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

HCA 1852/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1852 OF 2003

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J U D G M E N T

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Introduction

1.  The 1^st plaintiff is a solicitor and the 2^nd plaintiff was a trainee solicitor.  They were (and still are) employed by Messrs Fung, Wong, Ng & Lam.  They bring this action alleging that they were defamed by the defendant.

2.  The letter (dated 14 May 2003) which allegedly contains the libel is a relatively short one (“the said letter”).  The relevant parts are set out below:-

“It happened to me yesterday apart [from] Mr [Wong who] … claimed as the ‘surveyor’, there had also [been] two unknown men said by the ‘surveyor’ that they were the ‘solicitors’ also entered into my premises without my permission despite myself and the management office demanding them to leave for the reason they were unable to provide any of their identity and proof of their profession.

I hereby strongly protest that it is totally beyond our previous agreement and now I would also very doubt of [sic] the truthfulness and correctness of the water seepage investigation report … ”.

3.  According to the statement of claim, the said letter was published to the following individuals:-

(a)    the owners of Flat C, 32^nd floor of a residential block in Tsuen Wan Centre (“the 32C flat”);

(b)    the Mr Wong referred to in the said letter (“Wong”), an expert engaged for the purpose of ascertaining the cause of water seepage to the 32C flat;

(c)    Mr Lee and/or Mr Choi of the management company of Tsuen Wan Centre (“the said manager”);

(d)    the plaintiffs’ employer;

(e)    by way of inference, people who have read the said letter when the same was delivered to Mr Lee and/or Mr Choi of the said manager.

4.  If ever liability can be established against the defendant, this is an action which fits the proverb “making a mountain out of a mole hill”.  However, for reasons set out below, I find that the plaintiffs have failed to establish liability.  This action is accordingly dismissed.

Background Facts

5.  Almost all the background facts are undisputed and can be summarised as follows.

6.  The defendant is the owner of Flat C, 33^rd floor, that is, the residential unit directly above the 32C flat (“the defendant’s flat”).  At the relevant time, the plaintiffs’ employer was instructed to act for the owners of the 32C flat.  Water seepage was found inside the 32C flat.  Suspecting the problem was caused by leakage from the defendant’s flat, an expert (who turned out to be Wong) was engaged to go to the defendant’s flat and find out if that was in fact the case.

7.  Arrangement for an inspection at the defendant’s flat was made.  On 13 May 2003, the date scheduled for inspection, the following individuals went to the defendant’s flat:-

(1)     the plaintiffs;

(2)     the sister of the owners of the 32C flat;

(3)     Wong;

(4)     Mr Lee and Mr Choi of the said manager.

When they arrived at the defendant’s flat, the defendant and a Mr Cheng were inside.  Mr Cheng was at that time the occupier of the defendant’s flat.

8.  The visiting party knocked on the main door of the defendant’s flat.  After the party was let in, the defendant asked for the identity of the visitors.  They were introduced to her.

9.  When the defendant became aware that the 1^st plaintiff was a solicitor, she asked for his name card.  The 1^st plaintiff refused to give her a name card.  She then asked him to leave and the 1^st plaintiff indicated he would.  In relation to the incident set out in this paragraph, the parties differ as to the precise identity of the speakers as well as the exact words used.  However, the 1^st plaintiff in effect agreed to the above summary both in his witness statement and when he testified.

10.  Despite the defendant’s request and the 1^st plaintiff’s indication, neither plaintiff left the defendant’s flat.  This is partly because, immediately after the above exchange between the defendant and the 1^st plaintiff, Wong indicated that the plaintiffs and he were in the same group.  The defendant did not expressly say anything further about the plaintiffs’ presence.

11.  The inspection was completed on the same day and the party left the defendant’s flat.  On the following day, the said letter was sent by the defendant to the individuals named therein, that is: the owners of the 32C flat, Wong, the said manager and the plaintiffs’ employer.

12.  The 1^st plaintiff also tape recorded the visit.  The defendant contends that certain parts of the relevant conversation have not been recorded whereas the plaintiffs contend otherwise.  Where it is necessary to do so, I will deal with this dispute under the next heading.

Findings of Fact

13.  Insofar as there may still be factual disputes and/or a need to make findings of fact, I find the following to be the facts.

14.  The plaintiffs, together with the sister of the owners of the 32C flat, Wong and Mr Lee and Mr Choi of the said manager, went to the defendant’s flat on 13 May 2003.  Very shortly after the plaintiffs (and the others) were allowed into the defendant’s flat, the defendant asked for their identity whereupon they informed the defendant they were solicitors acting for the owners of the 32C flat (it was not expressly mentioned in the tape recording that the plaintiffs were acting for the owner of 32C flat but, judging from the whole context, that must have been what they meant when they told the defendant they were solicitors).

15.  I note that the tape recording does not record any conversation concerning the identity of the 2^nd plaintiff, or that the defendant asked for proof of identity (especially name card) from him.  However, in view that the said letter specifically referred to “two unknown men”, the defendant must have known that the inspection was attended by the plaintiffs (together with the other people referred to above).  It is more probable she would have required the 2^nd plaintiff to identify himself (as she did with regard to the 1^st plaintiff).  Further, Mr Cheng (the occupier of the defendant’s flat) and Mr Choi of the said manager testified that she had done so.

16.  Thirdly, the tape recording does not record any conversation about the defendant asking either plaintiff to leave.  However, due to the reasons set out below, I find that she has in fact done so.  In relation to the 1^st plaintiff, it is accepted by the plaintiffs that the tape recording shows that either Mr Lee or Mr Choi indicated to the 1^st plaintiff (on the defendant’s behalf) he should leave if he refused to show his name card to the defendant.  Both Mr Cheng (the occupier of the defendant’s flat) and Mr Choi testified that the defendant had asked the plaintiffs to leave.

17.  Mr Choi’s testimony is supported by a letter dated 26 May 2003 from the said manager.  This letter was written and sent a few days after the commencement of this action (on 23 May 2003).  There is no suggestion that the said manager was aware of this action at the time, or that this letter was written by the said manager with this action in mind.  In addition, Mr Choi testified that this letter’s content is the same as a report he compiled (on the same day as the inspection).  According to Mr Choi, that report was compiled purely for the records of the said manager.

18.  In the circumstances set out above, although the plaintiffs have already entered the defendant’s flat, in view of the short time lapse between their entry and the defendant’s indication that they should leave, I find as a fact that their entry was without the defendant’s permission.  It is unclear if their subsequent stay inside the defendant’s flat was with the defendant’s consent or not.  It is probable that the defendant did not persist in her objection to their continued presence due to the intervention of Wong and Wong’s indication that the plaintiffs and he belonged to the same group (this will be discussed further below).

Reference to the Plaintiffs

19.  An ordinary reader of the said letter, if he had not been informed of the above background or this action, would not have known the said letter referred to the plaintiffs.  This is because the said letter merely referred to “two unknown men said by the ‘surveyor’ that they were the ‘solicitors’ … ”.

20.  Of the individuals specifically named in the statement of claim as the recipients of the said letter:-

(a)     Wong and Mr Lee and Mr Choi of the said manager should know that the said letter refers to the plaintiffs because they were present at the time of the inspection;

(b)    the owners of the 32C flat should know that it refers to the plaintiffs because it is more likely than not the owners would be informed of what transpired during the inspection afterwards;

(c)     the plaintiffs’ employer should know that it refers to the plaintiffs because it is more likely than not the plaintiffs’ employer would know the plaintiffs also attended the inspection and what transpired during that time.

21.  I note that the plaintiffs argue that the defendant has admitted the said letter referred to the plaintiffs.  Subject to what I said in the preceding paragraph, and in view of the denial at para. 12 of the defence, I disagree with this argument.

Extent of Publication of the said Letter

22.  The publication of the said letter to the owners of the 32C flat, Wong, Mr Lee and Mr Choi of the said manager and the plaintiffs’ employer appears to be undisputed.  Insofar as it may be necessary to do so, I find the above publication has been proven.

23.  There is however no evidence relating to its publication to people who have read the said letter when the same was delivered to Mr Lee and/or Mr Choi of the said manager (see para. 3(e) above).  For example, there is no evidence about:-

(a)     whether the said letter was contained in an envelope;

(b)    if so, whether the said letter was addressed to Mr Lee and/or Mr Choi only;

(c)     whether the defendant otherwise intended the said letter to be read by other staff of the said manager.

The related evidence is too scanty for any inference to be properly drawn.  Accordingly, I am not satisfied that it has been proven the said letter has been published to the people referred to in para. 3(e) above.

Meaning of the said Letter

(a)  Pleading

24.  Para. 20, statement of claim avers:-

“In their natural and ordinary meaning the said words .. meant and were understood to mean:

a.    the Plaintiffs were the sort of individuals who might be suspected to have been guilty of knowingly failed and/or refused to disclose their identities to the Defendant upon entering into [the defendant’s flat] in the course of carrying out their duties as legal representatives for [the owners of the 32C flat];

b.    the Plaintiffs were the sort of individuals who might be suspected to have been guilty of knowingly entered into and stayed on [the defendant’s flat] without the permission of the Defendant;

c.    the Plaintiffs were the sort of individuals who might be suspected to have been guilty of knowingly failed and/or refused to leave [the defendant’s flat] upon the demands of the Defendant and the staff from the [said manager of ] Tsuen Wan Centre … ;

d.    the Plaintiffs were the sort of individuals who might be suspected to have been guilty of knowingly behaved in a disorderly manner in refusing to leave after requests were made by the staff from the [said manager of ] Tsuen Wan Centre …;

e.    the Plaintiffs were the sort of individuals who might be suspected to have been guilty of knowingly holding out themselves as solicitors without the necessary professional qualification”.

25.  Further, para. 21, statement of claim pleads other meanings by way of innuendo.  It reads:-

“… by way of innuendo the said words meant and were understood to mean:

a.    the Plaintiffs were lacking in the professional and ethical standards required of and expected of a solicitor or a trainee solicitor;

b.    the Plaintiffs had acted unethically, unprofessionally and unlawfully;

c.    the Plaintiffs were unfit to practise as solicitor or trainee solicitor; and

d.    the Plaintiffs were unfit for their profession owing to the lack of knowledge, disreputable conduct or misconduct”.

26.  In relation to innuendo, Gatley on Libel and Slander (2004) 10^th Ed. said this:-

“… the claimant must not only identify in his particulars of claim the defamatory meaning which he contends the words convey … but also identify the relevant extrinsic facts … ” (para. 3.18).

This is because innuendo involves:-

“… defamatory meaning [which] only arises because of extrinsic facts which are known to the recipients … ” (para. 3.18).

(the above passages in Gatley are not among the authorities relied on by the plaintiffs).  The above requirement is also set out in RHC Ord. 82 r. 3(1):-

“Where in an action for libel or slander the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he must give particulars of the facts and matters on which he relies in support of such sense” (emphasis supplied).

27.  On the other hand, 25 Halsbury’s Laws of Hong Kong (2000) 380.517 states:-

“The defamatory meaning averred to in the pleadings is to be treated at the trial as the most injurious meaning which the words were capable of bearing.  The plaintiff will be estopped from contending that the words bore a more injurious meaning … The lesser meaning has to be in the same class or range as the meaning pleaded and not some wholly different meaning”.

The above passage corresponds to the modern practice of requiring plaintiffs to set out in their particulars of claim the defamatory meaning or meanings which they claim were borne by the words complained of: Gatley, para. 26.20 to 26.24 (these passages are not relied upon by the plaintiffs).

28.  As can be seen from the quote above, para. 21, statement of claim does not plead any facts or matters in support of the innuendo.  Nor have the other parts of the statement of claim set out the defamatory meaning(s).  When queried by the court about this, the plaintiffs clarified that they are not relying on innuendo, and para. 21, statement of claim should be treated as an averment setting out the defamatory meanings of the said letter.

29.  Thus, the court will approach this aspect based on the plaintiffs’ said clarification regarding their pleading.

(b)  “Sting” of the Defamation

30.  In determining this aspect, the following principles have been taken into account.

31.  “For the purposes of the law of defamation, the fact that the same words can mean different things to different people is ignored; the court seeks to determine and act upon the one and only meaning that the readers as reasonable persons should have collectively understood the words to bear; this is the natural and ordinary meaning”: Hong Kong Halsbury, para. 380.517.

32.  Where defamation actions are tried by a single judge, it would be carrying artificiality too far to require the judge to arrive at the single “right” meaning by distinguishing between meanings which the words were capable of bearing and then choosing the “right” one: Next Magazine Publishing Ltd. v. Oriental Daily Publisher Ltd. (2000) 3 HKCFAR 160 (an authority not relied on by the plaintiffs).

33.  The meanings of the words are to be construed in the context of the articles as a whole: Hong Kong Halsbury, para. 380.518.

34.  The court puts itself in the position of an ordinary reader when construing the article in question: Gatley, para. 3.24 and 3.25 (passages not relied on by the plaintiffs).

35.  There are various ways of defining what are defamatory meanings.  For the purpose of this action, I will adopt the following:-

“a statement is defamatory if it tends to harm the reputation of another so as to lower him or her in the estimation of the community or to deter third parties from associating or dealing with him or her”: American Second Restatement of Torts quoted in Gatley, para. 2.1.

36.  The law looks only to whether an imputation has a tendency of injuring a person’s reputation.  A cause of action still lies even if the words were not believed by the audience (unless they were totally beyond belief): Gatley, para. 2.1.

37.  The said letter advances basically 3 propositions:-

(1)     “… two unknown men said by the ‘surveyor’ that they were the ‘solicitors’ … ” and “they were unable to provide any of their identity and proof of their profession” (“‘the failure to disclose identity proof’ proposition”);

(2)     “… [the two unknown men] … entered into my premises without my permission despite myself and the management office demanding them to leave … ” (“‘the unauthorised entry’ proposition”);

(3)     “… it is totally beyond our previous agreement … ”.

38.  In the context of what happened on 13 May 2003, the last-mentioned proposition must have been about the presence of the plaintiffs’ not being part of the agreed arrangement.  Because of the averments set out in para. 20, statement of claim, this cannot be any of the matters relied upon in support of the defamatory meanings contended for in para. 21, statement of claim.  For this reason, I do not consider the last-mentioned proposition to be relevant to whether the said letter bears a defamatory meaning.

39.  I do not consider “the failure to disclose identity proof” proposition to bear any defamatory meaning.  The ordinary reader, even if he should assume that the “two unknown men” were in fact qualified solicitors, would not consider their reputation to have been harmed “…so as to lower [them] … in the estimation of the community or to deter third parties from associating or dealing with [them]”.  “The failure to disclose identity proof” proposition merely states that two unknown men:-

(1)    were described by a third party to be (or referred to by a third party as) solicitors; and

(2)    did not prove that description or reference (whether the failure was the result of inability or refusal is immaterial in present context).

40.  It should be noted the said letter does not state the two unknown men were in fact solicitors.  Further, no innuendo has been relied upon (the plea of innuendo at para. 21, statement of claim was in effect abandoned at trial).  In any event, no particulars have been given in support of the plea.

41.  I do not find that “the unauthorised entry” proposition to bear a defamatory meaning either.  Its natural and ordinary meaning is: two unknown men entered the defendant’s flat without the defendant’s permission and refused to leave when being asked to do so.  The most injurious meaning is that those men were described as trespassers and in that sense were said to be acting unlawfully.  To this extent, the defamatory meaning pleaded at para. 21b, statement of claim is established.  I do not consider the said letter to bear any of the other defamatory meanings set out at para. 21, statement of claim.

42.  It is usually defamatory to impute the commission of a criminal offence: Gatley, para. 2.17 (not relied upon by the plaintiffs).  But the imputation of a criminal offence or conviction in very minor cases is not defamatory.  Examples given were a parking offence or a minor offence of speeding: Groom v Crocker [1937] 3 ALL ER 844, 848 (not relied upon by the plaintiffs).  I consider the same reasoning to be applicable to an accusation of a minor tortuous act such as the “unauthorised entry” proposition.

Defence

43.  Para. 12, defence expressly refers to the defence of justification and honest comment (see Cheng v. Tse Wai Chun (2000) HKCFAR 339 and Gatley, para. 12.24.  Neither of these are relied on by the plaintiffs).

(a)  Justification

44.  I have concluded that nothing in the said letter bears a defamatory meaning.  I shall discuss this aspect assuming, somehow, “the unauthorised entry” proposition is defamatory in the sense set out in para. 41 above.

45.  What the defendant needs to justify is the “sting” of the defamation.  She does not need to prove each and every word is true: Hong Kong Halsbury, para. 380.550 and Gatley, para. 11.8 to 11.10 (Gatley is not relied upon by the plaintiffs).

46.  In view of the findings of fact, I consider the defendant has successfully established this defence.

47.  The plaintiffs also rely on the defendant not persisting in her objection to their continued presence after Wong has indicated they also belonged to the same group.  Because of this, they argue “the unauthorised entry” proposition cannot be true.  I do not agree.  First, the defendant (both herself and through the said manager) has made it abundantly clear the plaintiffs should leave.  Secondly, the plaintiffs (and in relation to this matter, I infer the 2^nd plaintiff would follow the 1^st plaintiff’s action) also indicated they would leave.  That the plaintiffs should later decide to stay on is a different matter altogether.  The said letter does not assert that the plaintiffs continued to stay in the defendant’s flat without permission.

48.  I have concluded “the failure to disclose identity proof” proposition is not defamatory.  Even if it were defamatory, I would have found that it is true.  In relation to this matter, whether the plaintiffs’ failure was a result of refusal or inability is irrelevant.

(b)  Honest Comments

49.  By virtue of the above, it is unnecessary to consider whether the defence of honest comments has been established by the defendant.

(c)  Qualified Privilege

50.  The defence has not pleaded the defence of qualified privilege.  In the course of the plaintiffs’ opening speech, I indicated that the following passages in Gatley may be relevant to this defence if it had been relied upon by the defendant:-

(a)     para. 14.33: volunteered communications regarding employees’ character;

(b)     para. 14.43: common and reciprocal interests;

(c)     para. 14.46: other common interests;

(d)     para. 14.54: redress of grievances;

(e)     para. 14.57 to 14.60: complaints against public officers, persons in authority or with responsibilities towards the public.

51.  It is unnecessary to consider if in fact this defence can be established.  The plaintiffs assert that the said letter was published with malice (see para. 24, statement of claim).  If it had been necessary to make a finding, I do not find any sufficient basis for concluding that there was actual malice on the defendant’s part.

Conclusion

52.  By virtue of the above matters, as state above, this action is dismissed.

Other Matters

53.  The defendant acts in person and, understandably, she offers practically no assistance to the court with regard to the legal aspect of this action.  Plaintiffs’ counsel, on the other hand, has referred to a number of authorities.  Unless otherwise stated, the legal principles quoted above are taken from the authorities provided by the plaintiffs.

54.  I mentioned at the beginning of this judgment the triviality of the subject-matter of this action.  The plaintiffs, being solicitors, should know better than anyone else that judicial resources are scarce and expensive.  They should know that judicial resources should be spent on more worthy causes than this action.  Even if they had been able to establish their claim, the quantum which may be awarded is likely to be very small (or may even be nominal) taking into account the nature of the article and the extent of publication.  In any event, the quantum should be nowhere near $1 million (for the 1^st plaintiff) and $700,000 (for the 2^nd plaintiff) as the plaintiffs claim in their opening speech.

55.  Finally, I must observe that the plaintiffs’ conduct in refusing to leave the defendant’s flat when being asked to do so is far from what one would reasonably expect of an educated person (let alone a qualified professional).

56.  The 1^st plaintiff explained in his testimony why he did not want to give his name card to the defendant.  From the tape recorded conversation, it is obvious the defendant was more concerned with seeing some proof of identity than obtaining the name card.  I do not understand why the 1^st plaintiff did not suggest to the defendant that he could show her his Law Society membership card as proof of identity instead.

Costs Order Nisi

57.  There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this action be paid by the plaintiffs to the defendant, to be taxed if not agreed.