BRIAN MONTGOMERY v. CHUNG CHEUK HUNG, HERO

HCA 1373/2015

[2018] HKCFI 1804

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1373 OF 2015

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DECISION

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The litigation history

1.  Mr Montgomery is a professional opera singer.  Mr Chung is a retired merchant and also a singer.  Mr Chung was at one time a voice pupil of Mr Montgomery.

2.  Between the early hours of 29 March 2015, and the late hours of 31 March 2015, the parties exchanged 14 email messages.  In his Statement of Claim (“SOC”) Mr Montgomery defines the 14 email messages as “the initial exchange”.  The SOC describes the email messages as being acrimonious, and including a mutual exchange of insults. 

3.  Paragraph 4 of the SOC asserts as follows:

“ By an email message of 7 April 2015 at 17:32 hours sent by [Mr Chung] by electronic means to the South China Morning Post and other musical circles in Hong Kong, China, Southeast Asia and beyond (the full extent, scope and identity of all recipients being unknown to [Mr Montgomery] and on which [Mr Montgomery] intends to interrogate [Mr Chung] here and in due course) [Mr Chung] proclaimed ‘to open up publicly’ the said initial exchange and enclosed the full text of all the 14 messages (with minor modifications in the 3^rd and 13^th emails).”

4.  In paragraph 5, the SOC refers to two of the emails, the 7^th and the 13^th, and identifies certain passages in those emails which, in paragraph 6,are said to be understood to refer to Mr Montgomery. 

5.  In paragraph 7 the SOC pleads that the words in the identified passages were defamatory in their ordinary and natural meaning (a reference innuendo [1]). Paragraph 7.3(ii) set out what was alleged to be the ordinary and natural meaning of the words:

“ Of the 13^th email, that

(i) [Mr Montgomery] was dishonest and was exploiting his students with Italian masterclasses from which the students learned absolutely nothing,

(ii) [Mr Montgomery] was mean, dishonest, lazy and mercenary and presenting concerts in which he would use repeated songs in a limited repertoire to rip off the audience.”

6.  In paragraph 8 there is an assertion that:

“ … the 13^th email contained an innuendo …”

Although not explicitly stated the pleading is apparently intended to be a statement that the words were used in a defamatory sense, other than in their ordinary meaning, (a meaning innuendo [2]). The words complained of are:

“ Furthermore, don’t think I don’t know about your problems in XXX. Otherwise XXXX XXXX would not have replaced you. So don’t disguise yourself to be a popular and well-received person. Hope you don’t make the same trouble in them Met, and then you will have no more place to go in this world.” (sic)

7.  The pleader plainly appreciated that when a reference innuendo is alleged particulars are required.  That is quite clear from the provisions of Order 82, rule 3(1) of the Rules of the High Court, which provides:

“ 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.”

8.  Mr Lai relied upon paragraphs 9 and 10 to meet the requirement of particulars.  Those paragraphs are in the following terms:

“ 9 [Mr Chung] well knew and intended, and that all recipients of the email in musical circles who knew [Mr Montgomery] would know that the first occurrence of symbols XXX referred to the APA (the Hong Kong Academy for Performing Arts) and the second occurrence of symbols XXXX XXXX referred to a soprano and music educator named Nancy Yuen. Indeed these names appeared in the original text of the initial exchange direct between the parties. It was an open fact known to all musical circles that [Mr Montgomery] had been the Head of Vocal Studies of the APA for some years and after his departure the position was filled by Nancy Yuen.

10 In the premises the said words under paragraph 8 hereof meant and were understood by all recipients to mean that [Mr Montgomery] was dismissed by the APA for misconduct or incompetence or troublemaking and was replaced by Nancy Yuen as the new APA Head of Vocal Studies.”

The defence

9.  Following his receipt of the writ Mr Chung filed a document which he entitled “Defendant’s Statement” (“DS”) and which may be said to be a statement of defence.  Mr Chung does not plead in the usual way to the individual paragraphs of the SOC. In paragraph 6 of the DS, Mr Chung says:

“ [Mr Chung’s] email of April 7 was sent to various friends, acquaintances, and some vocal teachers as a goodwill, which would act as a reminder (or warning) to related people …. A clear record of recipients of the email is maintained in [Mr Chung’s] personal file.”

That is a clear admission of the publication asserted in paragraph 4 of the SOC.

10.  In paragraph 7, Mr Chung denies sending the email to the South China Morning Post and “South East Asia”.  He says:

“ If the email was related by a first recipient to South China Morning Post, or some other unrelated recipients, it was not [Mr Chung’s] fault.” (sic)

11.  Mr Chung did not specifically respond to the pleading in paragraph 7.3(ii).

12.  In response to the pleading in paragraph 9 of the SOC Mr Chung says:

“ In point No. 9, [Mr Montgomery] alleged an innuendo without grounds, and attempted to do the thinking and reading for all parties. For the first 3 XXX, a third party could well interpret as ‘HKU’ (Hong Kong University), or ‘OHK’ (Opera Hong Kong), or ‘MET’ (Metropolitan Opera House), or ‘ADV’ (Arena di Verona), or ‘H&M’, etc. [Mr Montgomery] could not be possible to insist the way of thinking in a third party’s mind.” (sic)

13.  As will be seen, counsel for Mr Montgomery has applied to amend the statement of claim. 

14.  The time for Mr Chung to file his defence has been extended until the determination of the application to amend the statement of claim.  Consequently, a proper defence is yet to be filed.  Mr Chan has indicated in the course of the argument that Mr Chung intends to rely upon the defence of qualified privilege as part of his defence to the proceedings. 

The application to amend the statement of claim

15.  Upon the application of counsel for Mr Chung, on 13 July 2016, the Master made an order that an application to strike out paragraph 7.3(ii) be dismissed, but that paragraphs 8, 9 and 10 of the SOC be struck out. 

16.  Leave was given to Mr Montgomery to apply to amend his SOC within 30 days, with time to run during the vacation.  Mr Montgomery did not appeal against that order.

17.  Within time, on 9 August 2016, the solicitors for Mr Montgomery issued a summons for leave to amend the SOC with a draft Amended Statement of Claim (“DAOSC”), to be signed by counsel, attached.  In the DAOSC substantial amendments were made to paragraph 4, and paragraphs 8, 9 and 10 were deleted, being replaced with 6 other paragraphs. 

18.  It is appropriate to set out the amendments in detail.  As amended, paragraph 4 now reads:

“ 4 By an email message of 7^th April 2015 at 17:32 hours sent by [Mr Chung] by electronic means to persons in musical circles in Hong Kong [Mr Chung] proclaimed ‘to open up publicly’ the said initial exchange and enclose the full text of the 14 messages (with minor modifications in the 3^rd and 13^th emails).

4A A complete copy of the set of 14 mails published by [Mr Chung] is set out in the Schedule hereto.” (sic)

19.  The new paragraphs substituted for paragraphs 8, 9 and 10 read as follows:

“ 8 The said 13^th email also contain an innuendo in the following terms: ‘furthermore, don’t think I don’t know about your problems in XXX. Otherwise XXXX XXXX would not have replaced you. So don’t disguise yourself to be a popular and well-received person. Hope you don’t make the same trouble in Met, and then you will have no more place to go in this world’

9 By the aforesaid wording [Mr Chung] well knew and intended that:-

(i) the first occurrence of ‘XXX’ meant the APA (Hong Kong Academy for Performing Arts);

(ii) the next occurrence of “XXXX XXXX” meant Nancy Yuen,a soprano and music educator who filled [Mr Montgomery’s] position as Head of Voice in the Music Department of APA after [Mr Montgomery’s] resignation; and

(iii) ‘Met’ meant the Metropolitan Opera of New York, USA.

9A In the context of names as identified in paragraph 9 aforesaid [Mr Chung] further knew and intended the innuendo text of paragraph 8 to mean:-

(i) that [Mr Montgomery] was dismissed by APA for making trouble or other problems with his conduct or performance;

(ii) that after the dismissal [Mr Montgomery] was replaced by Nancy Yuen who filled his former office;

(iii) that [Mr Montgomery] was daily walking in disguise as a popular and well-received person contrary to the facts; and

(iv) that [Mr Montgomery] would be well advised to improve on his conduct and stop making further trouble, failing which he might mess up his job at the New York Metropolitan Opera and run into the end of the road for his professional singing career.

10 The aforesaid innuendo meaning would be known to or so understood by many persons engaged or interested in classical music, opera singing, orchestral instrument players, classical music presenters or critics, classical concertgoers, and other persons otherwise concerned in classical music making, teaching or production (hereinafter referred to as ‘the classical music community’). Some of them were original direct recipients of [Mr Chung’s] email publication such as Paul Li, Tao Ying, Shirley Fu, Derek Anthony, Jimmy Chan, Ella Kiang. Others received news of the libel through social conversation, music activities, or other media channels and were shown copies of [Mr Chung’s] email by other musicians including but not limited to Sandra Wan, Sukie Sing, Emily Liu, Gustav Ng, Raymond Fu, Li Jiang and Pancy Wong.

10A Of the aforesaid persons in the classical music community who directly or indirectly came to notice of [Mr Chung’s] emails, some of them know [Mr Montgomery] personally and accordingly they know that [Mr Montgomery] used to be the Head of Voice at APA, and that after his departure his position was filled by Nancy Yuen. Some of them further know that after his departure from the APA, [Mr Montgomery] has joined the New York Metropolitan Opera in recent years and regularly sings featured roles in annual seasons of the Opera house.

10B     Other persons in the said classical music community, though not knowing [Mr Montgomery] personally as a friend, know [Mr Montgomery] by name, by face, by profession or as some as artist on social acquaintance, by reason of their own classical music background, such as past and present music (in particular voice) students and graduates of the APA, past or present staff of the APA,musicians and orchestras, opera groups, choirs, universities and schools, operators or patrons of private music academies, music centres and music studios through his dozens of performances in Hong Kong over the past 11 years.  Many persons in this category know about [Mr Montgomery] being the Head of Voice at APA, and after his departure the position was filled by Nancy Yuen.  Some persons in this category further know about [Mr Montgomery’s] engagement by the New York Metropolitan Opera in recent years.” 

20.  Mr Chung, by his counsel, opposed the amendment application.  On 10 March 2017, after hearing arguments, the Master made the following order:

“ 1. There be liberty to [Mr Montgomery] to add a paragraph addressing [Mr Chung’s] intention and responsibility on republication of the original libel by third parties in wording to be approved in a draft to be submitted within 21 days of the Order;

2. Paragraph 10B of the [DASOC] attached to the Summons filed by [Mr Montgomery] on 9 August 2016 be disallowed;

3. Subject to further particulars being provided within 21 days in wording to be approved under paragraph 10A identifying the person is alleged to have knowledge of the extrinsic facts pleaded under paragraph 9, and of each and every person so identified specify which of the four items of extrinsic facts under paragraph 9A the individual personnel is alleged to have, leave be granted to [Mr Montgomery] to amend the [SOC] in terms of the [DAOSC] (except for paragraph 10B which is disallowed); and

4.   [Mr Montgomery] to pay [Mr Chung] 50% of the costs of the summons in any event with certificate for counsel.”

The appeal

21.  Now, Mr Montgomery appeals against paragraphs 2, 3 and 4 of the order and attaches a New Draft ASOC (“NDASOC”), and seeks leave to amend accordingly.

22.  The further amendment proposes to insert a new paragraph 4B in the following terms:

“ 4B By reason of specific discovery pursuant to Court Rules upon the Defence filed by [Mr Chung] herein on 25 June 2015, [Mr Chung] has disclosed a list of the persons to whom the email message under paragraph 4 above was published (hereinafter referred to as ‘the direct recipients’). [Mr Chung’s] disclosed list of direct recipients is annexed hereto as Schedule 2. [Mr Montgomery] personally know some of the direct recipients on [Mr Chung’s] lists such as Derek Anthony, Amy Chan, Jimmy Chan, Vincent Chung, Fiona Fong, Lovinia Hui, Ella Kiang, John Luk, Lillian Mak, Tao Ying, Dennis Tsang, Mylthie Wong, Jane Liang and Shirley Yeung. [Mr Montgomery] further knows some other names on the list (such as Chan Kam Yee, Winsor Chan, Paul Li) which includes singers, choirmaster’s, music teachers and other accomplished performers in classical music circles with substantial network of pupils, followers or music oriented friends. By reason of [Mr Chung’s] crafty choice of recipients [Mr Montgomery] contends that it is reasonable to infer that [Mr Chung] intended or foresaw the republication of his email by the direct recipients to other persons in classical music circles, thereby disseminating copies thereof or reciting its contents in written or oral form which would escalate damage to the plaintiff’s reputation.” (sic)

This paragraph has plainly been inserted in an attempt to comply with paragraph 1 of the Master’s order.  Paragraphs 10, 10A and 10B, as pleaded in the DASOC submitted to the Master are maintained.  In the course of argument, further amendments were suggested to Mr Lai, but he declined those suggestions and relied upon the NDASOC as submitted with the appeal.

The issue of republication

23.  It is trite defamation law that each publication of a defamation constitutes a separate cause of action, and publication is the indispensable constituent of a proper cause of action for defamation. Publication is not defined by the Defamation Ordinance, Cap 21.  At common law publication consists of the communication of an imputation defamatory of the plaintiff to some person other than the plaintiff himself: see Pullman v Hill [1891] 1 QB 524 at 527.

24.  Republication occurs when a defamation that has been published to a recipient is republished, or passed on, by that recipient. It is well-established that a plaintiff may elect to sue the defendant both for the original publication and for any republication as two separate causes of action, or sue the defendant in respect of the original publication only, but seek to recover, as a consequence of that original publication, any damage allegedly suffered by reason of its repetition, so long as such damage is not too remote: see Gatley on Libel and Slander 12^th Ed (2013), §6.52.  The recent Hong Kong cases of Esther Chan Pui Kwan v Chang Wa Shan [2018] HKCFA 29, and Jonathan Lu v Paul Chan Mo Po [2014] HKEC 248 are examples of actions for defamation based upon a republication.

25.  In Bawang International (Group) Holding Ltd & Anor v Next Magazine Publishing Ltd (unreported, HCA 1109/2010, 20 May 2013), Jeremy Poon J (as he then was) set out the relevant English case law demonstrating doubt about the proposition that a plaintiff can recover damages flowing from a publication in respect of which he cannot even establish primary liability on the part of the defendant (a republication).  In that decision, on an application for amendment of a defence, the plaintiff relied upon republications in the Mainland for the purpose of recovery of damage, but not on the republications as separate causes of action.  The judge was not required to reach a conclusion on the issue.

26.  The decision of Bingham LJ (as he then was) in Slipper v BBC[1991] 1 QB 283 is usually regarded as authority for the proposition.  However in Baturina v Times Newspapers Ltd[2010] EMLR 18, Eady J questioned the juridical basis of the proposition.  Although setting out the conflicting authorities the judge concluded that that was not an occasion to come to a definitive view. 

27.  Mr Chan does not ask me to reach a conclusion on this conflict in these proceedings, at this time.

The relevant rule

28.  The relevant rule is contained in Order 82, rule 3(1), supra §7.  The rule refers to a situation where a meaning innuendo is pleaded.  It necessarily follows, where a meaning innuendo is pleaded, that particular care must be taken by a plaintiff in complying with the rule.

29.  That is particularly so in this case, where Mr Chung seeks to rely on a defence of qualified privilege.  A defence of qualified privilege is available in a republication case: see the Queensland case of Belbin v Maclean[2004] QCA 181.

30.  Mr Chan’s industry was such as to enable him to draw to my attention to the following passage referred to in a decision of the Master in the Supreme Court of British Columbia, in Brown v Cole & Ors [1994] BCJ No 2356 [3], citing a decision in Unterberger v Prospectors Airways Co Ltd [1962] OWN 212[4], which was cited with approval in The Law of Defamation in Canada, R E Brown, Vol 2, at 800.  The passage aptly sets out the requirement of the particulars in a republication case:

“ When the plaintiff has alleged that the words have been repeated to others, under circumstances where the defendant is liable, the defendant is entitled to the names of the persons who it is alleged repeated the slander, the words used, and the time and place they were published.”

It is to be noted that Brown v Cole was a case where the defendant sought to rely upon a defence of qualified privilege.

Discussion

31.  First, the statement of claim must make it precisely clear whether republication is pleaded as a separate cause of action, or merely an aggravation in damages. 

32.  I understand from Mr Lai that he relies upon the new pleading in paragraph 4B to establish that he relies upon republication for damages only.  But it is not at all clear whether that paragraph refers to paragraph 10, or to 10A, or 10B or to all or only some of those paragraphs.  A preferable way of pleading the matter, which would make it clear to the defendant the case he must meet, is demonstrated by the pleading in McManus v Beckham [2002] 1 WLR 2982 at 2986G–H.

33.  Second, whether the action is based upon an original publication, or a claim limited to extended damages arising from a republication, if a meaning innuendo is pleaded, the plaintiff must meet the provisions of Order 82, rule 3(1), and provide appropriate particulars.  Those particulars must be particulars, not only of the extrinsic facts upon which the meaning innuendo is based, but also as to the recipients of the republication.  That is because the extrinsic facts upon which the meaning innuendo is based will only have meaning if the precise recipients or class of recipients alleged to have received the republication are appropriately particularised.

34.  Plainly, if individual recipients of the republication, and a class of recipients of the republication are to be asserted each must be separately identified appropriately, and the statement of claim must make clear whether each, either as individuals or as a class, are concerned with the original defamation publication, or with simply extended damages.  In either case particulars must be provided.

35.  It is clear that the pleader has had this requirement in mind when drawing paragraphs 10A and 10B of the DAOSC, repeated in the NDASOC. 

36.  However, paragraph 10, it seems to me, conflates specific persons to whom the publication was made with certain individuals and a class of persons who, the pleader wishes to allege, learned of the defamation by way of republication.  It is not clear whether it is asserted that the republication was by identified people or by a class of persons.  It is not clear whether the recipients of the republication were identifiable people or a class of persons.  By combining both specific persons and a class of persons, referred to as “the classical music community” in the one paragraph it is not clear whether or not the pleading refers to the original publication or a republication, or who is alleged to have made the republication.

37.  It is not clear whether the persons by whom the republication was allegedly made are the persons who were identified by name in the pleading, or were other persons or a class of persons.  As long as the paragraph fails to precisely identify either the individuals by name, or the class by appropriately precise definition, the pleading cannot stand.

38.  Paragraph 10A makes the same error. 

39.  In addition to that error, by referring to persons who “directly or indirectly came to notice of Mr Chung’s emails” the pleading conflates both the identifiable individuals and any class the pleader wishes to define.  Further it conflates publication by Mr Chung and republication by individuals or a class who received the defamation from those to whom it was published by Mr Chung. 

40.  Those conflations, and consequent confusion, are aggravated by the use of the expression “some of them know the plaintiff personally”, and later “some of them further know”.  In order to properly respond to this pleading the defendant is entitled to know precisely to whom each of the expressions “some of them” refers.

41.  As presently pleaded, it is not clear whether the reference is to a class, the whole of a class, some of a class, or specific persons.

42.  Paragraph 10B falls into both of the same errors.  It commences “other persons in the said classical music community” and then appears to refer to a separate group within the class of the “classical music community” who “know the plaintiff by name, by face, by profession or as some artist on social acquaintance”.  Later in that paragraph other vague and confusing expressions such as “many persons in this category” and “some persons in this category further know”.

43.  Drawn in in the proposed manner, it is simply not possible for Mr Chung to know how he should respond to the pleading.  He is unable to gauge the extent of the class that he must consider if, for example, he might determine whether or not he should make a payment into court.

44.  Mr Chung seeks to rely on a defence of qualified privilege.  In my view Mr Chan correctly put the requirement for particulars this way:

“ Case scenario 1: For the direct recipients of the 14 emails, his qualified privilege defence may succeed and he could properly defend themselves;

Case scenario 2: For the identified and named “republishers” and “republishees”, his defence of qualified privilege may also succeed as he will be in the know on the exact background of those identified persons;

Case scenario 3:  But for the persons who are loosely alluded to and ill-defined under §§10A & 10B, the defendant would not be able to advance the qualified privilege defence as he would have no clue as to the identities of the re-publishers or the republish ease.”

45.  The particulars that should be given are particulars not only in respect of the meaning innuendo to establish the extrinsic facts relied upon to establish the meaning innuendo.  They must also establish the particulars of the individuals who might have known those facts, or the class of persons who might have known those facts.  As presently pleaded these groups are conflated, not only internally, but externally in relation to the issue of original publication or republication.

46.  Mr Lai complains that the pleading points taken against Mr Montgomery in this case are merely designed to delay and frustrate the proceedings.  That is simply not the case.  More than in any other branch of the law, in defamation, the pleadings are vital.  The defendant is entitled to know precisely what the cases he must meet and the extent of the case.  In Chang Wa Shan, Lord Walker of Gestingthorpe NPJ, at §123, said this:

“ The function of pleading an innuendo is not simply to give a general indication of why the plaintiff regards the written or spoken words as defamatory. It is much more specific. It is to plead facts, and moreover facts which were known, at the time of publication, to the audience to whom the publication was addressed. This is made clear in the learned judgment of Holroyd the Pearce LJ in Grubb v Bristol United Press Ltd [1963] 1 QB 309, 326–7.”

47.  It has always been the case that defamation pleadings must be fully particularised.  Mr Chan drew my attention to the ancient case of Ratcliffe v Evans [1892] 2 QB 524, per Bowen LJ, giving the judgment of the Court of Appeal at pp 532 – 533:

“ But it is an ancient and established rule of pleading that the question of generality of pleading must depend upon the general subject-matter: Janson v. Stuart; Lord Arlington v. Merricke; Grey v. Friar; Westwood v. Cowne; Iveson v. Moore. In all actions accordingly on the case where the damage actually done is the gist of the action, the character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To assist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.”

48.  That statement is as apt today, 126 years later, as it was in 1892.  Those who embark upon pleading in defamation must do so with caution and take particular care to meet the rules. 

Disposal

49.  For the foregoing reasons the appeal against the Master’s decision is dismissed, and the application to further amend the SOC by the NDASOC is dismissed.  There is no basis to adjust the costs order made below, which was generous to Mr Montgomery.

Costs

50.  Costs must follow the event.  There will be an order nisi to be made absolute in 14 days that Mr Montgomery must pay Mr Chung’s costs on the appeal, to be taxed on a party and party basis if not agreed.