NG TUNG SANG v. LAU CHEUK MING

DCCJ 6454/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6454 OF 2003

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J U D G M E N T

1.  In this action the Plaintiff claims damages against the Defendant for uttering words “你因住” which was understood by the ordinary person and by the Plaintiff as an implied threat to the Plaintiff’s personal safety.   The Plaintiff pleaded in paragraph 10 of his Re-Amended Statement of Claim that:

“	The Plaintiff was seriously perturbed by the aforesaid threatening remarks made by the Defendant:-
	(a)	He was unable to concentrate on running his businesses for a week;
	(b)	He felt humiliated as the threatening remark was made in the presence of all persons attending the meeting, which included some other owners;
	(c)	He had to worry about his personal safety when he goes to his office, as the Defendant lives just one floor below and uses the same lifts;
	(d)	He was worried whether he could/should continue to assist or participate in building management matters of Kwong Wah Mansion.”

2.  He claimed that he suffered a loss of not less than HK$50,000 arising from his being perturbed as particularized.

The Evidence

3.  The Plaintiff was, according to himself, a successful entrepreneur, although he had received little formal education and was hardly literate.  He was engaged in the construction trade and he had purchased a couple of units in Kwong Wah Mansion (“the building”) which he used as the office of his company, Sang Fai Construction Company Ltd (“Sang Fai”).

4.  Because of his expertise, he was appointed Supervisor for Maintenance and Repair by the Management Committee of the Incorporated Owners of the Building (“MCIO”) on an honourary or gratuitous basis.  He often offered to do various minor maintenance works for the Building for free.

5.  In 2002, a major repair and/or maintenance project (“The Project”) on the Building had to be undertaken.

6.  An architectural firm by the name of Goal d’Arch Associates 毅建築設計顧問 (“Goal d’Arch” or “the Consultant”), was appointed to act as consultant for the Project.  Mega Projects Construction Ltd 鵬程建築有限公司 （“Mega Projects” or “the Contractor”） was subsequently appointed as contractor.

7.  When the maintenance work was almost completed, the Plaintiff discovered that there was an omission : the newly re-painted stairs did not have floor numbers painted on them.  This could be dangerous as in the case of fire, people using the stairs to escape would not know which floor they were at in their escape.

8.  An MCIO meeting (“the Meeting”) was convened on 4^th September 2003 at 2 p.m. to discuss the Project.

9.  The Plaintiff attended the Meeting with a member of his staff, one Mr. Jacky Lam, an Assistant Quantity Surveyor employed by Sang Fai.  Representatives from the Consultant and the Contractor also attended the Meeting.

10.  It is not disputed that at the meeting the Plaintiff raised a complaint that the contractor had failed to paint numbers in the stairwell.   He made the allegation that the Consultant was negligent in failing to oversee this.   Mr.Hui or Mr. Yip Tak Wing of the Consultant said that this item was not in the Tender Document and the Tender Document had been passed by the MCIO.   Mr. Ng became increasingly agitated and stated that the Consultant was negligent.   Then he said that the Consultant should take responsibility.  

11.  According to Mr. Ip Tak Wing (“Mr. Ip”) of the Consultant, Mr. Ng by then was speaking very loudly.    At that point, according to the evidence of Chan Wing Sheung, (“Ms. Chan”) the wife of the Defendant, (the honorary treasurer of the MCIO at the time), she interjected and stated that she did not agree to the use of the term by the Plaintiff meaning prosecute in Chinese “追究” against the Consultant requiring them to take responsibility but the words used should be to “rectify” “補救” the situation.     The reason was the Renovation Subcommittee of the Incorporated Owners had passed the Tender Document which did not contain that item.   They should observe the spirit of the contract.   According to the evidence of Ms. Chan and the Defendant, Mr. Ng then started to scold Ms. Chan with foul language.   The Defendant spoke and said that they should observe the spirit of the contract as the Incorporated Owners (“IO”) had passed the Tender Document; they should seek to rectify (“補救”) the problem and not prosecute (“追究”).   According to Ms. Chan the Defendant, Mr. Wong Kui Hung, (“Mr. Wong”) the Chairman of MCIO at the time, and Ms. Yuen Miu Wah (“Ms. Yuen”), the representative of the building management company Homechant Limited, the Plaintiff then scolded the Defendant with foul language for a few minutes.   The Defendant said that the Plaintiff even mentioned his mother in the foul language.   Ms. Chan, the Defendant, Ms. Yuen, and Mr. Wong, gave evidence that the Defendant said to the Plaintiff, words to the effect that he had to be careful of the words used as the Plaintiff could breach the laws of Hong Kong by such words.   Shortly after that Mr. Ng stood up and said to the Defendant, “Why did you say the words “你因住”.  

12.  According to the Plaintiff, the Defendant had stood up and banged the table and said the words “你因住”.    The Defendant denied this.   The Defendant’s witnesses Ms. Chan, Ms. Yuen, Mr. Ip, Mr. Wong Kui Hung, Chairperson of the MCIO of Building all present at the time stated that they did not hear the Defendant say the words “你因住”. 

13.  The Defendant and all his witnesses then stated that after the Plaintiff stated, “why did you say “你因住””, then the Defendant stood up and asked if anyone had heard him utter the words “你因住”.     No one said a word.   The Plaintiff then answered that his staff next to him, namely Mr. Lam Ming Ki (“Mr. Lam”) has heard him.    The Defendant stated that the Plaintiff immediately ordered his staff Mr. Lam to record that.    He then asked Mr. Lam whether he heard the words “你因住”.   Mr. Lam maintained silence.   Mr. Lam gave evidence under cross-examination and stated that the Defendant asked him whether he heard the Defendant say the words “你因住”.   Mr. Lam stated in evidence that he recorded the words in his notes that the Defendant loudly shouted “你因住”.   He also said that the Defendant did say words similar in content to “if you used those words (foul language) you could offend the law”.    He stated that the Plaintiff said to him to record that the Defendant said “因住”.   The Plaintiff said that he asked his staff Mr. Lam “to make a minute”.   He said that he did not hear the Defendant say to his staff Mr. Lam words to the effect “did you hear it and if you did speak up.”   

14.  Ms. Yuen then said that she and other persons present at that point spoke and said that the Defendant did not say those words or did not mean it that way.  According to her Mr. Hui of the Consultant then stated that they should rectify the situation and repaint the numbering.   Mr. Ip stated that the Plaintiff then scolded until he was exhausted and was panting.    

15.  The Plaintiff alleged that immediately after the meeting had ended after all the items on the agenda was dealt with, he telephoned his solicitors to ask them to report the alleged implied threat by the Defendant, to the Police.  

16.  According to Ms. Yuen, Mr. Wong and Ms. Chan, the Plaintiff was accustomed to scolding other people with foul language causing great unpleasantness and ill feeling arising from that.    Even his staff under cross-examination admitted that the Plaintiff was very strict as an employer.  

The Issues

1.	Whether the Defendant did utter the words “你因住” as an implied threat.
2.	If so, whether the alleged words of “你因住” amounted to an assault.
3.	Or, in the alternative, whether the alleged uttering of “你因住” amounted to intimidation.
4.	If so, whether the Plaintiff could establish any monetary loss arising from that.

The 1^st Issue

17.  The Plaintiff was an uneducated self-made man who was in the construction business.   It is not in dispute that the Plaintiff had the habit of speaking in foul language.   He sought to excuse himself and said that it was the language used in construction sites and he did not mean any harm by it.   

18.  It was not disputed that the Plaintiff had started to speak loudly in an accusing way against the Consultant’s representatives, Mr. Hui and Mr. Ip for having been negligent in failing to put the item of work of numbering the back stairs in the Tender Document.   He got even more heated when the Defendant stated that the Plaintiff should not use the words “追究” but the words “補救”.    I accept the evidence of the Defendant and Ms. Chan that before the Defendant said to the Plaintiff that he should not use the words “追究” but the words “補救”,  Ms. Chan had said the same.  When she did so, the Plaintiff started talking even more loudly and scolded her with foul language.    When the Defendant repeated the same, the Plaintiff started to scold the Defendant with foul language for several minutes.    He got even more louder.    It is clear that he must have lost his temper and became heated and angry for the evidence showed that he shouted even more loudly.  According to the Defendant, Ms. Chan, Ms. Yuen and Mr. Wong, it was then that the Defendant allegedly said that the Plaintiff should watch his words or he would offend the law.   Even Mr. Lam the staff of the Plaintiff said that the Defendant said words similar to that.    It was then that the Plaintiff stood up and said loudly to the Defendant words to the effect “why did you say to me  “你因住”.

19.  In my view, the evidence of the Plaintiff related to what transpired at the meeting after he began shouting cannot be of much weight, when faced with the denial of the Defendant and his witnesses that such words were uttered by the Defendant.    The reason is that the Plaintiff was shouting loudly and was obviously angry, agitated and upset, having worked himself up to fever pitch by all accounts, particularly by the account of Mr. Ip.  This showed that the Plaintiff must have been furious.    It is wholly unbelievable that a man who is shouting foul language in an increasingly loud tone is not angry and worked up emotionally.    In such an emotional state, he was agitated with the Defendant and his wife.    It would not have been easy for anyone in that emotional state to hear the words of the Defendant with accuracy and it is easy for him to mishear words.   Hence the evidence of the Plaintiff related to what was spoken by the Defendant in the light of denial by the Defendant and his witnesses is not reliable.   

20.  Despite considering the submissions of the Plaintiff’s Counsel on this I find the evidence of Mr. Lam is not reliable.  It was the Plaintiff who asked him to record the words.   Mr. Lam himself admitted that the Plaintiff told him to record that the Defendant said “因住”.    From the evidence of Mr. Lam, it is clear that the Plaintiff was strict on him.   The Plaintiff could not have been an easy man to work for as he had a foul temper and could scold and use foul language.    Hence, it is not surprising if Mr. Lam would be quite intimidated by the Plaintiff and would find it hard to say or do anything that is contrary to the wishes of the Plaintiff.   I find that the evidence of Mr. Lam, the staff of the Plaintiff is not reliable.   

21.  The minutes written by Mr. Lam is not evidence that could support the Plaintiff’s evidence as even according to Mr. Lam the Plaintiff told him to record that the Defendant said “因住”.    “因住” actually means,  “be careful”.    It is different from “你因住”.     “因住” if followed by other words could mean be careful of certain things.    There could be no implied threat in that.    I do not believe the Plaintiff’s allegation that the Defendant stood up and banged the table when he was alleged to have said,  “你因住”.    I find that the Plaintiff could not have been fearful or apprehensive of harm by the Defendant.   If he were, he would have ensured that he reported the incident to the Police immediately.   The documentary evidence from the Wanchai Police Station at page 91-2 showed that the written report by the Plaintiff’s solicitors to them was on 17 September 2003 over 13 days after the event.   Therein it was stated that Mr. Ma, the Plaintiff’s solicitor undertook to ask the Plaintiff to liaise with the Police so that they could properly initiate an investigation into the allegation.   The letter stated that Mr. Ng had never contacted them.   If the Plaintiff were fearful as he alleged, surely he would have contacted the Police Station directly.  

22.  I considered all the evidence and submissions of Counsel related to the credibility of the Defendant and his witnesses, I accept the evidence of the Defendant, his wife Ms. Chan, as truthful witnesses.    I find them to be reasonable people.   I also accept the evidence of the Defendant’s witnesses.    I find that the Defendant did not say the words “你因住”.    I find that the Plaintiff in his emotional state of agitation misheard words spoken by the Defendant and thought that he heard words like the words that he alleged was spoken.   Having seen the Defendant, he seemed to me to be a reasonable and a mild person and it is highly unlikely that he would have reacted with an implied threat against the Plaintiff.      

23.  I am of the view that the Plaintiff took this action out of spite rather than out of genuine fear for his safety for there could be no possibility of fear for his safety when the Defendant immediately after having been accused of having uttered the alleged words denied having uttered them.    It was the Plaintiff’s own attitude that brought on his own state of agitation that caused him to mishear and misunderstand what was said.   Furthermore, the Plaintiff refused the explanation from the Defendant and others that the Defendant did not utter those words.   He insisted on scolding the Defendant and subjected all those present to an outburst of his spleen.   In my view there is no excuse for such outrageous conduct.

24.  I find that even were the Defendant found to have uttered the words as alleged (which I find not to have been true), the Plaintiff simply could not have heard them as a threat, as immediately after he was accused of having uttered the words, the Defendant denied he spoke such words.  I find the Plaintiff could not have been frightened and did not have any credible evidence of any economic loss arising from the incident.

25.  Having found as I have in relation to the 1^st Issue, I do not have to consider the other issues. 

26.  I therefore dismiss the claim.   I grant an order nisi for costs of the action to the Defendant to be paid by the Plaintiff to be taxed if not agreed with Certificate for Counsel.