NG HIN CHUNG AND ANOTHER v. MOK POON KWONG AND ANOTHER<br>

HCA 60/2018

[2021] HKCFI 1470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 60 OF 2018

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D E C I S I O N

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1.  This is a case in defamation arising out of building management matters. The plaintiffs have, by summons, sought leave to amend the Statement of Claim and to file and serve the second supplemental witness statement of the 1^st plaintiff. This summons was taken out after leave was granted to set down by the master and just before the appointment to fix date for trial.

2.  In brief, the summons seeks to (1) remove the 2^nd plaintiff as plaintiff and remove the 2^nd defendant as defendant.  This would leave the action between a personal plaintiff and a personal defendant. There is no objection from the defendants and the defendants should get costs on this matter.

3.  The second part of the application is to amend the Statement of Claim and the second supplemental witness statement goes hand in hand with that.  The plaintiffs frankly admit that these two parts of the application arose due to change of counsel.  The supplemental witness statement needs to deal with matters arising out of the amendments and to answer some of the matters raised in the witness statements of the defendants. 

4.  I have considered the procedural history of this case.  To allow the amendments really puts the timetabling questionnaire and listing questionnaire procedure into ridicule.  This is because the plaintiffs’ solicitors have signed on the listing questionnaire, stating that their case was ready for setting down.  There was no interlocutory application indicated by the parties at that time although the master did not specify a time by which parties must take out interlocutory matters.  Accordingly, the master went forth to give directions for setting down.  The summons of the plaintiffs put the fixing of trial dates on hold.  This causes not only prejudice to the plaintiffs but also the defendants who have a counterclaim in defamation as well. 

5.  On the other hand, I have also taken into account the change in the parties.  By that, I mean the corporate plaintiffs and defendants will drop out.  As rightly pointed out by Mr Ng, counsel for the plaintiffs, the court’s main focus is the just resolution of dispute in accordance with the substantive rights of the parties.  The court, in exercise of its case management powers, balances the interests of both sides.  There will be no justice in retaining an unwilling plaintiff and waste everybody’s time over an outgoing defendant. 

6.  Arising out of the amendments would, of necessity, be a need to make adjustments to the witness statements already filed.  It is better assistance to the trial judge to do the adjustments now than closer to the PTR.  Counsel on both sides would need to properly chart their course ahead. 

7.  I have also taken into account the fact that trial dates are unlikely to be available within the next 12 months.  P1 has readily accepted that his amendments would give rise to the change in pleadings and witness statements and has offered to pay costs.  It is better, in my view, to clear up the position now. 

8.  I therefore exercise my discretion to allow the amendments and give the following directions:

(1)  There be leave to the 2^nd plaintiff to withdraw as plaintiff.

(2)  There be leave to the plaintiffs to withdraw their claim against D2.

(3)  There be leave to P1 to file and serve his Re-amended Statement of Claim within 7 days provided that the abbreviations in the past pleadings shall be retained.

(4)  There be leave to D1 to file and serve a fresh amended defence and counterclaim with the new parts marked up in yellow within 21 days thereafter.

(5)  There be leave to P1 to amend his reply within 21 days thereafter. 

(6)  There shall be inspection and service of supplemental list of documents within 21 days thereafter.

(7)  Consolidated witness statements of P1 and D1 shall be filed and served within 28 days thereafter.  Those parts that originated from the existing witness statements of P1 and D1 (and in the case of P1 from the draft supplemental witness statements as well) shall be in black ink.  Those parts that are arising from the amendments to the pleadings shall be in blue ink. 

(8)  There be leave to the parties to file and serve supplemental witness statements of other witnesses arising out of the amendments. 

(9)  All interlocutory applications shall be taken out within 28 days of the expiry of time for filing consolidated witness statements, failing which the parties shall be barred from taking out interlocutory applications. 

(10)  Leave to set down within 42 days for a trial before a judge without a jury.  The estimated trial days are 9.  The first 8 days shall be consecutive.  The last day shall be at least two weekends from the 8^th day. 

(11)  Costs of D2 shall be borne by the plaintiffs, to be taxed if not agreed, forthwith. 

(Discussion re costs of amendments and supplemental witness statements)

9.  On costs arising out of the amendments and the witness statements, I believe the court should send a very clear message to litigants that they should treat timetabling questionnaires and listing questionnaires with the greatest caution.  The court acts on those questionnaires.  The other party also is entitled to rely on those questionnaires to chart his course.  Where a party signs on a listing questionnaire to state that the case is ready for set down but subsequently changes its mind, it is only fair to the other party and in the light of the court’s indulgence to withhold the fixing of trials that costs should be borne by that party regardless of outcome of the trial. 

10.  I therefore direct that the costs of and occasioned by the 1^st plaintiff’s amendments to the Statement of Claim and the application to the filing of supplemental witness statement be to the 1^st defendant.  For the avoidance of doubt, such costs shall include but is not limited to the filing of amendments to the defence and counterclaim, filing of consolidated witness statements and further witness statements in answer to the amendments regardless of the outcome of the trial.

11.  There will be a certificate for counsel for today’s hearing.

(Queeny Au-Yeung) Judge of the Court of First Instance High Court

 

HCA 60/2018

[2019] HKCFI 1334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 60 OF 2018

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DECISION

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Introduction

1.  This is a defamation case.  On 18 May 2018, the plaintiffs took out a summons for an order striking out certain parts of the amended defence and counterclaim (“D&C”) filed by the defendants on the ground that those parts do not disclose any reasonable defence or any reasonable cause of action.  On 9 November 2018, after hearing the parties, Master J Wong dismissed the summons.  This is the plaintiffs’ appeal against the master’s decision.

2.  Before this appeal hearing, the defendants proposed to include the transcript showing the oral reasons for decision given by the master.  The plaintiffs disagreed, for the reason that the appeal hearing before me should be a de novo hearing.  I directed to include the transcript in the appeal bundle as a non-agreed item. In my view, the defendants are entitled to put the transcript in the appeal bundles as a reference material.  I am fully aware that the hearing before me is an actual rehearing as if the matter came before me for the first time, and nothing said by the master is binding upon me.  However, I am entitled to see the reasons given by the master.  After considering all the materials before me and the submissions made by the parties, if I agree with the reasons given by the master, I may adopt those reasons in my own judgment [1].

3.  I would first briefly set out the background of the case.

Background

4.  The 2^ndplaintiff is the registered owner of two units in a building known as International Industrial Building, Nos 501 – 503 Castle Peak Road (“the Building”).  The 1^stplaintiff (“Ng”) is the representative nominated by the 2^nd plaintiff to serve as an elected member of the Management Committee (“the MC”) of the Owners’ Incorporation of the Building (“the IO”).

5.  The 2^nddefendant is the registered owner of a unit in the Building.  The 1^stdefendant (“Mok”) is the representative nominated by the 2^nddefendant serving in the MC.

6.  The MC held a meeting on or about 31 October 2017 (“the meeting”).  The meeting was attended by, inter alia, Ng and Mok.  Mok was the chairman of the meeting.

7.  On or about 7 November 2017, the minutes of the meeting was posted on the wall of the lift lobby of the ground floor of the Building, inside the glass cabinet where documents of the IO were usually displayed [2].  The minutes were signed by Mok as the chairman of the MC.

8.  The plaintiffs claim that the minutes were published without their prior knowledge or consent, and the contents of which were not approved by the plaintiffs.  It is the plaintiffs’ case that the minutes contain the following defamatory words injuring the plaintiffs’ respective reputations:

 

“關於現時4A及4B單位正在進行的平台還原工程期間，不斷有業主投訴香港政府的多個部門，有「環保署」、「勞工處」、「屋宇署」及「警務署」派人員到4A及4B單位作檢查、等等。2樓業主伍顯中先生自認是投訴人，原因是關心有關工程。多位委員指出：這項平台還原工程是根據「屋宇署」命令依法進行，並得到「屋宇署」批准展開工程；業主也聘請了「專業結構工程師 / 認可人」為工程顧問，還原工程進度表也提交法庭存案。伍先生是知道上述的安排，是知道這些安排是比一般工程還要嚴格，伍先生是不應該如此刁難，刻意阻礙工程進度，莫主席指出伍先生的行為，實則是為了今屆的法團主席選舉錯敗而公報私仇”

 (“the Words” and “the Underlined Words” respectively).

9.  In response to the plaintiffs’ claim, the defendants have filed the D&C.  The plaintiffs say that some parts of the defence do not disclose any reasonable defence to the plaintiffs’ claim, and the part concerning “the 2^nd Words of CC” in the counterclaim [3] does not disclose any reasonable claim.  The defendants disagree.

The principles

10.  It is trite that a striking-out order would only be made in plain and obvious cases.  Disputed facts were to be taken in favour of the respondent in the striking-out application.  The claim or the defence must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim or the defence to succeed before the court will strike it out [4].

11.  Since the plaintiffs are only seeking to strike out parts of the D&C, whether those parts constituting any reasonable defence or counterclaim should be viewed in the context of the whole pleadings, and those parts should not be considered in isolation as if they were self-‌contained matters [5].

12.  Those parts of the D&C under challenge can be divided into four categories, which are as follows:

 (1) §§4, 5, 6 and the words of “and the Practice is repeated” in §7(1);

 (2) the 2^nd sentence of §11(3);

 (3) §12(8); and

 (4) §§37 to 41, and the words of “and the 2^nd Words of CC” in §§42 and 43, and the prayers related thereto.

13.  I will deal with each category in turn in the paragraphs below.

Category 1

14.  The pleas in category 1 concern an alleged practice (“the practice”) suggested by the defendants, which is as follows:

 (1) As required by the Building Management Ordinance (“the BMO”), each MC meeting has to be recorded by way of minutes.

 (2) The management company appointed by the IO has the responsibility of taking minutes and preparing a draft, which would be tabled before the MC in its next meeting (which would normally be held three months afterward) for formal approval.

 (3) However, under the BMO, the secretary of the MC shall display minutes of a particular MC meeting certified by the person presiding over that meeting in a prominent place in the Building within 28 days after the date of that MC meeting, and cause the minutes to be displayed for at least seven consecutive days.

 (4) Members of the MC generally do not have time to consider and approve the draft minutes within the said 28-day period, nor would they advance a MC meeting for the sake of approving the draft minutes only.  Certification by the chairman and display by the secretary have to take place before the next MC meeting.  It is well understood by members of the MC that if they have different views on the accuracy of the draft, they can raise their views in the next MC meeting.

 (5) In the process of certification, the chairman of the MC would try his best to consider the accuracy of the draft.  At times, the chairman may consult some members of the MC.

15.  In their defence, the defendants deny that the 2^nddefendant has any participation in the publication of the minutes.  Further, the defendants claim that the publication of the minutes by Mok was done in accordance with the practice, and the minutes were posted on the wall opposite to the glass cabinet mentioned by the plaintiffs in their statement of claim.

16.  Having considered the submissions made by Mr Frederick Chan for the plaintiffs and the submissions made by Mr Lewis Law (together with Ms Jacquelyn Ng) for the defendants, in my view, the pleas in this category should not be struck out.

17.  On the facts pleaded by the parties in their respective pleadings, as to whether the 2^nddefendant has any participation in the publication of the minutes, I am of the view that this is an arguable issue.  If the practice alleged by the defendants is true, arguably, the 2^nd defendant may have no participation in the publication of the minutes.

18.  In relation to Mok, the practice pleaded by the defendants is relevant to the defence of qualified privilege put forward in §§28 to 31 of the D&C.  In respect of qualified privilege, in Jonathan Lu v Paul Chan Mo Po [6], Lord Reed NPJ said:

“ 13. The logical starting point in considering malice is the concept of qualified privilege. Privilege is a defence to an action in defamation. In its application to defamatory statements of fact (it is unnecessary in this appeal to consider its application to fair comment on matters of public interest), it attaches to occasions when the law recognises a need for frank and uninhibited communication which outweighs the need to protect reputation. Sometimes the need for uninhibited expression is of such a high order that the occasion attracts absolute privilege: that is to say, the defence to an action in defamation admits of no exceptions or qualifications. More usually, the privilege is qualified, in that it can be defeated if the plaintiff proves that the defendant was actuated by malice.

14. Many common situations are privileged. There is no closed list of categories. The underlying principle was explained by Lord Atkinson in Adam v Ward [1917] AC 309, 334:

… a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes the 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 made has a corresponding interest or duty to receive it.

Occasions of this kind have traditionally been described in terms of persons having a duty to perform or an interest to protect in making the communication in question.  In determining whether, applying that principle, an occasion is privileged, the court has regard to all the circumstances.  As Lord Nicholls of Birkenhead observed in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 195, the circumstances must be viewed with today’s eyes: ‘the circumstances in which the public interest requires a communication to be protected in the absence of malice depend upon current social conditions’.”

 ( Emphasis added)

19.  In my judgment, the alleged practice is certainly relevant in deciding whether the minutes were published in an occasion protected by qualified privilege.  The defendants may make out a defence to the plaintiffs’ claim if the alleged practice is true.

20.  I decline to strike out the pleas in category 1.

Category 2

21.  §11(3) of the D&C reads as follows:

“ … In particular, Ds say the meanings of the Words and the Underlined Words are that:

(3)   [Ng] embarked upon such unreasonable complaint to air his unhappiness about [Mok] winning the election of MC chairmanship.  It was not a genuine concern about the legality/progress of the reinstatement works at Unit 4B, as he could have made use of the litigation mechanism (which he did use and has been in progress) or the internal mechanism of IO/MC to enquire about the progress and express his disagreement with the legality/progress of such works.” 
 (sentence challenged by the plaintiffs underlined)

22.  In my view, §11(3) of the D&C, including the part under challenge, is relevant to the defence of justification put forward by the defendants.

23.  In Mak Shiu Tong v Yue Kwok Ying & Another [7], Ribeiro PJ said:

“ 18. A plea of justification must relate to the words which are complained of. A defendant who relies on the defence must show that the defamatory imputation conveyed by those words is true.

19. Accordingly, in advancing a plea of justification, the defendant necessarily takes a view as to the meaning of the words complained of. His case is that the words so understood are true. Similarly, in relation to the defence of fair comment,the defendant contends that the words so understood contain honest comment on a matter of public interest based on facts which are true. It is therefore necessary, in assessing the viability of these defences, to identify the defamatory meaning or meanings sought to be justified or made the subject of fair comment.

…

22. … A defendant is entitled to seek to justify any reasonablemeaning of the words published which a jury, properly directed,might find to be the real meaning: Prager v Times NewspapersLtd [1988] 1 WLR 77 at p.86. And, ever since the Lucas-Box decision, his pleadings must make it clear what meaning he is seeking to justify.

23. This was re-iterated by May LJ in Morrell v InternationalThomson Publishing Ltd[1989] 3 All ER 733 at pp.737–738, in the following terms:

… the position now is that a defendant who pleads justification must do so in such a way as quite clearly, without circumlocution or obfuscation, to inform the plaintiff and the court of precisely what meaning or meanings the defendant may seek to justify. Although this may be done in the particulars of justification, there is then a substantial risk that the precise meaning will be lost in words. I see no reason why the meaningor meanings should not be set out directly, briefly and at the start of the plea. That, in my opinion, is the result of the authorities referred to and should be the practice followed in the future.” (Emphasis added)

24.  Thus, it is clear that a defendant pleading justification as a defence to a defamatory claim has to set out the meaning to be justified by him in his own pleading.  Here, the defendants have pleaded that the meanings of the Words and the Underlined Words under complaint are those set out in §11 of the D&C, and particulars of the justification (including matters concerning Unit 4B) are given in Section B of the D&C.  In my view, the sentence under challenge in §11(3) of the D&C is an arguable issue and is part of the defence of justification put forward by the defendants and ought not be struck out.

Category 3

25.  §12(8) of the D&C concerns the alleged bad reputation of Ng in the Building.  Mr Chan submits that only general bad reputation of a plaintiff may be pleaded as a defence to a defamatory claim, but specific acts of misconduct tending to show a bad character cannot be pleaded.  Mr Chan submits that the plea in §12(8) has offended this principle.  Mr Law submits that all the events pleaded in that paragraph are events concerning the Building, and are relevant for the purpose of determining Ng’s reputation in the Building.

26.  In my view, the answer on this issue can be found in the Court of Appeal’s decision in Excel Concrete Ltd v The Concrete Producers Association of Hong Kong Ltd [8], in which Lam VP said:

“ 29. The Judge did not rule out the possibility of a single notorious event as evidence of general bad reputation. Her discussion of admissibility of para 4 by reference to the Bursteinapproach is premised upon her view as set out at para 66 of the judgment:

‘ … In my view, despite Mr Huggins SC’s skilful persuasion, the pleas as to the ‘Short-Piling Scandal’ and the ICAC arrests in respect of the project-fee inflation scam are not averments of general bad character, but are allegations of particular acts of misconduct which fall outside the general exclusionary rule. Further, insofar as they relate to facts and matters in respect of the short-piling fiasco and the project-fee inflation scam (which pertain to construction works), it is doubtful whether they relate to the relevant sector of the plaintiff’s reputation (which pertain to the production and supply of concrete, i.e. construction material, which is a different line of business).’

30. The last part of this paragraph is a matter of common sense and well-supported by authority. In Plato Films[9], Lord Denning said at p.1140:

‘ When evidence of good or bad character is given, it should be directed to that sector of a man’s character which is relevant.  Thus, if the libel imputes theft, the relevant sector is his character for honesty, not his character as a motorist.  And so forth.  It is for the judge to rule what is the relevant sector.’”

27.  According to the plaintiffs’ case, the Words and the Underlined Words are in the minutes published in the lobby of the Building.  In other words, the minutes have been published to the owners and occupants of the Building.  That being the case, the relevant sector of Ng’s reputation in this case is his reputation within the Building.  In my view, the events pleaded in §12(8) are relevant to Ng’s reputation inside the Building and are relevant pleas.  I decline to strike out §12(8) of the D&C.

Category 4

28.  Category 4 is the counterclaim mounted by Mok against Ng. The relevant pleas in the D&C are as follows:

“ 37. On or around 7 November 2016, P1 wrote and caused to be published the following words, contained in an open letter. The words specifically underlined will be referred to as ‘the 2^nd Words of CC’:

‘ 5. …本人樂意接受任何人對本人持有物業提出改善意見、甚至莫主席的報復性惡意指控，本人都會認真對待，謹慎處理。’

38. The open letter ended with P1’s full name (‘伍顯中敬上’). It was inserted into the post box of every owner of the Building, including Ds’.

39. The 2^nd Words of CC referred to and were understood to refer to D1 by its references to ‘莫主席’, the reference to ‘莫泮光先生’ in paragraph 4 of the open letter, and the open letter’s status as a written response to a letter titled ‘主席的解話’ issued by D1 on 13 October 2016.

40. In its natural and ordinary meaning, the 2^nd Words of CC, ‘D1’s allegations with malice and vengeance’, referred to the contents of the said ‘主席的解話’, which was attached to an email to all owners of the Building dated 13 October 2016, the gist of which being:

(1) P1 was MC’s Vice-chairman from 2009 to 2015, during which period he had never complained about the unauthorized building works at Unit 4B of the Building, which had existed before that period;

(2) The background of the December 2015 AGM and MC Chairman election was given, and from the election result one would be clear who had the trust of the owners of the Building;

(3) Before and after the December 2015 election, P1 had instituted the Withdrawn SCT Action and requested for convening an AGM at an interval of 40 odd days;

(4) P1 and his family used one parking space to park more than one car out of greed;

(5) P1 allowed the unauthorized building works in his own (P2’s) premises at 11^th Floor of the Building to exist. This move endangers residents and makes it difficult for firefighters to carry out their jobs should the need arise. This problem had persisted for 10 years but P1 had refused to correct it. At the same time, P1 complained against the unauthorized building works of others; and

(6) P1 attempted to install a private alarm system in the public area at the lobby of the Building, also out of greed.

41. The contents of the said ‘主席的解話’ were true and fully justified by facts.  However, P1, by publishing the 2^ndWords of CC, falsely accused such contents as D1’s ‘allegations with malice and vengeance’ against P1.  The 2^nd Words of CC were untrue and defamatory of D1.”

29.  The essence of Mr Chan’s submissions are summarized in paragraph 41 of his written submissions, which is as follows:

“ 41. Put it bluntly, the 13^th October Email could not be lumped together with the 7^th November Letter (and the 2^nd Words of CC) by way of a plea on false innuendo as it would offend the basic pleading rules on how to plead a false innuendo (on the natural and ordinary meaning of the words being complained of as being defamatory). A reasonable reader (who notionally only has general knowledge, upon reading the 2^nd Words of CC (as they had been extracted from the 7^th November Letter) alone would not be in a position to get and thus appreciate the alleged defamatory meaning now pleaded by the 1^st Defendant under the Counterclaim for the obvious reason—he or she would have no clue on what the 2^nd Words of CC were referring to in terms of ‘莫主席的報復性惡意指控’. A reasonable reader from the HKSAR would have no relevant and general knowledge whatsoever of the13^thOctober Email issued by the 1^st Defendant to all owners ofthe Building. Certainly, the 13^th October Email could not have attained the level of general notoriety or knowledge amongst the reasonable readers of the HKSAR.” (Emphasis added)

30.  With respect to Mr Chan, I am unable to accept these submissions.

31.  The principles concerning pleading innuendos are summarized in Gatley on Libel and Slander (12^thedition), §26.23:

“ Pleading innuendoes

Where the claimant relies on an innuendo meaning, he must plead particulars of the facts and matters on which he relies in support of that sense. These facts or matters will generally incorporate either a special definition of the words known only to a limited class of persons (such as slang or technical terms) or facts extrinsic to the libel which, if known about, affect the way the words complained of are understood. In either case, the claimant must identify the person or personsto whom the words were published and who are alleged to have had knowledge of the special meaning of the extrinsic facts. In default of compliance with the requirements for pleading innuendo meanings, the pleaded meaning may be struck out.” (Emphasis added)

32.  It has been pleaded in the counterclaim that:

 (1) the 2^nd Words of CC are contained in an open letter from Ng to every owner of the Building;

 (2) the 2^nd Words of CC are referring to Mok and his email to all owners of the Building dated 13 October 2016;

 (3) the gist of the email dated 13 October 2016; and

 (4) the contents of the email are true and justified by facts. 

33.  It is not the defendants’ case that the 2^ndWords of CC were published in newspapers widely circulated in Hong Kong or on any internet platform.  The defendants have identified that the 2^ndWords of CC were published to the owners of the Building. A reasonable reader of those words therefore would not be anyone in Hong Kong, but would be an owner of the Building.  The defendants have also explained why the owners of the Building have had the requisite knowledge (ie the email dated 13 October 2016) so that they would understand the meaning of the 2^ndWords of CC.

34.  In my view, all the material facts concerning pleading an innuendo are contained in the counterclaim.  There is no reason justifying the striking out of the counterclaim.

Disposition

35.  For the reasons above, I do not agree that any plea under the four categories mentioned above should be struck out.  Accordingly, the appeal must be dismissed.  I dismiss the plaintiffs’ appeal.

36.  I have heard submissions on costs.  In my view, costs should follow the event.  Mr Law does not seek a certificate for two counsel.  I order that costs of the appeal be to the defendants, and those costs be summarily assessed at HK$100,000.

37.  Lastly, it remains for me to thank counsel for their helpful assistance rendered to the court.