right-thinking members of the society generally. Accordingly, I find the Words are defamatory.

Analysis of Evidence

Demeanours of Witnesses

42.  Before I proceed to consider the various defences raised by Lam, I think it is more fruitful for me to first deal with the material facts of the case leading up to the Motion because much of the facts are disputed by the parties. In fact, Mr. Chung for Woo spends quite a substantial part of his written submission on the inaccuracy of the minutes of the MC meetings and the credibility of the defence witnesses (Mr. Chung says that their demeanours were evasive and antagonistic). A ruling on the material facts including the accuracy of the minutes of the MC meetings at this stage would be helpful for the determination of issues and is likely to avoid unnecessary repetition of evidence when I come to consider each defence in turn later in my Judgment.

43.  The factual disputes on the events leading up to the Motion and on accuracy of the various minutes of the MC meetings will be discussed in greater details further below in my Judgment. I would at this stage make the following observations on Mr. Chung’s submission in respect of the demeanours of defence witnesses.

44.  I should start by saying, with respect to Mr. Chung, that I do not agree that the demeanours of Lam, Mak and Lui were evasive, especially that of Lam and Mak.

45.  My overall impression on Lam’s evidence is that he is a witness worthy to be believed.  He impresses me as an honest and fair witness. For example, when he was cross-examined by Mr. Chung, he readily agreed that he had known as early as March 2009 that Woo had not paid a large sum of management fees, even though the answer would tend to support Woo’s evidence that MC members already had knowledge of his non-payment of management fees prior to the 2^nd MC Meeting. Lam did not try to hide his true feeling to Woo and gave him comment fairly. In cross-examination, Lam was asked if he had the feeling that Woo and So often argued irrationally (無理取鬧) and opposed the other MC members fiercely (針鋒相對) that caused hindrance in the IO’s intention to serve the residents of Kai Tak Garden. Instead of feigning a reply that he denied the proposition, Lam readily replied “a little bit’. He also honestly pointed out that Lui tried to give Woo the accounts documents after, not at, the 4^th MC Meeting, despite this might be advantageous to Woo’s allegation.

46.  Mak was not evasive either in her oral evidence. Rather, as I recall, she was told by Mr. Chung more than once not to volunteer information when she was not being asked to.

47.  Further, when analyzing evidence and credibility of any witness, this Court should not base only on demeanours, especially when there are already contemporaneous documents to rely on. And given it is the usual tactics during cross-examination to try to discredit a witness and put to a witness that he /she is telling lies, the witness, being usually layman to law and the court procedures, might take it as a personal critique. Moments of losing temper, if any, can easily be understood. In my view, I should not rely solely on demeanours in assessing credibility of any witness, be it of Woo’s or of Lam’s.

48.  I shall now go to the factual disputes. But before I do that, I would add that the parties have adduced evidence on various events which took place over a period of some nine months leading up to the Motion, some of which gave rise to factual disputes between them. I will not attempt to deal with each and every factual dispute that is irrelevant to the issues or of peripheral significance; suffice to say that I have considered all the evidence and submission from Counsel carefully before I arrive at the conclusion on the issues.

1st MC Meeting on 20/3/2009

49.  The 1^st meeting of the MC was held on 20^th March 2009 (“1^st MC Meeting”). Among other things that were discussed and resolved, two items are of relevance and I will set them out in the following.

50.  It was resolved in the 1^st MC Meeting that a letter would be issued to the Housing Society for hand-over of documents to take place before 30^th April 2009; the hand-over should cover all documents, accounts, movable and immovable properties[5]. The hand-over of documents is relevant to Category (2) of the defamatory words.

51.  It was also resolved that all documents including letters were not to be issued or posted unless with the approval of the chairman of the IO or the approval by the MC in its meeting; and those who issued or posted documents not in accordance with the above procedures shall be liable personally. The MC also reserved the right to claim for any loss/result caused by the breach of the rules set out above[6]. The distribution of pamphlets relate to Category (3) of the defamatory words.

52.  I note from the minutes of his meeting that when votes on the motion concerning distribution of pamphlets were cast, Woo was not present. He had left the meeting at 11.50 p.m. and returned just after this motion was voted on and passed. When he returned to the meeting, he commented on the incorrect procedure adopted in advancing amendment to the motion. But Mak replied by simply saying that the motion was already passed.

53.   In the circumstance, it is obvious to me that Woo knew that from then on, i.e. the date of this meeting, distribution of pamphlets was not allowed unless with the prior approval of the chairman of the IO or of the MC. Whether he personally agreed to this new arrangement or not is irrelevant.

Adjourned 1^st MC Meeting of 30/3/2009

54.  The 1^st MC Meeting was held until 2.10 am of the next day unfinished. It was thus adjourned to 30^th March 2009 (“Adjourned 1^st MC Meeting”).

55.  There is factual dispute between parties as to the accuracy of the minutes of this meeting, in particular agenda item 1.7 which was about the posting of payment records of management fees at each block.  Woo said that he had not claimed that he had paid management fees in the meeting[7]. He tendered an audio recording and the transcript thereof to support his allegation.

56.  I have listened and re-listened to the audio recording on item 1.7. I have also considered the transcript of the audio recording (the content of which is not disputed by Ms. Wu for Lam).  Both the recording and the transcript show that during the Adjourned 1^st MC Meeting, Mak read out a letter dated 26^th (the audio recording does not say which month) allegedly from a group of residents of Phase One, Kai Tak Garden. The letter said that Woo and So, being MC members had not paid management fees for a long time. Mak said that she had double-checked with the Housing Society which confirmed the same to be true. Mak expressed surprise to learn about this and commented about the need of a MC member setting up a good example to the other residents. She asked Woo to give an explanation.

57.  From what I have listened and re-listened, it seems clear to me that the conversation between Mak and Woo on this topic in theAdjourned 1^st MC Meeting was not a happy one. It can also be quite fairly said that Woo was not satisfied at all about Mak’s reading out of this letter on outstanding management fees (in which his name was mentioned) in a formal MC meeting without first consulting him. In the end, Woo refuted and said the following:

“主席 : 我依家講緊係管理費。我地依家睇倒係管理費，我地知道有個咁既資[料]出黎。

胡 ：我有D資料呢，可以證明呢主席你所講既係毫無根據。我再一次，麥主席，起呢個會上面去宣讀呢封信, 對我造成既個人傷害， 我都同管委會更多位委員講， 你地無起查清事實, 容許主席去做呢樣野, 管委會亦責無旁貸。不過問題係，唔好意思，在座咁多位，除左無露面既委員之外呢，你地個個都要對呢件事負責任。” (emphasis added)

58.  Reading the above lines of Woo as a whole, in particular “我有D資料呢，可以證明呢主席你所講既係毫無根據” and “你地無起查清事實, 容許主席去做呢樣野, 管委會亦責無旁貸”, I am of the view that Woo was trying, in effect, to refute Mak’s allegation of his non-payment of management fees on the ground that he had information to show that such an allegation was groundless and was not a fact. I cannot see how the minutes of the Adjourned 1^st MC Meeting which records “胡司庫更自稱已繳付管理費” is a falsity in the circumstance.

59.  Submission is also made by Mr. Chung on item 1.8 of the Adjourned 1^st MC Meeting[8]. He points out that item 1.8 stated that Woo indicated he would not receive remuneration of $1,200, and in fact both Lam and Mak said in their oral evidence that Woo was simply silent on this point. Mr. Chung further submits that Mak has in her oral evidence admitted that the content of the minutes did not reflect the actual situation[9].

60.  Again, I have checked the audio recording of the trial.  The recording shows that Mak never said in her evidence that the content of the minutes “did not reflect the actual situation”. Rather, she was saying that there were 4 office-bearers in the MC that could be entitled to remunerations. Three of them, namely vice chairman, Lui and she herself, expressly said that they would not receive remunerations; whereas Woo did not show any response. Since the majority was “against” receiving remunerations, Woo must be bounded by the majority view. That was why the minutes recorded that all four of them would not receive remunerations. She further added that the minutes were drafted by the Housing Society. It had never occurred to her that such wording would mean the otherwise.

61.  I accept Mak’s explanation to this item 1.8 of the minutes of the Adjourned 1^st MC Meeting.

62.  I find that the minutes of the Adjourned 1^st MC Meeting are true records of what happened on that day.

2^nd MC Meeting of 24/4/2009

63.  The 2^nd MC meeting was held on 24^th April 2009 (“2^nd MC Meeting”).  Apart from the members of the MC and the Housing Society (as the manager), a lawyer from Tse & Associates (“Lawyer Tse”) attended the meeting on pro bono basis. Tse & Associates later became the legal consultant of the IO. Some sit-in residents of Kai Tak Garden were also present.

64.  Agenda item 3.3 of the 2^nd MC Meeting relates to the authorization given to the management office to chase for unpaid management fees, including those outstanding management fees incurred prior to the issuance of the certificate of incorporation of the IO. This agenda item is relevant to Category (1) of the Words.

65.  The minutes on item 3.3 recorded that Lawyer Tse asked if any MC members then present in the meeting owed outstanding management fees; and if so, should not vote in fear of possible conflict of interest. No one made any response to Lawyer Tse. Then, Lawyer Tse clarified with the Housing Society which units were still in arrears of management fees. Woo’s unit was read out as one of the units which still owed management fees. Lawyer Tse went on to ask again if any MC members present belonged to the units so read out. Again, no one made any response to Lawyer Tse. The MC members then proceeded to vote on this motion. All members, including Woo, voted in support of this motion.

66.  Woo challenged the accuracy of the minutes of this meeting, in particular this item 3.3. But I have carefully compared the content of the minutes of the 2^nd MC Meeting with the witness statement as well as the oral evidence of Woo. I cannot find there are any material discrepancies among them.

67.  That said, I am of the view that the minutes of the 2^nd MC Meeting, in particular item 3.3, are true and accurate records of what happened in the meeting.

68.  On the other hand, Mr. Chung has made submission on the discrepancies of evidence between Mak, Lui and Lam in respect of this meeting. He submits that Lui’s evidence differed from that of Lam and Mak in that (1) Lui said he did not have any knowledge of Woo’s failure to pay management fees at all material times including on 24^th April 2009 when the 2^nd MC Meeting was held, whereas Lam and Mak agreed that they knew as early as March 2009 that Woo was in arrears of management fees; (2) Lui said in the 2^nd MC Meeting, Lawyer Tse advised those who owed management fees to leave the meeting, whereas Lam and Mak said Lawyer Tse advised those who owed management fees not to vote.  In gist, Mr. Chung says that Lui’s evidence is not believable.

69.  I have listened to the relevant parts of the recording of the trial. The records show that Mr. Chung began his cross-examination on Lui by asking a few questions on the setting up of the IO and on what happened in the alleged assault on 6^th September 2009. Mr. Chung then proceeded to refer to the Motion and the allegation that Woo “openly tell a lie”. On this topic, Mr. Chung firstly asked Lui what he understood by “openly tell a lie”. In reply, Lui explained what Lawyer Tse had advised in the meeting and then said that the Housing Society had checked that Woo owed management fees for a number of years. Then, Mr. Chung asked if Lui all along knew that Woo owed management fees. To that, Lui replied: “初初我哋唔知喎,我哋初初選嗰陣時唔知佢無交管理費。” Finally, Mr. Chung asked if Lui knew on 24^th April 2009 that Woo was in arrears of management fees. Lui, surprisingly, said he did not know.[10]

70.  There seems to be a discrepancy among the evidence of the defence witnesses as submitted by Mr. Chung. But on a closer analysis, Lui was not denying that he knew about the non-payment of management fees of Woo; he said he did not know about this at the beginning when they ran for the IO election. Given Lui’s age (he is 67 years old now) and the lapse in time (it was more than 2.5 years ago), it is likely that he might not be able to grasp the date of 24^th April 2009 immediately when he was asked about it and put it at once in the correct time frame of the chronology of events. Unfortunately, this part of his evidence was not clarified in the re-examination.  Be that as it may, this little blemish is not serious enough to destroy Lui’s credibility.

71.  As to Mr. Chung’s submission on the different terminology given by the defence witnesses in their oral evidence, I have checked the recording of the trial. Both Lam and Mak used the term “避席” in their evidence. Lui used more than one terms to describe what Lawyer Tse said: “離場” and “行開避一避”. Frankly, I personally cannot see a big difference among the meanings of these terms. Even if there was difference, I would think that given the lapse of time and given the relatively old age of Lui as well as Lam, one would not expect them to be able to recall what Lawyer Tse had said verbatim.

72.   On the whole, I find Lui, as well as Lam and Mak, an honest witness.

Hand-over on 30/4/2009& Letter of 12/5/2009

73.  To follow up on the hand-over of documents from the Housing Society to the IO, Mak in the name of the MC issued a letter on 16^th April 2009 to the Housing Society (“16/4/2009 Letter”). In this letter, Mak set out a list of documents, the original of which should be produced by the Housing Society on 30^th April 2009 for the purpose of hand-over (“30/4/2009 Hand-over”).  The documents included those which must be relevant to Woo’s carrying out of his duty as the treasurer of the IO, such as management fund, management fees information, audit accounts, monthly revenue and expenditure statements.

74.  Mak said that the 16/4/2009 Letter was also copied to each member of the MC and posted up at the lobby.

75.  Mak also stated in her witness statement that the Housing Society and she herself had tried, a number of times, to call Woo to inform him of the time of the 30/4/2009 Hand-over, but it was in vain. It was because calls to Woo’s home telephone was never picked up and his mobile number was never disclosed to the MC or the Housing Society. As a result, Woo was absent in the 30/4/2009 Hand-over.

76.  Since Woo could not be contacted by phone, she said that she had to write him a letter dated 12^th May 2009 (“12/5/2009 Letter”) asking him to contact her soonest possible for passing over of relevant accounts documents to him. Mak said that Woo showed no response.

77.  It is Woo’s evidence that he did not attend the 30/4/2009 Hand-over mainly because (1) no one had ever told him, orally or in writing, at what hours the hand-over would take place; (2) the hand-over should have been done in a formal meeting, and 30^th April 2009 was not a formal meeting; (3) the MC and Housing Society did not reply to his letter dated 17^th April 2009 written in response to Mak’s letter dated 16^th April 2009.

78.  Further, Woo said that he had not received the 12/5/2009 Letter from Mak at all.

79.  After considering all evidence, I am not hesitant to reject Woo’s evidence due to the following reasons.

80.  It was pleaded in the Re-Amended Reply at §11 that the 30/4/2009 Letter did not address to Woo and it had mentioned nothing about the treasurer. This allegation totally disregarded the fact that the 30/4/2009 Letter was in fact copied to all MC members including Woo.  The content therein strongly indicated that follow-up actions by all MC members including Woo on the hand-over of documents were required.

81.  At §12 of the Re-Amended Reply, Woo pleaded that he did not receive the 30/4/2009 Letter. This starkly contradicts with his oral evidence that he did not dispute he had received the 30/4/2009 Letter. The discrepancy was never explained.

82.  It is true that the time at which the hand-over of documents would take place was not eminent from the 30/4/2009 Letter. But both Lam and Mak said in their evidence (which I find to be true) that the MC members were informed of the time orally.  And Mak said that she and the Housing Society did try to contact Woo but in vain (see §75 above). I think Mak was fair and honest to say this, for she could have conveniently feigned that she had successfully called and informed Woo of the time of the 30/4/2009 Hand-over. I believe in what Mak has told me.

83.  For the same reason, I believe in Mak that the 12/5/2009 Letter was sent to Woo, but Woo showed no response and did not contact Mak for hand-over of the accounts documents.

84.  To conclude this part, I find that Woo did receive the 16/4/2009 Letter. I find that both Mak and the Housing Society did try to call Woo at his home telephone number to inform him of the time of the hand-over, but in vain. I find that Woo, having received the 16/4/2009 Letter and having found that time of the hand-over was not mentioned in the letter, failed to contact any MC member or the Housing Society to enquire about the time. The fact that he did not do so shows it was more likely than not that he was not prepared to attend the hand-over even if he was informed of the time. Under the circumstances, I find that Woo chose to be absent in the 30/4/2009 Hand-over.

85.  I also find that the 12/5/2009 was sent to Woo, but he did not follow up with Mak to collect the accounts documents.

4^th MC Meeting of 29/6/2009

86.  The next MC meeting immediately after the 12/5/2009 Letter was the 4^th MC Meeting of 29^th June 2009. The minutes recorded that on the item of “any other business”, Lui tried to give the accounts documents to Woo at the meeting, but Woo opined that the documents should be given to him directly by the Housing Society during the meeting[11].

87.  Lui gave evidence that in this meeting, Mak had to leave early. But before she left, she asked Lui to grasp the opportunity of giving the accounts documents received by the IO during 30/4/2009 Hand-over to Woo. But when Lui tried to give the accounts documents to Woo, Woo just flipped through a few pages and then refused to take them. Lui said that although Mak had left the meeting by that time, all other MC members as well as the staff of the Housing Society were still around when he attempted to give the accounts documents to Woo. Thus, Lui did not regard the attempted hand-over of documents took place after the meeting.

88.  Woo did not dispute that he did not take the accounts documents from Lui on that day. He explained that it was because the formal meeting was over. He preferred to have formal hand-over at the meeting, not after the meeting.

89.  Lam and Mak, again in my view very fairly, agreed with Woo’s proposition that the documents were given to Woo after the meeting.

90.  From the oral evidence before me, it is beyond dispute that the attempted hand-over of accounts documents was made by Lui to Woo after Mak had left the meeting. If one was to take the view that a meeting was in subsistence only up to the point when the chairman was around, then this part of the minutes of the 4^th MC Meeting should be regarded as inaccurate. But for reasons which will become obvious below, I do not think such inaccuracy is directly relevant on the issues in this action.

Distribution of pamphlets on 10/8/2009

91.  Shortly after 12 midnight of 10^th August 2009, Woo went to Blocks 1 and 4 respectively to insert promotional pamphlets prepared by him into the letter boxes of the residents. A physical dispute took place between Woo and the security guard of Block 4 (called Tang Shing Yau) [12] and police was called to attend the scene.

92.  There is factual dispute as to what Woo said when he was stopped at Block 4 from distributing promotional pamphlets.

93.  The defence relied on the evidence of Law Fu (“Law”), another security guard present at Block 4 at the material time. Woo also confirmed in his oral evidence that Law was present. Law said that he heard Woo saying to Tang Shing Yau and to the police (when the police arrived) that he was a MC member and so why he could not distribute pamphlets. In cross-examination, Law agreed that he did not hear Woo say that he distributed pamphlets in the name of the IO.

94.  Woo said that when he was trying to distribute pamphlets prepared by him and not in the name of the IO into the letter boxes, Tang Shing Yau stopped him by putting both arms around Woo. He denied ever identifying himself as an IO member or MC member to any security guards.

95.  Having considering all evidence, I would prefer the evidence of Law than that of Woo, because in my view Law gave his evidence fairly without exaggeration. He was ready to agree that Woo never said he distributed pamphlets in the name of the IO, even if such evidence might be to the advantage of Woo. I have no hesitation to accept his evidence.  I refuse to accept Woo’s bare denial on this point.

96.  I find as facts that at the material time when Woo was stopped from inserting promotional pamphlets into the letter boxes at Block 4, Woo did utter words to the effect that he was a MC member and so why he could not distribute pamphlets.

The alleged assault of 6/9/2009

97.  Then came the incident on 6^th September 2009. Due to reason(s) unknown to this Court, Woo tried to take video on the MC member(s) on 6^th September 2009, which resulted in some form of physical contact between Woo and Lam.

98.  Woo said that he was assaulted by Lam in the alleged assault. It was his case that due to the alleged assault, Lam published or caused to publish the Motion to revenge or play-back. I will discuss more on this topic later below in my Judgment.

99.  But before I leave this event, I would like to say a few words on Mr. Chung submission that Mak and Lui were not telling the truth when they was asked about what happened in the alleged assault. Both agreed in their evidence that they were present at the scene, but both said that they did not see any “physical dispute between Woo and Lam”.

100.  It is pertinent for me to point out that the main question put by Mr. Chung to Mak was in fact like this: whether she saw Lam hit or assaulted Woo amidst the messy situation. And the main question posed by Mr. Chung to Lui was: whether he saw Lam assaulted Woo. The question was not whether there was physical dispute between Woo and Lam. One must not overlook the fact that although police was called to the scene, no one was arrested for the alleged assault, nor was prosecution ever laid. In this sense, I cannot see how Mak and Lui’s evidence was not the truth. Their evidence clearly echoed with the result of police investigation.

Internal Meeting of 8^th September 2009

101.  By a notice of meeting dated 3^rd September 2009, it was said that the 5^th MC meeting would be held on 10^th September 2009. According to the notice, agenda item 4.8 was to resolve passing the Motion against Woo and So.

102.  On 4^th September 2009, the Housing Society (as manager) drafted the Motion (in draft form) and sent it to Lawyer Tse for comment.  On 7^th September 2009, Lawyer Tse gave his comment and amendments to the draft motion.

103.  The following date after Lawyer Tse gave his comment on the draft, the Motion in its amended form was discussed and then signed in the internal meeting (内部會議) of the MC on 8^th September 2009 (“Internal Meeting”).

104.  According to Mak, the purpose of internal meetings was for the MC members to discuss and express their views on the items to be decided in the MC meetings and to see if some kind of consensus (共識) could be reached before a formal MC meeting. This was to reduce the time spent on formal MC meetings, because experience of the 1^st MC Meeting showed that without prior internal meeting, a formal MC meeting could last until very late at night. Many MC members got their work or family to take care of and could not spend that much time in one meeting. Mak added that despite the discussion in the internal meetings, MC members were still free to cast their vote according to their own will in the formal MC meeting.

105.  It is Woo’s case that he was never informed by anyone of the Internal Meeting and thus his absence.

106.  Lam in his oral evidence (again very fairly) said that he did not know if Woo was informed of the meeting because it was not his duty to notify other MC members of meetings. But Lam added that Woo had, long before, expressly said that he would not attend any internal meetings, as he took the view that they were not formal MC meetings. Mak gave evidence to the effect that she had informed Woo and So of the date of the internal meeting; yet she could not force them to come.

107.  I believe in Lam and Mak’s evidence, as I have already concluded that they were honest witnesses.

108.  The Motion was finally passed in the Adjourned 5^th MC Meeting held on 16^th October 2009.

109.  I now turn to the defence of justification.

Justification

Applicable Law

110.  The defence of justification is available to a defendant if he can prove that the words complained of are true in substance and in fact.

111.  If the defendant is able to prove the main charge, or gist, of the libel is true, it is not necessary for him to justify each and every statement or comment which does not add to the sting of the charge: see Gatley at §11.8 and §11.9-11.10; Dr. Paul Ki Ping v Next Magazine Limited & Others, HCA 8071/1994; Lo Ki Chung v Hong Kong Nam Hoi (Sha Tau District) Association Ltd, HCA 39/2003.

112.  The same principle is codified under Section 26 of the Defamation Ordinance which stipulates:

“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.”

113.  I shall now turn to the three categories of defamatory words.

Category (1) -- During the meeting, Treasurer Woo confirmed with lawyer, other members of the Committee and the management of the Housing Society that management fee had been paid for, in fact there was none, tells a lie openly

114.  The gist of the defamation here is that Woo told a lie in the 2^nd MC Meeting of 24^th April 2009. This part of the defamatory words turns on whether Woo’s remaining silence to Lawyer Tse’s remarks/questions in the 2^nd MC Meeting amounted to a confirmation that he had paid management fees.

115.  I have already concluded that Lam, Mak and Lui are all truthful witnesses and thus I believe in what they told me about the 2^nd MC Meeting. I have also ruled that the minutes of the 2^nd MC Meeting are true records of what happened on that day.

116.  Woo never denied in his pleadings or in his oral evidence that he owed management fees as at the date of the 2^nd MC Meeting. Yet it is his evidence that there was no need to declare to Lawyer Tse or the other MC members that he had not paid management fees because the MC members all knew about that prior to this meeting. It was thus unnecessary for him to say expressly what was already clearly known to all. He further said that remaining silent to Lawyer Tse’s remarks meant admission (默認) of non-payment of management fees on his part, rather than admission of payment of the same. He also pointed out that as a member of the MC, he had every right to cast his vote on this topic and since he voted in support of the motion, there was no conflict of interest at all.

117.  I think it is fair for me to say that silence may or may not mean an admission (默認). That said, it follows that silence is likely to create ambiguity in meaning. Since silence is prone to ambiguity, what silence actually means in the communication between people is, in my view to a large extent, receptor-oriented, i.e. how a right-thinking receptor in the communication perceives the silence means. In this case, my conclusion is that a right-thinking man will take Woo’s silence to Lawyer Tse’s remarks/questions and then proceeded to vote on the motion to mean, more likely than not, that he was not among those who owed management fees, and that he did not belong to the units which were still in arrears of management fees.

118.  When faced with Lawyer Tse’s questions/remarks, Woo, by keeping silent and then proceeding to cast his vote on this motion (whether he voted in support or against the motion is irrelevant), knew or must have known that his conduct would be interpreted by those who attended the meeting as an admission that he was not in arrears of management fees.

119.  I would further add that I do not believe in Woo’s evidence that his silence equated to an admission of non-payment of management fees on his part, nor do I believe he readily meant to so convey to the others present in the meeting. Quite on the contrary, my overall impression is that Woo did not want to openly disclose, either by himself or by a third party, that he owed outstanding management fees at all material times. I base my view on the audio recording and transcript of the Adjourned 1^st MC Meeting (disclosed by Woo). I repeat my observation already set out in §§57 and 58 of my Judgment.

120.  Therefore, I conclude that Woo has by his conduct confirmed in the 2^nd MC Meeting that he was not in arrears of management fees and that he did not belong to those units which still owed management fees, but in fact the reverse is the truth.

121.  Whether there was any conflict of interest in Woo’s casting the vote and whether Woo voted in support of the motion or not are, in my Judgment, all irrelevant because these matters did not shed light on the issue, i.e. whether Woo had by conduct confirmed that he had settled management fees. 

122.  I would further add that whether the MC members had already known about Woo’s non-payment of management fees or not is also irrelevant, as it is undeniable that the 2^nd MC Meeting was also attended by other sit-in residents of Kai Tak Garden. The evidence did not show that they had prior knowledge on Woo’s non-payment of management fees.

123.  In conclusion, I find that the defence of justification has made out in relation to Category (1) of the Words.

Category (2) -- Had not fulfilled the work as the Treasurer (refused to accept the relevant documents). This Committee had sent a letter on 12^th May this year to Treasurer Woo and subsequently at a Committee meeting on 29^th June served the relevant documents to Treasurer Woo, however, it was refused by Treasurer Woo. Therefore, Treasurer Woo had not yet received the relevant documents up to now

124.  It is the defence case that the libel is true as a matter of substance and of fact because (1) Woo did not attend the 30/4/2009 Hand-over; (2) Woo did not respond to the 12/5/2009 Letter; and (3) Woo refused to accept taking over the accounts documents at the 4^th MC Meeting of 29^th June 2009.

125.  I have already ruled that it was Woo who chose not to attend the 30/4/2009 Hand-over and not to respond to the 12/5/2009 to follow up on the hand-over of accounts documents from the MC to him (see §§84 and 85 above).

126.  I have also commented on the accuracy of the minutes of the 4^th MC Meeting which concerned the hand-over of accounts documents (see §90 above). I agree with Ms. Wu’s submission that the gist of libel in this Category (3) is Woo’s failure to discharge his duties as the treasurer by refusing to accept the relevant documents. Thus, there is no need for me to bother myself with each and every comment which is not the sting of the charge. That said, it becomes clear that whether the accounts documents were given to Woo at or after the 4^th MC Meeting is irrelevant to the gist of the libel.

127.  On discharge of his duty as the treasurer of the MC, I do not believe in Woo’s evidence. His oral evidence contradicts flatly with his witness statement and other documentary evidence. In the re-examination taken place on the 2^nd day of the trial, Woo said that a proper hand-over of documents should be done in a meeting whereby the Housing Society should serve the documents on the MC, not on him personally. This piece of evidence flatly contradicted with his witness statement where he claimed that service of the documents should be done by the Housing Society on him [13].

128.  Ms. Wu for Lam has cross-examined Woo on the hand-over of documents on 29^th June 2009. She queried why Woo, while admitting that the accounts documents were so vital in the carrying out of his duty as the treasurer of the IO,  did not take the accounts documents from the IO firstand then wrote to clarify or follow-up on any outstanding matters that he could identify. The following is the relevant parts of the evidence:

“問: 點解你唔去諗吓或者考慮吓，去番IO睇一睇，睇清楚，關乎你作為司庫嗰啲會計文件之後先寫呢啲信呢﹖你有冇曾經諗過呢樣嘢先，首先﹖

答: 呀烏大狀，我相信我一路啲證供就係話，我係不得其門，敲極門都冇人應門，唔係我唔去做任何嘢。係人地唔回應嘅，點解個burden會係我度呢﹖哪，我就覺得我已經提出一啲訴求叻，唔好講話係投訴啦，係唔係先。咁我都請咗佢地跟進啦，請佢地去補救啦。咁我都好奇怪啦，點解你問嚟問去，唔係問緊房協或者係管委會唔去作出跟進呢﹖佢地有收到信嘅，佢地知道呢個委員係有呢方面的訴求嘅，點解對方唔作回應呢﹖”

129.  From the above records, it seems clear to me that Woo was trying to paint a picture that he was diligent and keen to obtain the accounts documents; it was just that his request was not entertained by the MC or the Housing Society. However, this is not the truth of the matter.  The evidence before me clearly shows that the MC, via Lui, did try to hand over the accounts documents to Woo on 29^th June 2009 (I say again that whether hand-over was at or after the MC meeting is irrelevant). It was Woo who refused to receive the accounts documents from Lui. If Woo had the slightest intention to perform his duty as the treasurer of the IO, he would have realized that it was already two months after the 30/4/2009 Hand-over and no further delay should there be for him to take over the accounts documents. If he had the slightest intention to perform his duty as the treasurer of the IO, he could have taken the accounts documents and then followed up on any outstanding or insufficient items when needed.

130.  Woo’s reason for refusal to take the accounts documents is not accepted by me, either. In my view, he did not have any right to demand hand-over between he himself and the Housing Society.

131.  I find that the defence of justification in respect of Category (2) has been made out.

Category (3) -- Treasurer Woo had distributed promotion pamphlets under the name of the IO at the floors and the mail boxes located at the lobby of all blocks on 9^th August this year. But the Committee had never made such arrangement, and also did not aware the content of the pamphlets at all

132.  The sting of libel here is whether Woo abused his power as a MC member.

133.  I have already ruled that I believed in Law’s evidence that Woo did identify himself as a MC member when he was stopped from distributing promotional pamphlets on 10^th August 2009.

134.  It cannot be disputed that Woo knew about the restriction on distribution of pamphlets because a motion on the topic was passed in the 1^st MC Meeting on 20^th March 2009 (see §§52 and 53 of my Judgment). By claiming he was a MC member when found distributing promotional pamphlets on 10^th August 2009, Woo effectively was trying to abuse his capacity as a MC member to gain a freeway.

135.  Since the sting of the libel is the abuse of power by Woo, the defence does not have to prove that Woo had uttered the exact words “in the name of the IO” when distributing the promotional leaflets in order to justify Category (3) of the Words.  

136.  That said, I will conclude that the defence of justification has been made out for Category (3).

Defence of Qualified Privilege

Applicable Law

137.  There are circumstances in which, on grounds of public policy and convenience, a person may yet, without incurring liability for defamation, make statements about another which are defamatory and in fact untrue. These are cases of qualified privilege: Gatley, §14.1.

138.  A person is protected if the statement was fairly warranted by the occasion, i.e. within the scope of the purpose for which the law grants the privilege and so long as it is not shown that the statement was made with malice, i.e. with some indirect or improper motive or knowing it to be untrue, or with reckless indifference as to its truth: Gatley, §14.1.

139.  “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: Gatley,§14.6.

140.  In Adam v Ward [1917] AC 309, at 334, Lord Atkinson said:

“It was not disputed, in this case on either side, that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.” (emphasis added)

141.  As regards the corresponding interest, Higgins J. in Howe v. Lees (1910) 11 C.L.R. 361 said at 398:

“The truth seems to be that the word ‘interest’, as used in the cases, is not used in any technical sense. It is used in the broadest popular sense, as when we say that a man is ‘interested’ in knowing a fact – not interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news…” (emphasis added)

142.  Whether there is such a duty is a question of law.  It is not sufficient that the defendant honestly believed that it was his duty to speak.  Similarly, in deciding whether the recipient had a legitimate interest in the matter, it is not sufficient that the defendant believed that to be the case.  If, in fact, the recipient did not have any, there is no privileged occasion: Gatley, §§14.15 & 14.17.

143.  The two particular instances in which it was held that there was a duty:

(1) Those who are appointed or elected to serve on a public body have a duty to express themselves freely and to say what they believe to be true at meetings of that body, and thus what they say in pursuance of that duty will be privileged: see Gatley, §14.37.

(2) A duty to give information may arise not from any public interest but merely from the interests of another, with whom the information has some close relationship, whether a family relationship, or one of trust and reliance, or friendship. If the information is sufficiently important there may be a duty to give information to someone with whom there is no previous relationship of such a kind, or even to a stranger. Factors that are likely to be considered by the court in this regard include the strength of the information which the informant believes himself to have, its relevance to the interests of the person to whom it is to be communicated, the damage which it may do to the reputation of the person to whom it relates and the extent to which the person to whom the information is communicated is likely to rely on the informant for the information: see Gatley, §14.37.

Discussion

144.  Mr. Chung submits to me, if I understand him correctly, that Lam published the Motion not for the purpose of protecting the interests of the residents of Kai Tak Garden or the IO on two grounds. First, when Woo cast his vote in relation to the motion concerning collection of outstanding management fees, he in fact voted for the motion. Thus, Woo was not causing any damage to Kai Tak Garden or the IO. Secondly, the Motion was published without due care to clarify the truthfulness of its content.

145.  Without the greatest respect to Mr. Chung, I fail to see how and why Lam cannot rely on the defence of qualified privilege subject to proof of malice.

146.  The Motion was issued by the MC to the residents of Kai Tak Garden. Lam was a member of the MC. Under section 18 of the BMO, the IO shall do all things reasonably necessary for the enforcement of the obligations contained in the DMC for the control, management and administration of Kai Tak Garden: see Building Management in Hong Kong, at pp. 216-217.  The MC, being the executive arm of the IO, acts for and on behalf of the IO under section 29of the BMO. It had a legal duty to publish the Motion because all the items mentioned therein related to the control, management and administration of Kai Tak Garden.

147.  For example, on recovery of outstanding management fees, the evidence of Mak and the audio recording produced by Woo showed that even before the Adjourned 1^st MC Meeting on 30^th March 2009, some owners had written to Mak expressing concern about Woo and So, as MC members, owed management fees. The issue of outstanding management fees had repeatedly appeared in the agenda of the meetings of the MC (including Adjourned 1^st Meeting on 30^th March 2009 at item 1.7; 2^nd MC Meeting on 24^th April 2009 at item 3.3; Adjourned 5^th MC Meeting on 16^th October 2009 at item 1.6). Similarly, the questions of handover of documents and distribution of pamphlets were agenda items which were brought up for discussion during various MC meetings before the Motion was conceived. 

148.  Further, Lam was at the material time elected by the owners of Kai Tak Garden to serve on the MC. The trust and confidence between Lam and the owners of Kai Tak Garden gave rise to his duty to give information to the owners of Kai Tak Garden. And the owners of Kai Tak Garden had a corresponding interest in the matter. In Khan v. O’Dea & Shroff, unreported, HCA 5850/1982, Hunter J (as he then was) ruled that by reason of being a member of a club or an association, a person has every interest in the matters of the club or the association.

149.  For the above reasons, I find that the Motion was published on an occasion of qualified privilege.

Whether Qualified Privilege Defeated by Malice

Applicable Law

150.  Both Mr. Chung and Ms. Wu quote me very useful paragraphs in the landmark case on qualified privilege and malice: Horrocks v Lowe [1975] AC 135. I will not venture to state the legal principles therein, for I can never do better than what Lord Diplock has done. I will simply reproduce the relevant paragraphs at p. 149 -151 as follows:

“So he is entitled to be protected by the privilege unless some otherdominant and improper motiveon his part is proved. 'Express malice' is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove. But to destroy the privilege, the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.

The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be proved that he did not believe that what he published was true this 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, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person.

Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, 'honest belief.' If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognize the cogency 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.

Even a positive belief in the truth of what is published on a privileged occasion - which is presumed unless the contrary is proved - may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled. There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant's dominant motive may have been to obtain some private advantage unconnected with the duty or the interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true.

Judges and juries should, however, be very slow to draw the inference that a defendant was so actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. The motives with which human beings act are mixed. They find it difficult to hate the sin but love the sinner. Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person’s conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that ‘express malice’ can properly be found.

…

The exception is where what is published incorporates defamatory matter that is not really necessary to the fulfillment of the particular duty or the protection of the particular interest upon which the privilege is founded. Logically it might be said that such irrelevant matter falls outside the privilege altogether. But if this were so it would involve application by the court of an objective test of relevance to every part of the defamatory matter published on the privileged occasion; whereas, as everyone knows, ordinary human beings vary in their ability to distinguish that which is logically relevant from that which is not and few, apart from lawyers, have had any training which qualifies them to do so. So the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory matter which upon logical analysis could be shown to be irrelevant to the fulfillment of the duty or the protection of the right upon which the privilege was founded. As Lord Dunedin pointed out in Adam v. Ward [1917] A.C. 309, 326- 327 the proper rule as respects irrelevant defamatory matter incorporated in a statement made on a privileged occasion is to treat it as one of the factors to be taken into consideration in deciding whether, in all the circumstances, an inference that the defendant was actuated by express malice can properly be drawn. As regards irrelevant matter the test is not whether it is logically relevant but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, though believing it to be true, realized that it had nothing to do with the particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive.” (emphasis added)

The Pleadings

151.  Ms. Wu submits that Woo is bound by his pleadings, i.e. §§16 and 17 in his Re-Amended Reply to Amended Defence. In §16, Woo pleaded that the Motion was endorsed by Lam with knowledge that it was untrue and defamatory. In §17, Woo pleaded that but for the physical assault on Woo by Lam on 6^th September 2009, the Motion would not have come to any existence.

152.  In reply, Mr. Chung says that on top of §§16 and 17 mentioned by Ms. Wu, Woo also relies on §§18 and 19 of the Re-Amended Reply to Amended Defence as well as §8(1) of the Amended Statement of Claim.

153.  After careful consideration of the pleadings and submission from both Counsel on the pleading point, I would attempt to summarize the particulars of the alleged malice into the three categories:

(1)Lam did not have honest belief in the truth of the defamatory Motion or was reckless as to whether it was true (See §8(1) of Amended Statement of Claim; §§16 and 18 of Re-Amended Reply to Amended Defence). For convenience, I will name this “lack of honest belief” argument ;

(2)Lam published the Motion with improper motive (See §17 of Re-Amended Reply to Amended Defence). For convenience, I will call this “improper motive” argument;

(3)The publication of the Motion was not necessary to the fulfillment of Lam’s duty or interest on which the privilege was based, for there was other proper procedure to remove Woo from office (See §19 of Re-Amended Reply to Amended Defence). For convenience, I will name this “unnecessary” argument.

Discussion

154.  I think it is fair for me to say that in his closing submission, Mr. Chung puts his emphasis on the “improper motive” argument[14]. He does not say much on the “lack of honest belief” argument[15] (he spends one paragraph only) and is totally silent on the “unnecessary” argument.

155.  I will simply say that I cannot see how the “unnecessary” argument can sustain given the findings set out above in my Judgment. And after all, the Motion was passed in a proper MC meeting held on 16^th October 2009.

156.  On the argument of “lack of honest belief”, Mr. Chung argues that Lam never made any attempt to clarify if the Words contained in the Motion were true or not; thus, he signed the Motion negligently which constituted malice on his part. I will repeat my analysis and ruling on the defence of justification. I further say that according to Lam, he had personal knowledge of the basic facts leading up to Categories (1) and (2) of the Words. In respect of Category (3) of the Words, though Lam did not have personal knowledge of the same, he was perfectly entitled to rely on the Housing Society’s (being the manager of the IO) report to the MC of what happened in the small hours of 10^th August 2009; and the fact that the Motion was read and advised on and amended by the legal consultant of the IO (i.e. Lawyer Tse and his legal firm). That said, I conclude that Woo failed on the “lack of honest belief” argument.

157.  I now turn to the “improper motive” argument. Mr. Chung is adamant in saying that malice on the part of Lam is obviously reflected by the timing of the meetings. Despite the notice of 3^rd September 2009 which announced that the passing of the Motion would be discussed in the MC meeting to be held on 10^th September 2009, an unnecessary Internal Meeting was held on 7^th September 2009 to the exclusion of Woo and So. Co-incidentally, the Internal Meeting was held just one day after the alleged assault. Mr. Chung concludes that due to the alleged assault, Lam used the Motion as a revenge or play-back to defame Woo. The Motion was used by Lam as an excuse to remove Woo from the post of treasurer.

158.  Mr. Chung further submits that Lam agreed during cross examination that the Internal Meeting was a closed-door exercise among the other 8 members of the MC as quoted “同意是閉門造車”. This evidence of Lam, Mr. Chung points out to me, is overwhelming in proving that there was malice on his part.

159.  Despite Mr. Chung has made a tempting argument, I am not persuaded by him that the sole and dominant purpose of Lam was to harm Woo or to vent his personal spite, if any,  towards Woo.

160.  To begin with, I have listened to the recordings of the trial. I would simply repeat below the relevant parts of the cross-examination as to show how the answer of “同意是閉門造車” came by:

“問:點解內務會議裡會冇胡德仁同埋阿蘇肖疇個名架﹖

答:嗱，我地就要做，即係不信任動議，但係佢係被不信任嘅人，咁點，佢唔會參加呀！

問:有冇俾通知胡德仁先生或者係蘇肖疇先生呀﹖開呢個會﹖

答:我地商量就係要做呢樣野……

問:我問你有冇通知，有就有，冇就冇﹖有冇﹖

答:呢樣野我就唔知，唔知佢地有冇通知，因為通知嘅，通知嗰個範疇唔係喺我到。

…..

問:你覺唔覺得如果阿胡先生同埋阿蘇先生唔喺到，講番佢地要講嘅嘢，你唔俾機會佢地解釋，會唔會一啲係，所謂你地嘅「閉門造車」呀﹖

答:會。”

161.  The last question posed by Mr. Chung on Lam is clearly a hypothetical one. The answer given by Lam is, in all respects, fair and honest.

162.  On the other hand, I take the view that if Lam really possessed a sole and dominant intention to harm Woo, common sense tells that Lam would not afford to miss the chance to vote for the Motion in the adjourned 5^th MC Meeting of 16^th October 2009. Yet the plain fact is: Lam was absent in the said meeting.

163.  On the pleadings, it was Woo’s pleaded case that Lam was the writer/author of the Motion[16]. The same allegation was repeated in his own witness statement, which was confirmed by him as truth in the Statement of Truth[17]. Yet, his oral evidence turned out to be: Lam did not participate in the drafting, but he took place in signing the Motion only. The discrepancies between the pleaded case and oral evidence as well as between the witness statement and oral evidence were never explained by Woo satisfactorily. It is thus clear that there is no evidence whatsoever before me to show that Lam was the engineer of the Motion. Quite on the contrary, it proves that Woo gave starkly inconsistent and unfounded allegations against Lam.

164.  Then, one should not lose sight of the fact that the idea of tabling the Motion against Woo took shape prior to the alleged assault of 6^th September 2009; and the draft of the Motion was prepared by the Housing Society on 4^th September 2009, which was also prior to the alleged assault.  It would be inherently implausible and flatly against common sense to say that Lam could foresee the happening of the alleged assault and thereby engineered the idea of tabling the Motion or the drafting of it on/before 4^th September 2009.

165.  I repeat again that I do believe in the evidence of Mak, Lui and Lam.

166.  In conclusion, I find that Woo has not proved malice on the part of Lam. Therefore, Lam’s defence of qualified privilege was not defeated by malice. This is a complete defence of Lam.

Defence of Section 29A of the BMO

167.  Having found that Lam succeeded in the defence of justification and qualified privilege, I shall be brief on the section 29A  of the BMO.

168.  Section 29A of the BMO reads as follows:

“(1) No member of a management committee, acting in good faith and in a reasonable manner, shall be personally liable for any act done or default made by or on behalf of the corporation –

(a) in the exercise or purported exercise of the powers conferred by this Ordinance on the corporation; or

(b) in the performance or purported performance of the duties imposed by this Ordinance on the corporation.

(2) The protection conferred by subsection (1) on a member of a management committee shall not in any way affect the liability of the corporation for that act or default”.

169.  Mr. Chung does not touch on this defence in his closing submission. Ms. Wu just writes briefly on this point.

170.  Due to my findings set out in the earlier parts of my Judgment, I would rule that Lam was acting in good faith and in a reasonable manner in discharge of his duties as a member of the MC at the material times. He should thus be absolved from any personal liability arising out of the Motion, if any.

Conclusion

171.  Given my above conclusion, there is no need for me to deal with the issue of quantum.

172.  Accordingly, this action is dismissed. I make a costs order nisi that Lam should have the costs of this action, with certificate to Counsel, to be taxed if not agreed. If there is no application to vary this costs order nisi, it will become absolute within 14 days from today.

173.  Lastly, I would like to thank Counsel on both sides for the helpful assistance rendered in this action.

[1] See letter dated 2/9/2009 from the Housing Society to the MC (p. 316 of trial bundle) and item 1.6 of the minutes of the adjourned 5^th MC meeting of 16/10/2009.

[2] See Judgment of Deputy Judge Wong dated 25/5/2011 in LDBM 251/2009.

[3] See the minutes of the 5^th MC Meeting dated 10^th September 2009.

[4] At least 3 letters were sent to Woo by the Housing Society urging him to collect his items.

[5] See item 2.3 of Section 2 on p. 8 of the minutes of the 1^st MC Meeting. The original text is: “ 向房協發出信件要求於2009年4月30日前進行交接，而交接項目包括一切文件、財務、動產及不動產資金。”

[6] See item 12 of Section 2.1 on p. 6 of the minutes of the 1^st MC Meeting. The original text is: “所有文件包括信件須經法團主席或與管委會會議上批准後方可發放或張貼。惟若未經上述程序而放或張貼的文件，發放者須負上個人責任。本會亦保留因違反上述訂明之規則而招致損失/結果之追究權利。” Note that “本會亦保留因違反上述訂明之規則而招致損失/結果之追究權利” was an addition to the original motion. The original motion (as amended) was passed in the same meeting.

[7] The minutes read: “胡司庫更自稱已繳付管理費。”

[8] Item 1.8 reads as follows: “就是項議程,和資格領取津貼的包括麥主席、黃慶還副主席、呂木成秘書及胡德仁司庫均表示不會領取$1,200的津貼。”

[9] See §14 of Mr. Chung’s closing submission.

[10] According to the minutes of the MC meeting on 30/3/2009 and the audio recording tendered by Woo of the same meeting, it is clear that the MC members knew about Woo’s non-payment of management fees since that meeting.

[11] The minutes read: “其他事項 主席表示早前收到管理處提交的交收文件,現於會上由呂木成秘書將有關管委會財務上的文件交予胡德仁司庫。惟胡德仁司庫認爲有關文件應由管理處轉交給他保存方為恰當。”

[12] Tang Shing Yau was not called to give evidence in the trial.

[13] See §16 of Woos’ witness statement.

[14] See §53-55 of Mr. Chung’s closing submission.

[15] See §56 of Mr. Chung’s closing submission.

[16] See §6 of the Re-Amended Reply to the Amended Defence.

[17] See §12 of Woo’s witness statement.