YIP WAI TAK VIVIAN v. LEE KA WO ESMOND AND OTHERS

DCCJ 4923/2019

[2023] HKDC 551

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4923 OF 2019

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BETWEEN

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DECISION

(Paper Disposal)

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Background

1.  Judgment was handed down on 16 February 2023 (“the Judgment”). I shall adopt the same abbreviations and nomenclatures in the Judgment.

2.  This Court has, in the Judgment, dismissed P’s claims against D1 and D2, with a costs order nisi against P that P do pay costs of D1 and D2, with Certificate of Counsel, to be taxed if not agreed.

3.  On 2 March 2023, P took out summons seeking leave to appeal against the Judgment, that the Judgment be set aside and there be a retrial of all issues before a different Judge (“P’s Summons”).

4.  On the same day, written submissions were filed on behalf of D1-D2 for an application to vary the costs order nisi, to the effect that costs be on indemnity basis. Such application is consented to by P.

Leave to Appeal

5.  Under Section 63A (2) of the District Court Ordinance, Cap 336 (“DCO”), leave to appeal shall not be granted unless the court is satisfied that:

(a) The appeal has a reasonable prospect of success; or

(b) There is some other reason in the interests of justice why the appeal should be heard.

6.  Le Pichon JA in SMSE v KL [2009] 4 HKLRD 125 stated at §17 that “reasonable prospects of success involve the notion that the prospects of succeeding must be reasonable and therefore more than fanciful, without having to be probable”.

P’s Proposed Grounds of Appeal

7.  There are 8 grounds as set out in P’s Summons. Mr. Lam for P and Mr. Carolan for D1 and D2 have in their written submissions grouped the Grounds as follows:

Ground 1 & 2; Ground 3; Ground 4; Ground 5-7 and Ground 8

Grounds 1 & 2

8.  Grounds 1 & 2 concern the section of the Judgment on Defamation.

9.  Ground 1 reads:

“The Learned Judge erred in law, in her determination of meanings, by misunderstanding or misapplying the “hypothetical reader” test. She took inadmissible opinion evidence into account (§38 to §41), not realizing documents in a trial bundle can be admissible for one purpose but not another. She ignored, or failed to appreciate the full significance of, D1-D2’s own admission that the words in question did carry defamatory meanings (§76 to §78). The Learned Judge also erred in law when she failed to appreciate the Plaintiff did not have to prove all of her pleaded defamatory meanings. Putting it differently, the Learned Judge erred in law when she failed to appreciate the Plaintiff could succeed in the Action for as long as she could prove at least one of her pleaded meanings.”

10.  Ground 2 reads:

“The Learned Judge erred in law, in her ruling as to whether the words in question were defamatory, by effectively requiring the Plaintiff to adduce evidence on the actual effects of the words in question (§85 to §87), when the correct position in law was that evidence of that nature could never be given or received for that purpose. The Learned Judge erred in law when she failed to appreciate it was trite law, since at least Hung Yuen Chan Robert v Hong Kong Standard Newspapers Ltd [1996] 4 HKC 519 (at 526-G, per Le Pichon J, as she then was) that “whether the words complained of are defamatory is a question of construction and not of evidence”. In any case, the words, being a very serious accusation of sporting misconduct, were plainly defamatory, and there was no or insufficient basis for the Learned Judge to rule otherwise in the manner as she did. See also:

2.1 Chow Wing Kai v Liang Jing [2021] 2 HKLRD 1189 (§34, per HHJ Kent Yee).

2.2 Tsang Po Mann v Tsang Ka Kit [2021] 1 HKLRD 1301 (§14, per HHJ Kent Yee).

2.3 Gatley on Libel and Slander (13^th Edition, 2022, p.63, §2-034).

2.4 Clement v Chivis (1829) 9 B & C 172.”

11.  In short, P says that this Court relied on DP’s findings and wrongly took into account evidence (rather than as a matter of construction) in arriving at its conclusion that the Words are not defamatory.

12.  As detailed under §36 to 41 of the Judgment, the findings of the DP were considered in relation to the justification defence.

13.  This Court has put itself in the position of the hypothetical reader, who is taken to be the representative who would read the publication in question, in construing the meaning of the Words.

14.  As held by Lok J in Multi-Winner Investment Ltd. v Lau Ming Yee [2017] 1 HKLRD 328, the Words in the 1 February Email must be taken as a whole, and the context and circumstances of the Word must be taken into account: §32-34 Judgment.

15.  It is in this sense that evidence was considered by the Court to ascertain the context and circumstances of the Words so as to construe the meaning: §43-63, 65-78 & 81-82 Judgment. This Court did not reach its conclusion by reference to P’s failure to adduce evidence to prove the actual effect of the Words.

16.  Mr. Lam argued that Judgment could be entered against D1-D2 by what they have pleaded in their Defence, as held by Poon Hau Kei v Hsin Chong Construction Co Ltd (2004) 7 HKCFAR 148.

17.  Regarding the alleged admissions by D1-2 on the defamatory meaning of the Words, Mr. Carolan clarified that they were not admission of the meanings as pleaded by P.

18.  In any event, reading the 1 February Email as a whole, this Court found that it was not defamatory.

19.  Further, as pointed out by Mr. Carolan, there is no challenge to the Court’s findings in this respect.

20.  I do not see that P has any reasonable prospects of success for Grounds 1 & 2.

Ground 3

21.  Ground 3 deals with the section on Qualified Privilege and Malice:

“The Learned Judge erred in law, in her determination of qualified privilege and malice, by adopting Horrocks v Lowe [1975] AC 135 as the alleged “leading authority” (§93) on these issues, when the “leading authority” on these issues was in fact Jonathan Lu v Paul Chan Mo Po (2018) 21 HKCFAR 94, and/or by failing to consider what was said by Lord Reed NPJ in Jonathan Lu altogether. Most importantly, since the Learned Judge failed to appreciate the leading authority on these issues was plainly the 2018 case of Jonathan Lu instead of the 1975 case of Horrocks, the Learned Judge failed to carry out the two-step analysis repeatedly emphasized by Lord Reed NPJ in Jonathan Lu v Paul Chan Mo Po (2018) 21 HKCFAR 94 (§17 & §31).”

22.  Mr. Lam emphasized that the leading authority on Qualified Privilege was not Horrocks v Lowe [1975] AC 135 but Jonathan Lu v Paul Chan Mo Po (2018) 21 HKCFAR 94 where Lord Reed NPJ emphasized that in all cases where qualified privilege and malice are pleaded issues in dispute, a two-step analysis is “necessary”.

23.  The “two step analysis” is as follows:

“First, was the occasion privileged, and if so, for what purpose? Secondly, was that the defendant’s purpose when he published the communication in question? The first of these is a question of law for the judge. The second is a question of fact, to be determined by the jury…”

24.  Mr. Carolan pointed out that Horrocks remains the leading authority on the issue in the common law world. Lu v Chan is simply a more recent application of that authority by the CFA in Hong Kong. Horrocks was applied and followed by Lord Reed in Lu v Chan.

25.  Clearly, Lord Reed did in fact apply, and elaborate, the principles in Horrocks. There is no point in arguing which is “the leading authority” in this area of law.

26.  While the Judgment did not refer to Lu v Chan, the Court did in effect undergo the same process as the “two-step analysis”, which in essence is no different from what was laid down in Horrocks: §90-92 and §111-120 & 123.

27.  I do not see any reasonable prospects of success for this Ground.

Ground 4

28.  Ground 4 reads:

“The Learned Judge erred in law, in her determination of qualified privilege and malice, when she misread and misunderstood (§96) Qadir v Associated Newspapers Ltd [2013] EMLR 15 [2012] EWHC 2606 (QB) as establishing the legal test of malice as “sole and dominant purpose to harm”, when that judgment said no such thing. What was decided in Qadir was that malice was, quite simply, the misuse of an occasion so that just pleading a litigant “misused the occasion” was a good enough plea of malice (§191, per Tugendhat J), and that on the facts there was malice (§256, per Tugendhat J).”

29.  The section on Qualified Privilege and Malice starts from §88 to 126 of the Judgment with the relevant legal principles stated in detail. §96 should not be read in isolation.

30.  Further, it is clear that P did not plead any particulars of malice in ASOC and no positive evidence of malice on the part of D1-D2 was present: §103-4. This Court was asked to find malice by inference from D1’s evidence, and no malice was found.

31.  I do not see that P has any reasonable prospects of success for this Ground.

Grounds 5-7

32.  These Grounds concern the sections on Breach of Confidence and Misuse of Private Information.

33.  Ground 5 reads:

“The Learned Judge erred in law, in her determination vis-à-vis the Plaintiff’s “breach of confidence” claim (§143 to §147), when she failed to realize the Plaintiff did identify the information in question in her ASoC (§31 & §32), and that D1-D2 had, by their Amended Defence (§14 & §21), admitted the 1^st February 2019 Email was “implicitly confidential”. The Learned Judge then made another error of law when she failed to consider or analyse whether D1-D2’s disclosure of confidential information (namely, the fact that there was a complaint against the Plaintiff, and the details of such a complaint) to Cyril Leung and Howard Poon was “unauthorized” in the sense as contemplated by the Court of Appeal in Shenzhen Futaihong Precision Industry Co Ltd & Ors v BYD Co Ltd & Others [2019] 2 HKC 175 (§85), and mixed up the concept of “unauthorized use” for the purposes of a “breach of confidence” claim with the test of “interest in receiving the words in question” for the purposes of a “libel” claim.”

34.  Ground 6 reads:

“The Learned Judge erred in law, in her determination vis-à-vis the Plaintiff’s “reasonable expectation of privacy”, by in effect suggesting since the Game itself was public, the fact of a complaint of sporting misconduct having been made against the Plaintiff must also be public (§150), when the correct position in law was the exact opposite – see, e.g., ZXC v Bloomberg [2022] 2 WLR 424 (§114 to §116, §140 & §146).”

35.  Ground 7 reads:

“The Learned Judge erred in law, in her determination vis-à-vis the Plaintiff’s “reasonable expectation of privacy”, by in effect suggesting since what was done on 25^th April 2019 was public, what was done on 1^st February 2019 (i.e., much earlier in time) must also be public (§151 to §155), when the correct position in law was the exact opposite – see, e.g., ZXC v Bloomberg [2022] 2 WLR 424 (§146). As of 1^st February 2019, the fact that the Plaintiff was under sporting misconduct investigation was private. Upon her conviction being widely published by the 3^rd Defendant on 25^th April 2019, that information had of course ceased to be private. The fact that a piece of information ceased to be private does not mean it was never private at any earlier point in time. The Learned Judge’s reasoning went into error, and was flawed, when she failed to appreciate there was a huge difference between the situation pre-conviction, and the situation post-conviction, on this issue.”

36.  As stated under §141-142 of the Judgment, P’s case is that Cyril Leung and Howard Poon should not be sent the 1 February Email.

37.  P did not identify information having the necessary quality of confidence about it nor has she shown how it was imparted in circumstances importing an obligation of confidence: §146 Judgment. P’s pleaded case is simply that Cyril Leung and Howard Poon were not “persons strictly necessary for determining the complaint”.

38.  As for the claim for Misuse of Private Information, no material facts are relied on apart from those pleaded under ASOC: §149 Judgment.

39.  These 2 heads of claims were non-starters.

40.  There are no reasonable prospects of success for these Grounds.

Ground 8

41.  Ground 8 reads:

“The above demonstrated, individually or cumulatively, that just like the situation in Leung Chi Ching Candy v Yeung Hon Sing [2021] 5 HKLRD 684 (§73 to §79, per Kwan V-P), irrespective of whether the Learned Judge had stated some of the relevant legal principles correctly or not, it was plain the Learned Judge failed to apply the relevant legal principles correctly, and there were flaws in her reasoning. As such, this is an appropriate case for the Court of Appeal to exercise its discretion to order a re-trial.”

42.  Given my decisions above, Ground 8 has no reasonable prospect of success.

Conclusion

43.  The proposed Grounds advanced by P are based on selective reading of the Judgment. There can be no ambiguity if the Judgment is read in full.

44.  As pointed out by Mr. Carolan, no challenge to the Court’s findings in respect of the witnesses’ testimony (§43-63, 71-72 & 81-82 of the Judgment) is raised.

45.  The proposed Grounds are unmeritorious and there are no reasonable prospect of success. I also do not see any other reason in the interests of justice that appeal should be heard.

46.  P’s Summons is therefore dismissed.

47.  There is no reason for costs of this leave application not to follow the event, which Mr. Lam conceded.

48.  I am asked to summarily assess costs by reference to the Statement of Costs submitted by D1-D2 on 27 March 2023.

49.  Mr. Carolan submitted that costs should be on indemnity basis as the Grounds advanced by P are devoid of any reasonable prospect of success and are fanciful.

50.  Also, as P has consented to costs of the action to be on indemnity basis, there is no reason why it should not be the same for the leave application by P.

51.  Apart from contesting that certain items in the Statement of Costs are excessive, Mr. Lam did not make any other submissions in relation to costs.

Indemnity Costs

52.  The Court of Final Appeal in Town Planning Board v Society of Protection of the Harbour Ltd (2004) 7 HKCFAR 114 held:

“16. The courts have rejected the proposition that an award of indemnity costs will only be made where a case has been brought with an ulterior motive or for an improper purpose or where there is some deception or underhand conduct on the part of the losing party.

17. In these and other cases, courts have emphasised the undesirability of attempting to define the circumstances in which orders for indemnity costs are to be made. It has been said that:

…... the discretion is not to be fettered or circumscribed beyond the requirement that taxation on an indemnity basis must be “appropriate”.

18. Neither statements of principle nor authority provide any support for the Board's proposition that the attributes of the parties and the character of the proceedings are irrelevant to the exercise of the discretion to award indemnity costs. In relation to the award of costs generally, it has been accepted, as Chu J pointed out, that while:

…... the grounds [upon which costs are awarded] must be connected with the case. This may extend to any matter relating to the litigation and the parties’ conduct in it, and also to the circumstances leading to the litigation, but no further.

(Scherer v Counting Instruments Ltd [1986] 1 WLR 615 at p. 621F, per Buckley LJ). There is no reason why this statement does not apply with equal force to the exercise of the discretion to award indemnity costs.”

(emphasis added)

53.  The above principles are summarized and further elaborated by the Honourable Lam J (as then was) in Cheung Wei Man Vivien & Chan Kim Thiam v Centaline Property Agency Ltd and Others, HCA 286/2000:

“The applicable legal principles on award of costs on indemnity basis are not in dispute. They are encapsulated in the judgment of the Chief Justice in Town Planning Board v Society for Protection of the Harbour Ltd (No.2)

(a) The discretion to award costs on indemnity basis is unfettered and is not limited to circumstances where a case has been brought with ulterior motive or for improper purpose or where there is deception or underhand conduct on the part of the losing party;

(b) In considering whether indemnity costs is to be awarded, the court may consider any matter relating to the litigation and the parties conduct in it and also circumstances leading to the litigation.

Further, conducts leading to unreasonable escalation of costs is a relevant factor to be taken into account, particularly when such conduct leads to substantial increase in costs. In Macmillan Inc v Bishopgate Investment Trust Ltd, Millett J (as he then was) referred to costs “incurred irrationally or out of all proportion as to what is at stake” (endorsed by the Court of Appeal in Sung Foo Kee Ltd v Pak Lik Co [1996] 3 HKC 570). Counsel also brought to this court’s attention other illustrations of award of indemnity costs by reason of unreasonable escalation of costs: Tonkin v UK Insurance (No.2) [2006] EWHC 1185 (TCC); NLA Group Ltd v Bowers [1999] 1 Ll Rep 109 at p.113.

It is also useful to remind ourselves what Simon Brown LJ said in Liam v MGN Ltd (No.2) [2002] 1 WLR 2810 at Paras.11 and 12 in considering whether the conduct of a losing party is so unreasonable so as to warrant an award of indemnity costs. In particular, at Para.12, His Lordship observed, “I for my part understand the court there to have been deciding no more than that conduct, albeit falling short of misconduct deserving of moral condemnation, can be so unreasonable as to justify an order for indemnity costs. With that I respectfully agree. To my mind, however, such conduct would need to be unreasonable to a high degree; unreasonable in this context certainly does not mean merely wrong or misguided in hindsight.”…”

(emphasis added)

54.  More recently, HH Judge KW Wong has succinctly summarized the principles for indemnity costs in Leung Wing Sze Wins & other v Li Oi Lam otherwise known as Sara Li & other, DCCJ-2022/2014 :

“49. The CFA’s decision in Town Planning Board (No. 2) (supra) remains the leading authority on how justice can be attained by awarding an indemnity costs. The principles have been referred to with approval in subsequent CFA decisions, e.g. Leung Chun Kwong v Secretary for the Civil Service[2019] HKCFA 34 and Commissioner of Inland Revenue v Poon Cho-ming, John[2020] HKCFA 2.

50. In the recent decision of Poon Cho-ming (supra), Hon Bokhary NPJ has helpfully distilled a summary of the propositions derived from of Town Planning Board (No. 2) (supra) at [4]:

“4. (a) In certain circumstances, costs may be awarded on a more generous than usual basis of taxation so as to achieve a fairer result.

(b) It is for the receiving party to show that the case has some special or unusual feature.

(c) Such features are not confined to an ulterior motive, an improper purpose, deception or underhand conduct on the part of the paying party.

(d) Neither the attributes of the parties nor the character of the proceedings are irrelevant to the question of whether a more generous than usual basis of taxation should be ordered.

(e) The discretion to order a more generous than usual basis of taxation is not to be fettered or circumscribed beyond the requirement that such taxation be ordered only when it is appropriate to do so.

(f) As to that, the grounds on which a more generous than usual basis of taxation is to be ordered must be connected with the case. That extends to - but no further than to - any matter relating to the litigation and the parties’ conduct in it, and also to the circumstances leading to the litigation.”

……

56. In Sung Fook Kee Limited (supra), the CA considered indemnity costs should appropriately be granted in cases with special or unusual features, including

(i) cases where there was deception or underhand conducts;

(ii) litigation that was ill-advised or stupidly or bitterly conducted;

(iii) cases conducted in such a way where a sense of considerable injustice could be felt if costs had been whittled away down to the costs on a standard basis;

(iv) cases brought with ulterior motive or for an improper purpose;

(v) cases conducted in bad faith or as a personal vendetta;

(vi) cases conducted in an improper or oppressive manner; and

(vii) cases that have caused costs to be incurred irrationally or out of proportion as to what is at stake.”

(emphasis added)

55.  Given my observation on the proposed Grounds above, this is an appropriate case to order costs on indemnity basis.

56.  Further, as highlighted by Mr. Carolan in his written submissions for variation of costs order, P's conduct in this litigation does qualify as “unusual” or “special” which warrants a more generous than usual basis of taxation.

Summary Assessment on Costs

57.  Having considered the Statement of Costs and the objections by P, I order costs to be paid by P to D1-D2, with Certificate for Counsel, summarily assessed at HK$100,000.00.

Mr Kenneth K Y Lam, Ms Angela Mui and Colette Wong, instructed by Alex To & Co, for the plaintiff

Mr Paul Carolan, instructed by Boase Cohen & Collins, for the 1^st and 2^nd defendants

DCCJ 4923/2019

[2023] HKDC 174

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4923 OF 2019

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JUDGMENT

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Background

1.  It is common ground that from around 2014 to 30 November 2018, the Plaintiff (“P”) was a player of the Lawn Bowls Section (“LBS”) of Hong Kong Football Club (“HKFC”) i.e. the 2^nd Defendant (“D2”) and its junior associate member. In December 2018, P joined Craigengower Cricket Club (“CCC”) and played for CCC.

2.  At all material times:

(a)  D2 and CCC were rival teams in the Hong Kong Lawn Bowls League, and were both member clubs of the Hong Kong Lawn Bowls Association, the 4^th Defendant (“D4”);

(b)  D1 was the deputy chairman of the LBS and also D2’s convenor to D4;

(c)  D3 was the president of D4 and the chairman of D4’s Disciplinary Panel (“DP”);

(d)  P was the head coach of Simply Bowls Institute Limited (“SBI”) and a director of Ikubo Bowls Lab Limited (“IBL”); both SBI and IBL were also run by Dorothy Yu, P’s partner.

3.  On 19 January 2019, a Ladies League lawn bowls match took place between CCC and D2 at D2’s indoor venue (“the Game”), in which P played for CCC.

4.  After the Game, some of D2’s players complained about P’s behaviour at the Game and reported to D2’s LBS Committee, leading to D1 sending out an email dated 1 February 2019 (“the 1 February Email”). The Email was drafted by Terence Lee of D2 which was eventually approved and sent out by D1.

5.  Below is a brief chronology of events:

15.09.17	HKLBA’s letter to P re P’s Facebook post on 19.08.17, that P was found in breach of HKLBA Bye-Laws and was subject to reprimand for 2 years
30.07.18	Letter from CCC to P re her admission as an Elite Sport Associate
10.09.18	Letter from HKFC to P re change in policy on Junior Associate Membership
01.12.18	P ceased to be a member of HKFC and joined CCC as Elite Sports Associate Member
10.12.18	Dorothy Yu submitted partner application for P dated 28.11.18 to HKFC
19.01.19	The Game
19.01.19	P’s Facebook post re “no shaking hands” from HKFC’s players at the Game
21.01.19	Email from Neil Roberts of HKFC to HKFC’s General Committee setting out reasons for rejecting Dorothy Yu’s partner application for P
24.01.19 – 01.02.19	Email correspondence between LBS Committee regarding the Game and P’s Facebook post, and approving sending email to HKLBA
01.02.19	Email from D1 on behalf of HKFC to 14 email addresses, of which 4 addresses belong to the personnel of HKLBA and the remaining 10 addresses belong to officers of the LBS Committee (“1 February Email”)
04.02.19	Email from Cyril Leung of HKLBA to HKLBA Officers advising that the 1 February Email would be dealt with by Disciplinary Panel (“DP”)
12.02.19	Letter from HKFC to Dorothy Yu rejecting her Partner Application for P
15.02.19	Email from HKLBA forwarding 1 February Email to 2 CCC members and/or staff and copied to 4 email addresses belonging to HKLBA
13.03.19	Demand letters from Alex To & Co Solicitors (“AT”), Solicitors for P, to D1 and HKFC
27.03.19	Letter from HKFC to AT
17.04.19	DP Report: P’s current reprimand to become a substantiated record to be kept permanently at HKLBA office; P is suspended from taking part in all HKLBA organised competitions and tournaments from 01.05.19 – 30.06.19
25.04.19	DP Report circulated by D3 to P, Convenor of CCC, Convenor of HKFC, copying all Councillors of HKLBA
25.04.19	P posted a video on her Facebook profile
29.04.19	DP’s findings and penalty to P was reported in the Council Meeting of HKLBA and recorded in the minutes
07.05.19	P’s letter to HKLBA Appeal Panel
14.05.19	Email from HKFC to P dismissing her appeal
17.05.19	Letters from AT to D1 and HKFC stating inter alia,: 1.  There were widespread republications of the 1 February Email. 2.  Publication and republications of the DP Report aggravated the injuries on P’s reputation when the readership and reception are not contained at all. 3.  Defamatory allegations have put P under great stress, and she suffers from emotional instability. 4.  Caused injury to P’s lawn bowls school, 1/3 reduction in new recruitment since February 2019. 5.  Foreseeable loss of business opportunities amounts to over HK$25million. 6.  Demand open and formal official statement and apology failing which will launch defamation suit and file formal complaint to Police.
10.06.19	The dismissal of P’s appeal was reported in the Council Meeting of HKLBA and recorded in the minutes
10.09.19	Writ & SOC

6.  It is worth noting that DP’s Report dated 17 April 2019 upheld some parts of the complaint in the 1 February Email. P appealed against the decision of the DP but was unsuccessful.

7.  P’s case against D1-D2 is based on the 1 February Email and her case against D3-D4 is premised on the 15 February Email (which in essence is a republication of the 1 February Email).

8.  The full text of the 1 February Email reads as follows:

“Misconduct -- Vivian Yip

Dear HKLBA Committee,

Referring to the incidents happened and the player's behaviour during the ladies league game played on 19 January 2019 between HKFC B and CCC A, we hereby put forward our formal complaints, as summarised below, against one of CCC A player, namely Vivian Yip, for her ill behaviour during the game.

1. Without the consent of our club or any of our players, the subject player was taking video of the game. It was rudely continued even after protest was launched. The act was even more unacceptable where the camera was placed at floor level shooting at an upward angle, and some of our players were wearing short sports skirt. Our players standing on the rink were even rudely asked to stand aside keeping clear of the camera. Many players felt uncomfortable knowing someone was taking video.

2. Insulting and psychologically affecting our players by speaking out loudly repeatedly saying our players would not be able to draw the shot.

3. Even when her team were holding the shot and leading by big margin, she fired numerous unnecessary firing shots, accompany by loud roar, to intimidate our players. With the noise and the scary atmosphere created, she succeeded in frightening some of our players.

4. Posting untrue, insulting and irresponsible statements on her Facebook, saying ‘If you want not to shake hand with your opponent you must join this club’, trying to discredit our players and ruin the reputation of our club.

It is hope that something can be done to stop the above from happening again, especially when we know that these were not isolated incidents, so that our players do not have to bear the psychological harassment and verbal insult while playing the game we all love. Your prompt attention is therefore much appreciated.”

(“the Words”)

9.  P in her Amended Statement of Claim (“ASOC”) claims against the Defendants on the following grounds:

(a)  Defamation;

(b)  Innuendo;

(c)  Malicious Falsehood;

(d)  Section 24 Defamation Ordinance;

(e)  Breach of confidence; and

(f)  Misuse of private information.

10.  P claims against the Defendants for, inter alia:

(a)  An injunction order restraining each of the Defendants (whether by himself, jointly, or via any agent of whatever description) from publishing, procuring and/or participating in the publication of the Words or similar words defamatory of and/or containing false allegations concerning the P;

(b)  Damages, including but not limited to aggravated, exemplary and/or special damages, and damages for subsequent republications, for defamation, malicious falsehood, the tort of misuse of private information and/or breach of confidence to be assessed;

(c)  An order compelling each of the Defendants to apologize to the P in writing.

11.  Trial commenced on 24 August 2022. Mr. Lam, acting for P, called P as the first witness to give evidence. Her testimony completed on 26 August 2022, a Friday. On the Monday following, i.e. 29 August 2022, before Mr. Lam proceeded to call his other witnesses, he informed the Court that the case against D3-4 would be withdrawn. A draft order was submitted to the Court which was duly approved.

12.  As such, trial then proceeded between P and D1-D2.

Heads of Claims

Defamation

13.  Under paragraph 10 of ASOC, P claims that the Words, in their ordinary and natural meanings, meant and were understood to mean:

“(1) P rudely took videos of a game of lawn bowls, including upskirt videos of female players, knowing it was being objected to by her opponents, on 19^th January 2019.

(2) P rudely asked multiple lawn bowls players from her opposing team to stand aside and keep clear of the camera whilst she was taking videos of a game of lawn bowls on 19^th January 2019.

(3) Multiple players from P’s opposing team in a game of lawn bowls which took place on 19^th January 2019 were aware of P’s video taking and felt uncomfortable.

(4) P insulted, and psychologically affected, multiple players from her opposing team in a game of lawn bowls on 19^th January 2019 by speaking loudly and repeatedly.

(5) P deliberately, and unnecessarily, intimidated and frightened multiple players from her opposing team by firing unnecessary firing shots, accompanied by “loud roar”, in a game of lawn bowls on 19^th January 2019.

(6) P posted untrue, insulting and irresponsible statements on her Facebook page, with the deliberate and malicious aims of (a) discrediting D2’s lawn bowls players; and (b) ruining the reputation of D2 as a whole.

(7) P wrongfully harassed and verbally insulted D2’s lawn bowls players on numerous occasions prior to the game on 19^th January 2019.

(8) P was an immoral, despicable and discourteous person unfit to be playing the game of lawn bowls.”

14.  It is further said that the Words are false. P pleads the following particulars under paragraph 12:

(a)  Whilst it was true P took videos of a game of lawn bowls on 19 January 2019, it did not include upskirt videos, and all videos were destroyed after the game. It was done innocently and courteously with the implied consent of D2 and/or all lawn bowls players present at the material time, and at no point during the game did any person approach P to protest, or otherwise attempt to stop P from taking videos.

(b)  Whilst it was true P asked a person to keep clear of the camera whilst she was taking videos of a game of lawn bowls on 19 January 2019, that was done very politely, and no person complained about the request at the time.

(c)  At no point during the game on 19 January 2019 did any person approach P to say he or she felt uncomfortable with the video-taking. Had any person approached P on 19 January 2019 to ask that P stop taking videos, P would have complied with the request.

(d)  P never insulted or psychologically affected anyone from her opposing team in the game of lawn bowls on 19 January 2019, in any manner whatsoever.

(e)  P never intimidated or frightened anyone from her opposing team in any manner in the game of lawn bowls on 19 January 2019, whether deliberately or otherwise.

(f)  P never posted untrue, insulting or irresponsible statements on her Facebook page, whether with the deliberate and malicious aims of (a) discrediting D2’s lawn bowls players; and (b) ruining the reputation of D2 as a whole or otherwise.

(g)  P never harassed or verbally insulted D2’s lawn bowls players.

(h)  P was not an immoral, despicable or discourteous person, and P was certainly a fit and proper person to be playing the game of lawn bowls.

15.  Under paragraph 13, it is pleaded that D1 and/or D2 published and/or procured the publication and/or republication of the Words maliciously because:

(a)  D1 and/or D2 published and/or procured the publication and/or republication of the Words knowing the same to be false or being reckless as to their truth or falsity.

(b)  D1 and/or D2 published and/or procured the publication and/or republication of the Words deliberately without first contacting P or otherwise giving P an opportunity to comment, even though they could easily have contacted P should they be minded to do so.

(c)  D1 and/or D2 published and/or procured the publication and/or republication of the Words with the dominant motive of injuring P and/or out of their hatred of P, as D1 and/or D2 saw P as their competitor in the sports of lawn bowls.

(d)  D1 and/or D2 published and/or procured the publication and/or republication of the Words to a large number of recipients, without marking the 1 February 2019 Email “private and confidential”, thus encouraging the Words’ repeated republication, in an attempt to maximize the harm and hurt which could be caused to P.

(e)  D1 and/or D2 had plenty of opportunities, should they be minded to make good use of the same, to (a) retract the Words; (b) admit or clarify that the Words were false; and/or (c) apologize to P, but deliberately chose not to do so, despite having read P’s demand letters dated 13 March 2019 & 17 May 2019 respectively (there were two demand letters as the one dated 17 May 2019 took into account contents of a report produced by the DP of D4 on 17 April 2019 which also showed the Words contained false allegations), in order to maximize, prolong and aggravate the harm and hurt suffered by P, and to “rub salt into P’s wounds”.

(f)  D1 and/or D2 published and/or procured the publication and/or republication of the Words having calculated the likely quantum of damages which may be awarded against them would be smaller than the benefits which they would be able to obtain in terms of “getting rid of” P as a competitor in the sport of lawn bowls.

(g)  By reason of the above, the conduct of D1 and/or D2 was outrageous.

(h)  P reserves her rights to provide further particulars hereto after discovery and/or the delivery of interrogatories.

Innuendos

16.  Alternatively, P pleaded under paragraph 11 that the Words bore and were understood to bear each of the meanings under paragraph 10 by way of innuendos.

17.  It is pleaded that “readers of the who were aware of P’s background as a professional lawn bowls player and lawn bowls coach would understand the Complaint as having the meanings pleaded under paragraph 10”.

Malicious Falsehood

18.  P relies on paragraphs 12 and 13 and claims that P has suffered loss and damage as a result of the malicious publication and/or procurement of publication and/or republication of the Words.

19.  P went on to claim under paragraph 14 that “as was intended and foreseen by D1 and/or D2, the Words went viral and were widely read by people in the Hong Kong sporting world and beyond”.

20.  P relies on the matters pleaded in paragraph 13 to seek aggravated and/or exemplary damages “as a result of the above malicious defamation” and also claims financial loss in the form of costs of psychotherapy.

Section 24 Defamation Ordinance

21.  P relies on Section 24 of the Defamation Ordinance (Cap 21) and claims that the alleged malicious defamation and/or malicious falsehood was calculated to cause pecuniary damage to P and the Words were published and republished in permanent forms and/or were calculated to cause pecuniary damage to P in respect of her profession as a lawn bowls player and her profession as a lawn bowls coach, each being a profession carried on by P at the time when the Words were published for which financial reward could be made directly or indirectly (through SBI and/or IBL) available to P, and/or were calculated to disparage P in such professions.

Breach of Confidence/Misuse of Private Information

22.  Under paragraphs 31 to 34 and 34A, P said that Ds acted in breach of duty of confidence and alternatively liable to P for misuse of private information.

23.  It is pleaded that:

(a)  P had a reasonable expectation of privacy and entitled to expect that the fact that there was a complaint against her and/or the details of such a complaint would be kept strictly private and confidential until such time as the complaint had been finally determined or otherwise disposed of, and that pending such final determination or final disposal only those persons strictly necessary for determining the complaint” should be informed of it.

(b)  The private and confidential nature of the complaint against P was or should be obvious to Ds and P reasonably expected the Words to be kept strictly private and confidential.

(c)  Ds thus jointly and severally owed P a “common law and/or equitable duty of confidence”.

(d)  Ds acted in breach of this duty of confidence by publishing the 1 February Email, exposed the fact that there was a complaint against P and/or the details of such a complaint to people not strictly necessary for determining the complaint.

Discussion

24.  The main issue of this Trial is whether the 1 February Email / the Words are defamatory. It is not disputed that the 1 February Email was published by D1 and/or D2.

25.  The other main issue is whether D1-D2 can rely on the defence of qualified privilege if the Words are defamatory or false.

26.  In respect of P’s claim of malicious falsehood, Mr. Carolan submitted P does not identify which statements contained within the Words are relied upon. Apart from those pleaded under the defamation claim, no particulars of the specific false statements within the Words were pleaded.

27.  Mr. Carolan further submitted that P did not plead any particulars of malice and P would have to allege that D1-2 knew such words were false when they were used.

28.  I agree that no particulars are pleaded under ASOC. Apart from alleging that the Words are defamatory or false and attaching her version of meanings, P failed to specify which part of the document are maliciously false.

29.  As to P’s other heads of claim, Mr. Carolan argued that they should be struck out for lack of particulars.

30.  Mr. Carolan’s criticisms of ASOC is not unjustified. Indeed, I was quite prepared to deal with his application to strike out the offending parts of the ASOC as preliminary issues when trial commenced, but for Mr. Carolan’s last minute decision in not pursuing the same.

31.  I shall first deal with the main issue of defamation.

Meaning of the Words

32.  The legal principles to be applied in ascertaining the meaning of the words are succinctly summarized by Lok J in Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 328 :

“42. There is no serious dispute about the following principles to be applied in ascertaining the meaning of the words in a libel action:

(i) Words in an article are normally construed according to their natural and ordinary meaning, ie the meaning in which reasonable people of ordinary intelligence, with the ordinary person’s general knowledge and experience of world affairs, would be likely to understand them;

(ii) The natural and ordinary meanings include implied, inferred and indirect meanings;

(iii) Although the same words in an article may bear different meanings to different readers (because of their temperament, knowledge or experience etc), for the purpose of defamation litigation, the words have only one single meaning, and the court has to determine what that single meaning is;

(iv) For the purpose of ascertaining the single meaning, the court puts itself in the position of a fictitious ordinary reader;

(v) The fictitious ‘ordinary reader’ is described as one with the following characteristics:

He is a sort of half-way house between the unusually suspicious and the unusually naive. He is essentially fair-minded and reasonable and does not jump to hostile conclusions on flimsy evidence; but he may be guilty of a certain amount of loose thinking and does not read a sensational article with cautious and critical care ... and his capacity for implication or drawing inferences is greater than the lawyer’s ... The layman reads in an implication much more freely, and ... is especially prone to do so when it is derogatory ...

(vi) The hypothetical reader is taken to be the representative of those who would read the publication in question;

(vii) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which ‘can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation’;

(viii) The context and circumstances of the words in an article must be taken into consideration, and the article must be taken as a whole;

(ix) Where the alleged libel is contained in a letter, the whole of the correspondence would form part of the context, for it may be assumed that the other party to the correspondence is aware of its contents;

(x) Where there is disagreement as to what should count as context, it has been suggested that the test is what, having regard to all the circumstances, a reasonable person would be regarded as having read or seen.

43. The matters published are defamatory if they expose the claimant to contempt and ridicule by others and cause others to shun him. The matters would also be defamatory if they lower the claimant’s estimation in the eyes of right-thinking members of society and adversely affect his reputation.”

33.  The question is how the hypothetical reader (i.e. representative of those who would read the publication in question), reading the whole of the document, would construe the ordinary and natural meanings of the Words.

34.  The Court has to consider whether the Words are defamatory in a sense that “they expose the claimant to contempt and ridicule by others and cause others to shun him or lower the claimant’s estimation in the eyes of right-thinking members of society and adversely affect his reputation”.

35.  The position of D1-D2 regarding P’s pleaded meaning of the Words, as submitted by Mr. Carolan, can be summarized as follows:

P’s Pleaded Meanings	D1-2’s Position
(1)  P rudely took videos of a game of lawn bowls, including upskirt videos of female players, knowing it was being objected to by her opponents, on 19 January 2019.	Meaning (1) was denied by D1-D2 and an alternative lesser meaning was averred under para.12(1) to (3) of the Amended Defence, i.e. P took video of the Game which was against D2’s house rules and D2’s players did raise objection, which is reflected in DP’s finding (with no penalty imposed). P herself agreed under cross examination that she took video of the Game by using her mobile phone. The lesser meaning would not be defamatory.
(2)  P rudely asked multiple lawn bowls players from her opposing team to stand aside and keep clear of the camera whilst she was taking videos of a game of lawn bowls on 19 January 2019.	Meanings (2)-(5) were admitted by D1-2 save for use of the word “multiple” [players]. Meanings (2)-(3) are not defamatory while (4)-(5) may be mildly defamatory. However, P agreed that “firing shots accompanied by loud roar” corresponds with what she described as “shouting” in her FB video. DP was unable to make any findings on complaints 2-3 due to the conflicting versions of events set out in the players’ witness statements submitted to DP. It cannot be said that the assertions render the Words false.
(3)  Multiple players from P’s opposing team in a game of lawn bowls which took place on 19 January 2019 were aware of P’s video taking and felt uncomfortable.
(4)  P insulted, and psychologically affected, multiple players from her opposing team in a game of lawn bowls on 19 January 2019 by speaking loudly and repeatedly.
(5)  P deliberately, and unnecessarily, intimidated and frightened multiple players from her opposing team by firing unnecessary firing shots, accompanied by “loud roar”, in a game of lawn bowls on 19 January 2019.
(6)  P posted untrue, insulting and irresponsible statements on her Facebook page, with the deliberate and malicious aims of (a) discrediting D2’s lawn bowls players; and (b) ruining the reputation of D2 as a whole.	Meaning (6) was admitted save for the words, “deliberate and malicious”. DP found P in breach of bye-law 1.22.e and imposed penalty. It supports the defence of justification as the admitted meaning is substantially true. P did post “untrue, insulting and irresponsible statements on her FB” and D1-2 relies on the partial plea of justification under paragraph 12 (5) & (7) (a)-(b) Defence.
(7)  P wrongfully harassed and verbally insulted D2’s lawn bowls players on numerous occasions prior to the game on 19 January 2019.	Meaning (7) is denied.
(8)  P was an immoral, despicable and discourteous person unfit to be playing the game of lawn bowls.	Meaning (8) is denied.

36.  Mr. Carolan argued that based on the findings of DP, as well as P’s own evidence, the Words are at least partly true (and thus partially justified).

37.  Mr. Lam, on the other hand, said that there is no effective plea of justification from D1-D2 as they rely on the findings of DP, which is in nature an opinion and is not admissible.

38.  While I agree that DP’s findings are in nature an opinion, P did not disagree to the inclusion of the DP Report in the Agreed Trial Bundle [C378-415]. I see no reason why the Court cannot consider that document as part of the evidence of this Trial.

39.  Looking at the content of the complaint contained in the 1 February Email and the DP’s conclusions side by side:

1 February Email	DP Conclusions
1.  Without the consent of our club or any of our players, the subject player was taking video of the game. It was rudely continued even after protest was launched. The act was even more unacceptable where the camera was placed at floor level shooting at an upward angle, and some of our players were wearing short sports skirt. Our players standing on the rink were even rudely asked to stand aside keeping clear of the camera. Many players felt uncomfortable knowing someone was taking video.	7.1 The use of mobile phone or other video recording devices to take video imaging as a means to resolve disputes is inappropriate. It does not go in line with the Laws of the Sports of Bowls, and there is no provision in HKLBA Bye-laws that validates the use of video imaging to determine displacement of bowls. It is also concluded that the Accused and her student had probably failed to observe the house rule of HKFC regarding the use of mobile phone for video taking within HKFC premises.
2.  Insulting and psychologically affecting our players by speaking out loudly repeatedly saying our players would not be able to draw the shot.	7.2 The allegation that the Accused was insulting and psychologically affecting HKFC players by speaking out loudly repeatedly saying that HKFC players would not be able to draw the shot cannot be substantiated due to conflicting evidence from the players. However, the DP shall iterate that lawn bowling is a gentlemen’s game that all bowlers are well aware of. The importance of sportsmanship and bowls etiquette shall not be over-emphasized.
3.  Even when her team were holding the shot and leading by big margin, she fired numerous unnecessary firing shots, accompany by loud roar, to intimidate our players. With the noise and the scary atmosphere created, she succeeded in frightening some of our players.	7.3 The disputed bowl could have been resolved much earlier had the skips and their captains been more conversant with the Laws of the Sports for Bowls. After the third end the game had been proceeded with unnecessary tension among players. This was due to a lack of mutual respect between the two teams, coupled with a sentiment of mistrust among the players. Firing of shots is a free option of any player under all kinds of situation. HKFC players could have been more accommodating instead of taking it as intimidation or threats. The DP concludes that this allegation can also be discharged, as the Accused had not violated any provision in the Laws of the Sports of Bowls or local Bye-laws.
4.  Posting untrue, insulting and irresponsible statements on her Facebook, saying ‘If you want not to shake hand with your opponent you must join this club’, trying to discredit our players and ruin the reputation of our club.	7.4 The DP found with valid proofs that the Accused had posted some mockery statements against HKFC players on her own Facebook. Her behavior was immature and unacceptable. Such Facebook remarks did not serve any purpose other than jeopardizing the relationship between herself and her past teammates in HKFC. Moreover, her statement could likely defame the reputation of HKFC. Thence, it was a breach of Article 1.22.e of the HKLBA Bye-laws.

40.  In essence:

(a)  DP upheld complaint 1 (partly) that P used mobile phone to record the Game which was against D2’s house rule.

(b)  DP found complaint 2 cannot be substantiated due to conflicting evidence from players.

(c)  Complaint 3 was not upheld as it was a free option for P to make the firing shots.

(d)  DP found valid proof of complaint 4 in that P posted mockery statements on Facebook against D2’s players.

41.  Based on the above, the Words are partly true.

42.  Furthermore, the evidence given by the witnesses also supports that the Words are partly true.

The Witnesses

43.  There are 3 witnesses on P’s side: P herself, Dorothy Yu (“Dorothy”) and Zita Chan (“Zita”), who were all present at the Game.

44.  D1 was the only witness for D1-D2. Regarding what happened at the Game, his evidence is hearsay as he was not present at the Game (nor did he interview HKFC’s players).

45.  P adopted her redacted witness statement as her evidence in chief and was cross-examined by Mr. A. Lam for D3-4 and Mr. Carolan for D1-D2 for almost 3 days in a row.

46.  P strikes me as very passionate about lawn bowls (which she is obviously good at). She has some psychological issues even prior to the Game and has been seeking professional assistance. She got emotional at times (while under cross examination) but was able to carry on with her testimony.

47.  Her evidence mostly reflects her own points of view and her own personal feelings which I accept to be genuine.

48.  Dorothy and Zita both adopted their respective redacted witness statements as their evidence in chief.

49.  Dorothy and P have been in a romantic relationship after Dorothy’s divorce. Being more senior in age and experience, she is very supportive and protective of P. It is not disputed that she drafted the letter to D4 appealing DP’s findings for P. However, she insisted that the present litigation is P’s own idea and not hers. She also denied that she wholly funded the present litigation.

50.  Her evidence, in a gist, is that D1/D2 should have conducted their own investigation of the complaint from HKFC’s players before sending the 1 February Email to HKLBA.

51.  Dorothy also testified that P was affected by the Words in that she had to consult psychologists and P was uncomfortable visiting D2’s premises.

52.  Given her relationship with P, Dorothy, understandably, insisted that the Words bear the pleaded meanings and that D1 (and D2) should not have published it “without ascertaining the truth”.

53.  Zita is P’s teammate who confirmed that P was distressed after the publication of the 1 February Email. As she is a practising solicitor, she also introduced a barrister (not Mr. Lam) to P for professional advice.

54.  D1 was sued as he was the person sending the 1 February Email. He, however, did not draft the Email. He merely approved the draft prepared by Terence Lee, who attended the Game and interviewed the players.

55.  D1 admitted that he did not interview the players concerned nor did he talk to P before sending out the Email. He did not take any steps to verify the complaint. The only purpose of sending the Email was to initiate a possible investigation by HKLBA.

P’s behaviour at The Game

56.  Regarding what happened at the Game, P in her witness statement basically recited paragraph 12 of ASOC.

57.  P was also cross examined extensively by Mr. A. Lam and Mr. Carolan.

58.  It is P’s evidence that:

(a)  there was a dispute between P and HKFC’s players during the Game regarding P’s firing shot which caused P to use mobile phone(s) to take video of the Game with a view to resolve further disputes;

(b)  the mobile phone(s) were placed at ground level;

(c)  some players were wearing short skirts;

(d)  use of mobile phone was in breach of D2’ house rules and P was aware of the same;

(e)  P did ask (politely) HKFC’s players to stand aside such that they would not block the view of the camera;

(f)  P did “shout” during the Game and she used loud voice.

59.  Such evidence by and large corresponds with DP’s findings. Based on the above evidence, the Words are partly true.

60.  P admitted under cross examination by Mr. Carolan that she is an aggressive player and she takes pride in it. She said in her Facebook video that she is “hot tempered” / “脾氣暴躁” and when she was really into a game she would act “not like a human being” / “唔會人咁品”.

61.  It is Zita’s evidence that P’s bowling style is “rather bold” and she plays “with relatively much force”, which is “unusual for ladies’ players”. She also agreed that shouting has occurred during the Game.

62.  Pleaded Meanings (2)-(6) to a large extent corresponds with P’s style of playing at the Game.

63.  There is insufficient evidence to show whether “multiple” players of D2 were “insulted/intimidated/frightened/psychologically affected by P”.

64.  Mr. Lam in his closing submissions further argued the following:

(a)  The Words started with “"Misconduct — Vivian Yip”, which were in the subject line. The hypothetical reader would in most likelihood read the subject line first, before clicking onto the email message to read the rest of the text. The impression created by that subject line would have a serious or profound effect on how the hypothetical reader read the rest of the text.

(b)  Numerous derogatory and sensational words and phrases like “her ill behaviour”, “rudely continued even after protest”, “insulting”, “unnecessary”, “intimidate”, “scary”, “frightening”, “untrue, insulting and irresponsible”, “discredit our players and ruin the reputation of our club”, “harassment”, etc., were used, so that the overall impression created by the Words must be one of “despicable and discourteous”, and thus “immoral”, conduct on the part of P.

(c)  The Words included the phrase “these were not isolated incidents”, which means the hypothetical reader would read the Words to be about P as a person generally.

65.  It is trite that the hypothetical reader is taken to have read the whole of the document and taken into account the context and circumstances of the document. One cannot just read the subject line in isolation.

66.  While I agree with Mr. Lam that “sensational” words and phrases are used, I do not find that a reasonable reader would form the overall impression that P’s conduct is “despicable and discourteous” or “immoral”.

67.  The reference to “not isolated incidents” cannot be taken to mean that the reader would read the Words to be “about P as a person generally”. Taken at its highest, it could only mean that P has done similar acts before.

68.  Indeed, the hypothetical reader (LBS committee members, D3 and personnel of D4) would have some knowledge of P’s playing style as P was well known in the field. They would also be aware of the fact that P was reprimanded by D4 for a Facebook post back in 2017. They (in particular the LBS committee members) would have known about the background of the complaint.

69.  Reading the 1 February Email as a whole, it was clearly expressed in the form of a complaint arising from the Game. The recipients are D2’s LBS committee members and the personnel of D4. An ordinary reader within that pool, reading the whole of the Email, should appreciate that the conducts being complained of were to be investigated by D4. That is the context and the circumstances of the Email.

70.  None of those would cause the hypothetical reader to conclude that it is about P “as a person generally”. The “misconduct” refers to the misconduct at the Game.

71.  As agreed by P (and Dorothy), D1-D2 were not passing judgment on her but communicating their players’ complaint to the relevant authority (i.e. D4), and there were some basis to their complaint.

72.  It is not P’s case that D2’s players have made up a completely groundless complaint against P. The attack is on the choice of words in the Email.

73.  Considering all the evidence before me, I find the Words mean:

(a)  There were disputes between P and D2’s players during the Game;

(b)  P took video of the Game using mobile phones which was against D2’s house rule;

(c)  The mobile phones were placed at floor level shooting with an upward angle in order to capture the activities of the players;

(d)  Some of D2’s players were wearing short sports skirts;

(e)  P did ask D2’s players to stand aside to keep clear of the camera;

(f)  P did shout or use loud voice during the Game when firing shots;

(g)  D2’s players were not comfortable with the above behaviour;

(h)  P did post mockery statements on Facebook about D2 and its players.

74.  I further find:

(a)  the Words cannot be construed to mean P “rudely took upskirt videos” (i.e. Meaning (1));

(b)  the Words cannot be construed to mean P wrongfully harassed and verbally insulted D2’s lawn bowl players on “numerous occasions” prior to the Game (i.e. Meaning (7));

(c)  that P was an immoral, despicable and discourteous person unfit to be playing the game of lawn bowls (i.e. Meaning (8)).

75.  As submitted by Mr. Carolan, pleaded Meaning (2) to (3) were admitted by D1-D2 except that it was done to “multiple players” of D2.

76.  As for Meaning (4) to (5), Mr. Carolan admitted that they are “mildly defamatory”.

77.  Meaning (6) was also admitted by D1-D2 except that the reference to “deliberate and malicious”.

78.  I find that the Words, reading as a whole, do not bear the defamatory meanings as pleaded by P.

79.  As to how the Words affect P’s reputation, it is P’s evidence that prior to the publication, she was widely recognized and acclaimed as one of the most seasoned female lawn bowl players in Hong Kong.

80.  P has listed out all her awards from 2010 up to 2018, which is unchallenged by Ds.

81.  However, P was cross examined by Mr. A. Lam that she did not have an “impeccable” reputation prior to the Words as she was subject to reprimand by DP for a Facebook post in 2017.

82.  While I accept P’s evidence regarding her awards and achievement, her reputation prior to the publication of the Words was not entirely flawless. The Court has to decide whether her reputation was adversely affected by the publication of the Words.

83.  Both Dorothy and Zita described how P was notably uncomfortable when she played against D2’s players and visited D2’s premises after publication of the Words.

84.  Dorothy said the P was so upset that she was considering giving up lawn bowls.

85.  Apart from P’s subjective feelings, which I accept to be genuine, there is no evidence before me which shows that the Words exposed P to contempt and ridicule by others and cause others to shun her, nor that they lower P’s estimation in the eyes of right-thinking members of society and adversely affects her reputation.

86.  There is no evidence to show that the Words affected her reputation in the lawn bowls field as suggested by P.

87.  I am not convinced that the Words are defamatory.

Qualified Privilege

88.  Even if I am wrong in finding that the Words were not defamatory, the 1 February Email was protected by qualified privilege.

89.  Gatley 13^th Ed. provides:

Ҥ 15-036

… participants in a wide range of other proceedings (e.g. domestic proceedings established by contract or proceedings established under the authority of statute or by executive action) are recognized as having a duty to say what they know in relation to matters relevant to these proceedings and publications in the course of the proceedings are therefore made on an occasion of qualified privilege.

§15-046

… the communication of complaints and adjudications between members of an association and a domestic tribunal within the association have long been held to be privileged though the publication must be to a person who has a legitimate interest in the subject matter of the communication.”

90.  Mr. Carolan argued that HKLBA is clearly a domestic tribunal and HKFC LBS, as a constituent member of the association, must have been acting in accordance with the purpose for which the privilege applies, i.e. to assist in the proper regulation and conduct of the sport of lawn bowls in Hong Kong.

91.  As a member club of D4, I find that D2 (and D1 as the convenor) did have an interest and a duty, to report a complaint lodged by their own players in relation to a league game to its LBS committee members and to D4, the regulating body of the sports of lawn bowls in Hong Kong, and D3 as D4’s president and DP’s chairman.

92.  The LBS committee members, D4 and D4’s personnel (including D3) have legitimate interest in the subject matter of the communication.

93.  The leading authority on Qualified Privilege is Horrocks v Lowe [1975] AC 135 where Lord Diplock held at p.149 – 150 that:

“The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognizes that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue. With some exceptions which are irrelevant to the instant appeal, the privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused. For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit – the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.”

“…..But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.

The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be proved that he did not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person.

Apart from those exceptional circumstances, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally thought tautologously termed, “honest belief”. If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In according to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertainable by a rigorous search for all available evidence and a judicious assessment of their probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognize the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be “honest”, that is, a positive belief that the conclusions they have reached are true. The law demands no more.” (Emphasis added)

94.  Mr. Carolan relied on the following passage in Gatley:

“18-017 If the defendant honestly believes this statement to be true, he is not to be held malicious merely because such belief was not based on any reasonable grounds; or because he has done insufficient research, or was hasty, credulous, or foolish in jumping to a conclusion, irrational, indiscreet, stupid, pig-headed or obstinate in his belief.”

95.  As held by Madam Justice Mimmie Chan in Winmost Enterprises Limited v. Chinlink International Holdings Limited formerly known as Decca Holdings Limited & Others, HCA-2541/2005:

“35. ……..malice is difficult to prove and in Horrocks v Lowe, it was pointed out that the court should be slow to draw an inference of malice against an honest defendant. As in any area of the law, inferences can only be drawn from facts which are sufficiently and clearly proved, and if they can be said to be the only or necessary inferences to be drawn from such facts as proved.

37. …..what is required of a defendant is simply a positive belief in the truth of what he published, and that to destroy the privilege, there must be a dominant motive on the part of the defendants which is improper or unrelated to the privilege, I am unable to find sufficient evidence to show, or to support the inevitable inference, that when Wong sent the Article to Johnson and Keith, he was driven by the dominant motive or desire either to damage the plaintiff, or to destroy the plaintiff as a competitor, and drive the plaintiff out of business. As a competitor of the plaintiff (as the plaintiff claims), Wong may have been swayed by prejudice in his belief that the Article referred to the plaintiff, and that the contents of the Article are true. He may even have impulsively, carelessly, or unreasonably arrived at the conclusion that the contents of the Article were true in their references to the plaintiff and its goods. So long as Wong positively believed in his conclusions, however, and there is no evidence to disprove his claim that he did, the defendants are entitled to maintain their defence of qualified privilege.

38. …...I do not consider that the plaintiff has proved a dominant improper motive, as required.

39. ….. the plaintiff’s reliance on the defendants’ failure and refusal to give an apology, I accept that this cannot per se be taken as evidence of malice.”

96.  Unless D1 and D2 published the Words with the sole and dominant purpose to harm P, they are entitled to the protection of qualified privilege despite the defamatory statements made honestly: Qadir v Associated Newspapers Ltd [2012] EWHC 2606.

97.  The fact that D1/D2 is a competitor of P/CCC does not mean that qualified privilege cannot be relied upon, unless there is malice on the former’s part.

98.  In Winmost, Madam Justice Mimmie Chan held that:

“26. Whether there is a duty for the purpose of qualified privilege is a question of law. Occasions of qualified privilege include where one person has a duty (whether legal, social or moral) or an interest to make the statement, and the recipient of the statement has a corresponding interest or duty to receive it.

27. Legal duty can more readily be understood. As explained in Stuart v Bell [1891] 2 QB 341, “moral or social duty” means a duty recognized by people “of ordinary intelligence and moral principle, but at the same time not a duty enforceable by legal proceedings, whether civil or criminal”. The test for the existence of a moral or social duty is explained by Lindley LJ to be: “Would the great mass of right-minded men in the position of the defendant have considered it their duty under the circumstances to make the communication?”

28. ……Both the plaintiff and the 2^nd defendant were working on the Hotel and the Project, as suppliers. If the fabric supplied or to be supplied by the plaintiff to the 2^nd defendant in respect of the furniture for the guest rooms of the Hotel was defective or inferior in quality, or not up to the prescribed contractual standards, it is conceivable that there would either be potential delay in the 2^nd defendant’s performance of its contractual obligations and in the delivery of the furniture to be supplied by the 2^nd defendant to the Hotel, or its reputation would be adversely affected in respect of any furniture already supplied.

29. .…..

30. .…I accept that Wong and the 2^nd defendant had a legal, social or moral duty and interest to publish the Article and to send it to Johnson and Keith of Waterfront, they being the project managers responsible for the supply of furniture to the Hotel. Likewise, Johnson and Keith had the duty and interest, as the managers of Waterfront (which was responsible for overseeing and managing the Project) and in charge of sourcing furniture for the Hotel, to receive the Article which contained information on the quality of goods supplied by the plaintiff, a company appointed as the supplier of furniture and fabric for the Hotel. If the goods supplied by the plaintiff to the Disneyland Hotel were inferior, or not in accordance with contractual specifications, Waterfront and its responsible officers had the duty to ascertain whether the furniture and fabric supplied or to be supplied by the plaintiff for the Hotel would have similar quality problems, and would be up to the high standard dictated for the Hotel.

31. The plaintiff placed huge reliance on the fact that the 2^nd defendant is a competitor and business rival of the plaintiff.

32. ……in order to defeat the defence of qualified privilege, what the plaintiff is required to do is to establish, on a balance of probabilities, that there was malice on the part of Wong and the 2^nd defendant. The burden is plainly on the plaintiff to prove this.”

99.  Gatley 13^th Ed. Provides:

“18-007

People commonly act from a mixture of motives and it will be impossible to attribute any precise degree of causative effect to one or another. However, for this purpose the improper purpose must be the dominant motive and it is only where the defendant’s desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that malice can properly be found.”

100.  The issue is whether there was malice on the part of D1 (and D2 as his principal).

Malice?

101.  Mr. Carolan argued that no positive case of malice is pleaded and the particulars offered to support the general assertion, do not sufficiently address the purpose or motive of D1-2 in sending the 1 February Email.

102.  It is further argued that all such particulars are no more than “formulaic assertions” as observed by Eady J. in striking out a plea of malice in Henderson v London Borough of Hackney [2010] EWHC 1651:

“33. It has been confirmed by the Court of Appeal in Telnikoff v Matusevitch [1991] 1 QB 102 and in Alexander v Arts Council of Wales [2001] 1 WLR 1840 that, in order for a claimant to succeed in proving malice, it is necessary both to plead and prove facts which are more consistent with the presence of malice than with its absence. This is one of the reasons why, in practice, findings of malice are extremely rare. 34. It is thus reasonably clear, as a matter of pleading practice, that allegations of malice must go beyond that which is equivocal or merely neutral. There must be something from which a jury, ultimately, could rationally infer malice; in the sense that the relevant person was either dishonest in making the defamatory communication or had a dominant motive to injure the claimant. Mere assertion will not do. A claimant may not proceed simply in the hope that something will turn up if the defendant chooses to go into the witness box, or that he will make an admission in cross-examination: see Duncan and Neill on Defamation at para 18.21.”

103.  P has indeed failed to plead any particulars of malice in ASOC.

104.  At trial, P did not point to any positive evidence to show malice on the part of D1 and/or D2. The Court is asked to draw inferences from the evidence of D1.

105.  D1’s evidence can be summarized as follows:

(a)  LBS Committee members received email from Johnny Tsang, Chairman of LBS Committee about P’s Facebook post on 19 January 2019;

(b)  LBS Committee members exchanged emails and Terence Lee, Competition Secretary, drafted an email to be sent to D4;

(c)  The draft email was circulated amongst the members and D1, as HKFC convenor to HKLBA, sent the email on 1 February 2019;

(d)  D1 cannot explain the choice of words used in the 1 February Email; D1 did not personally interview the players who complained about P (but Terence Lee did);

(e)  D1 did not take steps to verify the contents of the complaint before sending out the Email.

106.  Mr. Lam invited the Court to infer malice on the part of D1, as:

(a)  No step was taken by D1 to verify the serious allegations in the Words, he did not care about the truth or falsity of the allegations in the Words when he published them. As such, it amounts to wilful blindness.

(b)  Numerous unnecessarily derogatory and sensational words and phrases like “ill behaviour”, “rudely continued even after protest”, “insulting”, “unnecessary”, “intimidate”, “scary”, “frightening”, “harassment”, etc. were used.

(c)  D1 could have published something more neutral or at least suggested qualifying the very strong words used, but he chose not to do so.

(d)  D1 agreed that whilst P was on his side, he never lodged any complaint about P’s playing style which has always been on the “loud” side. Once P switched to play for CCC, D1 lodged his first complaint against P ever. This is more likely to be motivated by hatred, or a desire to hurt P.

(e)  Cyril Leung and Howard Poon had no role in the handling of complaints under HKLBA’s Byelaws. D1’s addition of these two recipients must be motivated by D1’s desire to hurt P.

(f)  If D1 did not want to hurt P, D1 would have taken greater care to make sure the 1 February 2019 Email was conspicuously marked “Private and Confidential” and D1 said “I don’t know whether I knew” he could have so marked.

(g)  D1 never attempted to contact P or asked P what happened at the Game. On being asked why he did not contact P before lodging a complaint against her, D1’s answer was “no reason”.

107.  Mr. Lam refers to paragraphs 84 to 86 of Roberts v Bass (2002) 194 ALR 161, where the High Court of Australia held:

“84. In exceptional cases, the sheer recklessness of the defendant in making the defamatory statement, may justify a finding of malice. In other cases, recklessness in combination with other factors may persuade the court that the publication was actuated by malice. In the law of qualified privilege, as in other areas of the law, the defendant’s recklessness may be so gross as to constitute wilful blindness, which the law will treat as equivalent to knowledge.

“When a person deliberately refrains from making inquiries because he prefers not to have the result, when he wilfully shuts his eyes for fear that he may learn the truth”, said this court in R v Crabbe, he may for some purposes be treated as having the knowledge which he deliberately abstained from acquiring.”

In less extreme cases, recklessness, when present with other factors, may be cogent evidence that the defendant used the occasion for some improper motive.

This is particularly so when the recklessness is associated with unreasoning prejudice on the part of the defendant.

In Royal Aquarium and Summer and Winter garden Society v Parkinson, Lord Ester MR said:

If a person charged with the duty of dealing with other people’s rights and interests has allowed his mind to fall into such a state of unreasoning prejudice in regard to the subject-matter that he was reckless whether what he stated was true or false, there would be evidence upon which a jury might say that he abused the occasion.

85. Fifteen years earlier, as Brett LJ, Lord Esher MR had said:

If it be proved that out of anger, or for some other wrong motive, the defendant has stated as true that which he does not know to be true, and he has stated it whether it is true or not, recklessly, by reason of his anger or other motive, the jury may infer that he used the occasion, not for the reason which justifies it, but for the gratification of his anger or other indirect motive.

In Lord Diplock’s speech in Horrocks, there are passages that standing alone suggest mere recklessness or indifference to truth and falsity is sufficient to constitute malice. But we do not think that Lord Diplock was intending to change the law, as it was laid down by Lord Esher MR in the above quotations.

86. In fact, in Horrocks Lord Diplock referred to Lord Esher MR’s judgments in these cases as correctly stating the law. Furthermore, Lord Diplock introduced his discussion of “recklessness” by saying that, if the defendant “publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false” (emphasis added). This statement makes it clear that Lord Diplock was using the term “reckless” in the sense of “wilful blindness”, as explained by this court in Crabbe.”

108.  Mr. Lam seems to suggest that D1 published the Email out of hatred to P or a desire to hurt P, and thus his “recklessness” is associated with “improper motive”.

109.  As to what is an “improper motive”, the High Court in Roberts held that:

“76. Improper motive in making the defamatory publication must not be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of beliefin truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill‑will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication. Even knowledge or a belief that the defamatory statement was false will not destroy the privilege, if the defendant was under a legal duty to make the communication. In such cases, the truth of the defamation is not a matter that concerns the defendant, and provides no ground for inferring that the publication was actuated by an improper motive. ….

77. If the defendant knew the statement was untrue when he or she made it, it is almost invariably conclusive evidence of malice. That is because a defendant who knowingly publishes false and defamatory material almost certainly has some improper motive for doing so, despite the inability of the plaintiff to identify the motive. ……

79. As we have said, malice means a motive for, or a purpose of, defaming the plaintiff that is inconsistent with the duty or interest that protects the occasion of the publication. It is the motive or purpose for which the occasion is used that is ultimately decisive, not the defendant's belief in the truth of the matter.……

82. ……The defence of qualified privilege would be dramatically curtailed if defendants had to intend and believe in the truth of every meaning that a judge or jury later gave to the publication. The privilege is not curtailed if lack of belief in a particular meaning is merely some evidence from which it may be inferred in some circumstances that the defendant was actuated by an improper motive. Nor is it curtailed if one applies the doctrinally sound view of Cotton LJ that the question is not "whether the defendant acted in the belief that the statements he made were true, but whether he acted as he did from a desire to discharge his duty [or interest]".

83. In our opinion, neither lack of honest belief nor knowledge of falsity ipso facto destroys a defence of qualified privilege. But knowledge of falsity is "almost conclusive evidence" of improper motive, except where the defendant is under a legal duty to publish the defamation.”

110.  In Huda v Jersey [2017] EWHC 2553 (QB), a case relied on by Mr. Carolan, the Queens Bench held (para.70-75, 79-81) that:

“Malice

70. Malice means publishing a statement that the defendant knew was false, or was reckless (in the sense of complete indifference) as to its truth or falsity. It is tantamount to dishonesty: Alexander –v- Arts Council of Wales [2001] 1 WLR 1840 [18]. It is that state of mind that justifies depriving a defendant of a defence of qualified privilege or makes it just to allow recovery for the publication of a falsehood. The classic exposition of malice is from the speech of Lord Diplock in Horrocks -v- Lowe [1975] AC 135, 149-150.

71. ……malice can also be established by proving that, in publishing the words complained of acted with a “dominant intention” to injure the claimant. This species of malice may still have a legitimate role in malicious falsehood claims but it has a dubious justification when advanced in answer to a well-founded plea of qualified privilege. It has been expressly excluded as a basis for proving malice in answer to a fair comment/honest opinion defence: Albert Cheng –v- Paul [2001] EMLR 777. In 2002, Eady J noted that he could not recall an instance of “dominant intention” malice having been proved and described this form of malice as an “endangered species” in relation to qualified privilege: Lillie & Reed –v- Newcastle City Council [2002] EWHC 1600 (QB) [1093]. I am not aware of any such case in the 15 years since.

72. As malice is a serious allegation – the equivalent of fraud – “it must be pleaded with scrupulous care and specificity. … [I]t is quite inappropriate to proceed on the basis that something may turn up(whether on disclosure of documents or at trial)”: Henderson –v- The London Borough of Hackney [2010] EWHC 1651 (QB) [40] per Eady J.

73. Each of the particulars relied upon by the Claimant is required to be indicative of this dishonest state of mind order to be sustainable. Each particular has to raise a “probability of malice” and each particular has to be “more consistent with the existence (of malice), than with its non‑existence”: Turner -v- MGM [1950] 1 All ER 449, 455a-e per Lord Porter; Telnikoff -v- Matusevitch [1991] 1 QB 102 at 120 per Lloyd LJ. As made clear in Turner “each piece of evidence must be regarded separately... [I]f the result is to leave the mind in doubt, then that piece of evidence is valueless as an instance of malice whether it stands alone or is combined with a number of similar instances” (455b-c).”

111.  Both P and Dorothy emphasized that D1/D2 has a duty to check whether the information passed on to HKLBA was true or false, that they had a preliminary duty to investigate. Dorothy said that it depends on the actual reason why the players got upset or whether they had malicious impression about P.

112.  Under cross-examination by Mr. Carolan, P agreed that D1 or LBS Committee needs to trust its own players who brought the complaint to their attention.

113.  P also agreed that the LBS Committee was not passing judgment on her but communicating their players’ complaint to the relevant authority (i.e. D4).

114.  The same is also agreed by Dorothy under cross-examination. She agreed that D1, as convenor, and D2, had to consider the complaints from their own players and took it seriously. She further agreed that the complaints, as appeared to D1 and/or D2, were supported by some basis. And, the purpose of publishing the 1 February Email to D2’s Committee members and HKLBA was to consider an investigation.

115.  She also agreed that the only “judgment” the Committee members or D1 was making is that there was something to complain about.

116.  There is no evidence before me which shows that the players were making up stories about P and that D1/D2 knew that. D1 (and D2) honestly believed that there were some basis of the players’ complaint and thus reported the same to HKLBA, the adjudicating body.

117.  Similar to the facts in Huda, D1/D2 were simply responding to a complaint made. D1’s evidence is that the whole point of sending the 1 February Email was to initiate a possible investigation by HKLBA.

118.  I find that D1, though did not interview the players personally before publishing the 1 February Email, had no reason to believe that the players’ complaint was false.

119.  As suggested by Mr. Carolan, which I agree, the relevant truth which D1-2 were required to believe is only that real complaint had been made about P’s conduct at the Game. There was no question of D1 or other committee members needing to believe that the complaints were fully justified and could be proved before the DP.

120.  I find that it was the honest belief of D1 (and D2) that their players have made a real (as supposed to a fabricated) complaint about P’s behaviour at the Game. It is not their duty to carry out investigation but to refer the matter to HKLBA for adjudication.

121.  Mr. Lam emphasized the failure to contact P (and verifying the truth) before sending out the Email as a proof of malice on the part of D1 and D2.

122.  I do not find that to be fatal to the defence of qualified privilege. As noted by the Court in Huda:

“75. As was made clear during the hearing, none of the Defendants has first-hand knowledge of the facts concerning the Claimant’s treatment of Patient A. They were all reacting to the complaint Patient A had made. A plea of malice against those who are passing on information that they have received or reporting concerns arising from such disclosures has an unpromising foundation. It will be an unusual case in which an individual in such a position will know that the allegations made by the complainant are false. ……

79. There is nothing in these documents that suggests that any of the Defendants did not believe Patient A was telling them the truth, still less do they provide any basis on which to allege that they knew her allegations to be false. Insofar as they tend to prove anything, it is the positive absence of malice.

80. Against that, I turn to consider the pleaded case of malice in the Particulars of Claim. The pleading contains no formal “particulars of malice”, ……

“10. The Claimant avers that the Report was sent to the GOC to actively encourage the GOC to take professional misconduct proceedings against the Claimant…

81. Paragraph 10 does not raise a probability of malice; it is equally consistent with honest belief. …… The failure to contact the Claimant and/or to carry out any investigation do not raise a probability of malice. The Defendants were not the investigators (and even had they been, a failure to contact the Claimant would not have been probative of malice). They were people to whom disclosures were made from Patient A, someone in respect of whose health and welfare they had an interest. They then reported what they had been told to the regulator of the person the subject of the complaint. It was for the GOC to investigate the complaint. If the complaint progressed, in accordance with the GOC’s rules, the Claimant would be given an opportunity to comment upon and answer the allegations.”

123.  I do not find D1 (and D2) published the 1 February Email knowing it to be false or reckless as to its falsity, nor had the requisite dominant motive to injure P. D1 was reporting that there was a complaint from D2’s players and passing on the complaint to D4 for determination. It is not for them to carry out investigation of the complaint and their failure to do so cannot be taken as evidence of or basis for inference of malice.

124.  Mr. Lam also relied on D1’s persistent refusal to apologize as evidence of malice. It is said that “it would in most likelihood have been aimed at maximizing the harm and hurt suffered by P”.

125.  Failure to apologize cannot per se be taken as evidence of malice: Winmost paragraph 39.

126.  Considering all the evidence before me, I find that no malice on D1 can be inferred. As such, no malice can be inferred on D2 as D1’s principal.

Publication too Wide?

127.  Mr Lam also argued that the defence of qualified privileged cannot succeed because D1 & D2’s publication of the Words was too wide.

128.  Mr. Lam referred to Pang Siu Wing alias Pang Wing v Chungshan Commercial Association, Hong Kong[2021] HKCFI 1250:

“98. In considering whether there is excessive or disproportionate publication, the person exercising the privilege is entitled to take all necessary or reasonable means of so doing and, provided the publication does not go beyond the exigency of the occasion, the mere fact that the defamatory matter is communicated to persons who have no legitimate interest in its subject-matter will not avoid the privilege. Hence, the ultimate question to be asked is whether the manner of publication goes beyond the exigency of the occasion. In other words, the publication must be proportionate to the necessity of the occasions.

99. In considering this question, the following factors are relevant:

(i) the nature of the occasion said to give rise to privilege;

(ii) the means of publication chosen;

(iii) the reason why such means of publication was adopted; and

(iv) whether in the circumstances, it was reasonably necessary and proportionate to adopt that manner of publication.”

129.  Mr Lam argued that only D3 had the legitimate interest. It is accepted that D1 could communicate with D3 via Cindy Lau (the administrative assistant of D3). However, adding Cyril Leung and Howard Poon at [email protected] to the list of recipients was plainly unnecessary, disproportionate and went beyond the exigency of the occasion. It is said that publishing the Words to these two persons went beyond the complaint mechanism provided by Clause 1.20a of HKLBA’s Byelaws.

130.  The undisputed evidence is that Cyril Leung is D4’s manager of league business and the email address of [email protected] is also monitored by Howard Poon, administrative personnel of HKLBA’s league business.

131.  The Game is a league match and is naturally “league business”. As the manager of league business and the administrative personnel, Cyril Leung and Howard Poon must have an interest in receiving the Email.

132.  I find that both of them are not unnecessary or inappropriate people who had no interest in receiving the Email. Forwarding the Email to them via that single email address in not “unnecessary, disproportionate and went beyond the exigency of the occasion”.

133.  I find that the publication is not too wide so as to raise an inference of malice on the part of D1 (and D2).

Conclusion on Defamation

134.  I have found that the Words are partly true and that the Words do not bear the pleaded defamatory meanings under ASOC.

135.  I have also found that there was no malice on the part D1 and D2 that would defeat the defence of qualified privilege.

136.  P’s claim for defamation therefore fails.

Malicious Falsehood

137.  The test of what constitutes malice in the tort of malicious falsehood is the same as the test in relation to the torts of libel and slander in the context of qualified privilege.

138.  As I have found no malice on the part of D1-D2, P’s claim under this head fails.

Innuendo/Section 24 Defamation Ordinance

139.  I agree with Mr. Carolan’s attack of lack of particulars in ASOC in respect of these heads of claims.

140.  Given my findings above, P’s claims under innuendo and s.24 Defamation also fail.

Breach of Confidence/Misuse of Private Information

141.  Both Mr. Carolan and Mr. A Lam pointed out that at the PTR hearing on 20 June 2022, P confirmed that the sole basis of these claims is built on the mere fact of Ds exposing the fact that there was a complaint against P and/or the details thereof to people not strictly necessary for determining the complaint.

142.  Mr. Lam for P did not argue otherwise. His case is that Cyril Leung and Howard Poon should not be sent the 1 February Email.

Breach of Confidence

143.  There are three elements to a claim in breach of confidence:

(a)  The information has the necessary quality of confidence about it;

(b)  That information has been imparted in circumstances importing an obligation of confidence; and

(c)  Its unauthorised use or disclosure is to the detriment of the plaintiff.

See Shenzhen Futaihong Precision Industry Co Ltd v BYD Co Ltd [2019] 2 HKC 175 at §85; Clerk & Lindsell at §26-06.

144.  Mr. Lam argued that D1 & D2 set in train an investigation of sporting misconduct against P and did so by publishing the Words to people who had no role in the HKLBA complaint procedure – Cyril Leung and Howard Poon at [email protected].

145.  I have already found that Cyril Leung and Howard Poon are not persons who have no interest in receiving the 1 February Email.

146.  Further, I agree with Mr. Carolan that the Email did not contain P’s confidential information. P did not identify information having “the necessary quality of confidence about it” nor has she shown how it was “imparted in circumstances importing an obligation of confidence”.

147.  P’s claim under Breach of Confidence therefore fails.

Misuse of Private Information

148.  The Court in ZXC v Bloomberg [2022] 2 WLR 424 revisited the test for misuse of private information:

“47. In Murray he Court of Appeal endorsed the two stage test for whether there has been misuse of private information, as explained in the Court of Appeal decision in McKennitt v Ash [2008] QB 73. As stated by Simon LJ at para 42 of his judgment in the present case, at stage one, the question is whether the claimant has a reasonable expectation of privacy in the relevant information; if so, at stage two, the question is whether that expectation is outweighed by the countervailing interest of the publisher's right to freedom of expression. This two stage test is now well established.”

149.  Mr. Carolan submitted that no material facts are relied on other than those already pleaded in ASOC, which I agree.

150.  In any event, as noted by Mr. Carolan, P’s conduct at the Game cannot be “private” as it was an open match.

151.  P agreed, under cross-examination by Mr. A Lam, that she did not regard her FB video which touched on the contents of the 1 February Email “private and confidential”, and that her FB status was set to “public” at the time.

152.  P’s Facebook video made the information available to all her contacts on Facebook, which, according to her, represent half of the population in the lawn bowls community in Hong Kong.

153.  P also agreed that by putting the label “private and confidential” on a document does not mean that a document is in fact “private and confidential”.

154.  Clearly, P herself does not treat such information to be “private and confidential” by posting the said video on her Facebook page.

155.  P’s claim under this head cannot succeed.

Conclusion

156.  I found that P has failed to establish any of her claims against D1-D2. I therefore dismiss her case against D1-D2.

157.  It is unnecessary for me to deal with the reliefs claimed by P.

Costs

158.  Mr. Carolan has, in both his written Opening and Closing Submissions, asked the Court to impose a costs order against Dorothy as a non-party in case I find for D1-D2.

159.  So far, Mr. Lam has not made any written submission in this regard. He has invited the Court to make an order nisi (with a view to make further submissions for variation).

160.  I therefore make a costs order nisi that P do pay the costs of D1-D2, with certificate for Counsel, to be taxed if not agreed.

161.  The above order shall become absolute unless parties file written submissions within 14 days of handing down of this Judgment.

162.  I am grateful for Counsel’s valuable assistance.

DCCJ 4923/2019

[2022] HKDC 621

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4923 OF 2019

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DECISION

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Introduction

1.  This case has been fixed for trial commencing on 24 August 2022 with 6 days reserved.  Set within the hearing of the pre-trial review on 20 June 2022 was also an application by the plaintiff made by summons taken out on 28 April 2022 for the amendment of the statement of claim and for the plaintiff to file and serve a supplemental witness statement.  The application was opposed by the 3^rd and 4^th defendants whereas the 1^st and 2^nd defendants have indicated their consent to the application prior to the hearing, with a view to saving costs and for expediency in case management[1].

2.  The application was originally fixed for a first, or “call-over” hearing on 7 June 2022, but since counsel for the 3^rd and 4^th defendants was otherwise engaged, the first hearing was then moved to the 20 June 2022 to be heard together with the pre-trial review.  In view of the fact that the trial is scheduled to take place on 24 August 2022, and in response to a letter from the 3^rd and 4^th defendants complaining about the filing of an application bundle for the purposes of the hearing to take place on 20 June 2022 despite it being a “call-over” hearing, a further direction was subsequently given on 9 June 2022 intimating to the parties they were not precluded from preparing as much as practicable for the proper disposal of the plaintiff’s summons on the day of the hearing.

3.  The parties have helpfully submitted their respective written notes for the pre-trial review prior to the hearing, in particular on the proposed directions to be made. As it transpired, practically the entire hearing originally fixed for 2 hours was spent on arguments between the plaintiff and the 3^rd and 4^th defendants on the plaintiff’s application.  I am also grateful for the parties’ efforts in putting together their full arguments for the hearing.

4.  At the end of the hearing, I adjourned the matter for a written decision to be handed down in respect of the plaintiff’s summons, and, depending on the outcome of my decision, for giving directions for the trial.  This I now do.

The plaintiff’s claim and the defences

5.  The plaintiff is an experienced professional lawn bowls player for the Craigengower Cricket Club (“CCC”).  She is also a lawn bowls coach.  According to her pleaded case, the 1^st defendant was a deputy chairman of the lawn bowls section of the 2^nd defendant, and a director of the 4^th defendant.

6.  The 2^nd defendant was at all material times a local sports club with a lawn bowls section that had been involved in leagues, competitions and other games organized by the 4^th defendant, a rival lawn bowls club to CCC.  

7.  As for the 3^rd defendant, he was at the material times the President, as well as the Chairman of the Disciplinary Panel of the 4^th defendant.

8.  By her statement of claim dated 10 September 2019, the plaintiff claims against the defendants for libel, malicious falsehood, and breach of confidence related to the publication of two emails:-

(i)  Sent by the 1^st and 2^nd defendants on 1 February 2019 raising a complaint and alleging sporting misconduct on the part of the plaintiff that allegedly took place during a ladies’ lawn bowls game held on 19 January 2019, and

(ii)  Sent by the 3^rd and 4^th defendants on 15 February 2019 forwarding the 1 February 2019 email to various administrative staff and convenors of CCC, i.e. the plaintiff’s lawn bowls club.

9.  The plaintiff’s case is that the ordinary and natural meaning of the words used in the email dated 1 February 2019 was defamatory and false.  Alternatively, the meaning of the words used as understood by innuendo was defamatory and false, and that the email was sent or forwarded somehow with malice so that the defence of qualified privilege was unavailable. On the same or similar grounds, the publication of the email also constituted malicious falsehood.

10.  As for breach of confidence, the plaintiff claims that, as the subject of a misconduct complaint, she was entitled to expect that the existence and details of the complaint would be kept private and confidential until it had been finally determined or otherwise disposed of. Thus, by sending or forwarding the email, the defendants committed a breach of confidence by disclosing the complaint and its details to people who were not strictly required to receive the same for the determination of the complaint.

11.  The defendants have filed their respective defences denying the defamatory meaning of the words used in the email, denying the alleged innuendos, and putting forward the defence of justification, and qualified privilege since the email was sent or forwarded in the context of internal disciplinary procedures of the 4^th defendant.  They also denied malice and a breach of confidence.  The various pleaded cases culminated into a list of issues dated 30 June 2021 agreed upon by the parties.

The plaintiff’s application

12.  As the plaintiff explained, in late March 2022, when she was reviewing the adequacy of her discovery with her partner, she realized Schedule 1 to the statement of claim contained two factual mistakes.  As she has put it, since she could not knowingly allow those false assertions to remain on her pleading, she asked her solicitors to rectify those mistakes, by all parties’ consent if possible.  Those factual mistakes necessitated corrections to be made to Schedule 1, being the “CV of the Plaintiff” containing her work history, educational background and other information including her achievements in the lawn bowls sport. The corrections were (i)  she was the Champion of The Bowls Grand Prix 2018, 2016, 2015 instead of 2018, 2017, 2015, and (ii)  she was the 1^st Runner-Up of the Tiger Bowls International 2017 instead of the Champion.

13.  The 3^rd and 4^th defendants indicated that had the plaintiff merely sought to rectify the 2 factual errors in Schedule 1 to the statement of claim, they would have consented to her application. The plaintiff’s present application, however, shows that the scope of her original intention to correct factual mistakes has expanded to include an application to amend other parts of her statement of claim.

14.  First, there are proposed amendments to paragraphs 19 and 20, as well as 29 and 30. As they were two sets of identical amendments, for present purposes it suffices for me to set out the proposed amendments to paragraphs 29 and 30 (as underlined or deleted below)  that relate to the 3^rd and 4^th defendants:

“Cap.21 – D3 and/or D4

29. Further or alternatively, the above malicious defamation and/or malicious falsehood was calculated to cause pecuniary damage to P and the Words were published and republished in permanent forms and/or were calculated to cause pecuniary damage to P in respect of her profession as a lawn bowls player and her profession as a lawn bowls coach, each being a profession carried on by P at the time when the Words were published for which financial reward could be made directly or indirectly (through SBI and/or IBL)  available to P, and/or were calculated to disparage P in such a profession.

30.  P is thus entitled to and shall, if necessary, rely on Sections 23 and/or 24 of the Defamation Ordinance (Cap 21).”

15.  Second, the plaintiff seeks to amend the statement of claim to rely on an additional cause of action of the tort of misuse of private information. The proposed amendments are contained in paragraphs 34A and 34B of the draft amended statement of claim as follows[2]:

“34A. Further or alternatively, based on the facts pleaded above, Ds were and remain liable to P for the tort of misuse of private information, because (1)  P had a reasonable expectation of privacy in relation to the fact that there was a complaint against P and the details of such a complaint, as set out in the Words; and (2)  such an expectation was not overweighed by the counterveiling interest of D’s rights to freedom of expression.

  34B.  As a result of D’s misuse of P’s private information, P suffered loss, including considerable distress and embarrassment. Paragraphs 14 to 16, and 24 to 26, hereinabove, are repeated.”

16.  Third, the plaintiff also seeks to amend paragraph 38 by adding a pleading that the District Court has jurisdiction to grant an apology order by virtue of section 52B of the District Court Ordinance, Cap.336. This was prompted by the judgment of HH Judge Kent Yee in Chow Wing Kai v Liang Jing [2021] HKLRD 1189 where the learned judge accepted a contention[3] that section 52B is the relevant provision providing the court with the jurisdiction to grant injunctions whenever the court considers it just or convenient to do so. Although Mr Abel Lam for the 3^rd and 4^th defendants has criticised the plaintiff for not seeking this amendment earlier, he indicated that the 3^rd and 4^th defendants do not dispute the court has jurisdiction to grant such an order, but the raising of it is “academic and unnecessary”.

17.  The plaintiff accepts that the application has come late. However, it was submitted on her behalf that draft documents were circulated as early as on 1 April 2022.  A full explanation for the reasons behind the plaintiff’s application was also provided to the defendants by way of an open letter.  Whilst the 1^st and 2^nd defendants indicated their consent on 6 April 2022, the 3^rd and 4^th defendants indicated they were “not prepared to consent”to the plaintiff’s intended application.  The summons was then taken out by the plaintiff on 28 April 2022.

Case management at the hearing

18.  The plaintiff submits that the court has wide case management powers under Order 1B rule 1(2)  of the Rules of the District Court, Cap.336H which includes the power, additional to those stated in the rule, to “take any other step or make any other order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A”.

19.  The plaintiff contends that it is appropriate to exercise those powers in this case and make an order in terms of the summons, given that the 3^rd and 4^th defendants have had over two and a half months to consider the application, whereas no substantive ground of opposition had ever been raised by the 3^rd and 4^th defendants, by affirmation or correspondence, i.e. prior to the filing of the written submissions.  It is further contended by the plaintiff that as the call-over hearing of the summons fell on the pre-trial review itself, with 2 hours reserved, the parties did have sufficient time to have prepared for full arguments, especially with the help of written submissions served in advance well before the hearing. As such, for the just and efficient management of the case, the plaintiff says it is better for the summons to be dealt with substantively at the pre-trial review.

20.  I am in agreement with the plaintiff, despite the 3^rd and 4^th defendants’ contention that they must be given an opportunity to file affirmation(s)  in opposition concerning the evidential matters raised. As the matter progressed, although the plaintiff was admittedly late in making her application, insofar as the management of the present summons is concerned, the 3^rd and 4^th defendants on the other hand have had at least two and a half months before the pre-trial review to put forward their contentions and prepare for their opposition. In fact, by a letter dated 16 May 2022 from the plaintiff’s solicitors, the 3^rd and 4^th defendants through their solicitors had been invited to agree to the full disposal of the summons by a time schedule proposed to cater for the filing of affidavit evidence by the 3^rd and 4^th defendants in opposition, and of written submissions. The proposed schedule was not accepted.

21.  On 30 May 2022, the plaintiff’s solicitors wrote again to the solicitors for the 3^rd and 4^th defendants, inviting them to re-consider their position. Eventually, no affirmation in opposition has been filed in response to the 3-page affirmation of the plaintiff filed in support of her application, or the short supplemental witness statement that merely seeks to explain (i)  her factual mistakes as mentioned earlier, (ii)  the procedural events leading up to the application, and (iii)  to confirm her present directorship in the two companies referred to in Schedule 1 to the statement of claim.

22.  Neither have the 3^rd and 4^th defendants indicated at the hearing as to whether any affidavit evidence on any identified disputed fact or issue (apart from a general reference to “the evidential matters raised”)  was definitely required on their part before the court proceeded to hear their arguments. As matters went, Mr Abel Lam for the 3^rd and 4^th defendants have filed a 20-page written submission covering detailed legal arguments in opposition to the application. As far as I could see, the 3^rd and 4^th defendants were able to go full-throttle at the hearing. The court thus proceeded on that basis.

Further discovery by the plaintiff

23.  Before I go into the merits of the plaintiff’s application, it is necessary also to mention that the 3^rd and 4^th defendants also raised complaint about the lateness of the plaintiff’s 3^rd List of Documents dated 1 April 2022 (“the plaintiff’s 3^rd LOD”), which contains[4] 11 new items of discovery as follows:

No.	Description	Date
126	Computer Printout of the Sub-page of the Official Website of D4 entitled “Tiger Bowls 2017	Retrieved 13-3-2022
127	Computer Printout of the Competition Results of Tiger Bowls International (2017)	Retrieved 13-3-2022
128	Photo of P being Presented with the 1st Runner Up Medal in Ladies Cup of the Tiger Bowls International (2017)  won by P and her team	/
129	Computer Printout of the Sub-page of the Official Website of D4 entitled “Tiger Bowls 2016”	Retrieved 13-3-2022
130	Photo of the Competition Results of China Open (2016)	Retrieved 13-3-2022
131	Photos of P being presented with the Winner Medal China Open (2016)  won by P and her team (Team Henselite)	Retrieved 13-3-2022
132	Computer Printout of the Competition Results of The Bowls Grand Prix 2018	Retrieved 13-3-2022
133	True Copy of the Form NNC1 for the incorporation of Ikuto Bowls Lab (CR No.2708429)  (“IBL”)  filed on 6 June 2018, downloaded from the Companies Registry	6-6-2018
134	Computer Printout of the Companies Registry Document Index Search for IBL	Retrieved 13-3-2022
135	True Copy of the Form NNC1 for the incorporation of Simply Bowls Institute Limited (CR No.2708449)  (“SBI”)  filed on 6 June 2018, downloaded from the Companies Registry	6-6-2018
136	Computer Printout of the Companies Registry Document Index Search for SBI	Retrieved 17-3-2022

24.  These newly discovered documents are predominantly related to various results of lawn bowls competitions held on various dates, and company search documents related to the two companies of which the plaintiff remains a director. The 3^rd and 4^th defendants complain that no leave has been sought from the court for the late discovery by filing the plaintiff’s 3^rd LOD. They contend that it is impermissible for the litigant giving such late discovery to do so under the guise of voluntary discovery without seeking leave of the court, relying on Kinetics Medical Health Group Co Ltd v Dr Tse Kin Sang, HCA 1115 of 2010, 8 May 2013, DHCJ Marlene Ng (as she then was). On the strength of that case they also contend that the court would also require a full account of the lateness, particularly when the indulgence sought may put milestone dates at risk, explaining why the documents were not disclosed earlier, the provenance and makers of the documents, the relevance of the documents, and the availability or otherwise of the makers of the documents to attend trial for cross-examination.

25.  The plaintiff says that she should have disclosed such documents earlier, but she submits that the documents are wholly uncontroversial in nature – items nos.126, 127, 129 & 132 were printed from the 4^th defendant’s website, whilst items nos.133 to 136 are public documents that can be downloaded from the Companies Registry website at a fee. As such, it is contended, the documents are uncontroversial, unlike in Kinetics where a substantial volume of documents (69 in total)  were also involved, discovery of which was made less than 2 months before the trial.

26.  In the present case, the new discovery was made on 1 April 2022, parallel to the present application when it was first proposed, consisting of 11 items most, if not all, of which would seem to be uncontroversial. The discovery was made more than 4 months before the trial. I see no reason why, in the circumstances here, the plaintiff should be barred from adducing the new documents at the trial.

Legal principles on amendment

27.  The plaintiff has referred to 6 relevant legal principles on amendment applications that are said to be trite – see Re Hin-Pro International Logistics Ltd [2016] 1 HKLRD 1367 at para.8 per Ng J:

“8. I shall first remind myself of some of the well-established principles concerning amendments, summarized in a Judgment of this court in Hsu Ming Chi v Lam Shu Chit unrep.; HCCL8 of 2013; 22 October 2014 at [13] – [18]:

“13. It is a guiding principle of cardinal importance on the question of amendment that generally speaking, all such amendments ought to be made “for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings”: Re Playmates Investments Ltd [1996] 4 HKC 577 at 582E-H (per Le Pichon J as she then was); Natamon Protpakorn v Citibank NA [2009] 1 HKLRD 455 at para. 25 (per Cheung JA); Hong Kong Civil Procedure 2014 Vol. 1 para. 20/8/6.

14. Leave is readily granted to amend before trial unless it can be shown that the new claim based on the proposed amendment is bound to fail. While the court is entitled to have regard to the merits of the case, it should only do so when the merits are readily apparent, and are so apparent as not to require prolonged investigation: Natamon Protpakorn v Citibank NA supra at para. 25 (per Cheung JA).

15. If the proposed amendments are bound to fail, no leave to amend should be granted. In this regard, the court will take the applicant’s proposed pleaded case to the highest: Bank of China v Leigh Hardwick unrep., HCA 1110 of 2006, 28 August 2013, per Anthony Chan J at para. 2.

16. Absent any real prejudice, an application for amendment, albeit late, must be decided upon the general principle that a court of law seeks to adjudicate on the real issues and disputes between the parties and, if possible, technical and procedural rules should not stand in the way of allowing the parties to raise their real claims or defences before the court for adjudication: VSC Building Products Co Ltd v Kono Insurance Ltd., unrep. HCA 947/2005, 9 September 2009, per A Cheung J (as he then was)  at [22].

17. Where prejudice is claimed, the burden is on the party opposing the amendment to show prejudice. There is no injustice to the opposing party if he can be compensated by appropriate orders as to costs: Re Playmates Investments Ltd supra at 582H, 584C (Le Pichon J as she then was).

18. Lastly, in giving effect to the underlying objectives of the Rules of the High Court, the court shall always recognize that the primary aim in exercising the powers of the court is to ‘secure the just resolution of disputes in accordance with the substantive rights of the parties’: RHC O 1A r 2(2).” (emphasis added)”

28.  The 3^rd and 4^th defendants submit that late interlocutory applications may be dismissed on the basis of delay alone. The court is entitled to consider the burden in terms of substantial work and time which may result from the amendment of pleadings, including the need to consider carrying out investigation as appropriate, gathering evidence, and seeking further discovery from the plaintiff, as well as making amendments to their own pleadings and filing further witness statements, if necessary – see Credit One Finance Ltd v Leong Wun Heng [2019] 4 HKLRD 591 at paras.11-13 per G Lam J (as he then was).

29.  The 3^rd and 4^th defendants further rely on China Shanshui Cement Group Ltd v Zhang Caikui[2021] HKCFI 962; HCA 2880 of 2015, 14 April 2021 at paras.11-13 where Coleman J said:

“11. However, where the application to amend is only shortly before a trial, the delay comes into play. It is well known that, post-CJR, a late interlocutory application may be dismissed on the basis of delay alone. Therefore, late applications to amend pleadings and file late witness statements will be closely scrutinised by the court. The applicant must establish, by way of affirmation, what might be described as exceptional circumstances to explain and justify the delay. The delay itself might ground justifying refusal of leave, especially if a milestone date will likely be affected. Further, even if the trial date might be maintained, it is recognised that last-minute pre-trial applications disrupt the preparation for the trial on the part of the parties and the trial judge. Attention and time and effort may have to be diverted to deal with such an application, instead of trial preparation proper.

12. If the delay is the applicant’s own fault, for example as a result of inactivity when the need for amendment was or should have been evident at an earlier stage of proceedings, the court will unlikely grant indulgence to allow the late application. This is in part because the Court expects parties conscientiously to consider the pleadings before filling out the listing questionnaire and setting the matter down for trial. Disobeying rules of court and court imposed timetables without good reason makes a mockery of the case management system envisaged by the CJR.

13.  But, it must also be recognised that those principles are tempered to some extent by the ‘primary aim’ of the court when exercising case management powers, namely to secure the just resolution of disputes in accordance with the substantive rights of the parties.” [underline added]

30.  I do not think the parties have any qualms with any of the above legal principles, but it is a matter of how the principles should be applied in the present case that the parties differ. On the part of the 3^rd and 4^th defendants, they sought to argue that no explanation, or plausible explanation, has been given for the delay, such that no exceptional circumstances as mentioned by Coleman J have been established by affidavit evidence to justify the delay. The plaintiff’s application is therefore a non-starter based on this ground alone, say the 3^rd and 4^th defendants.

31.  On the other hand, the plaintiff submits that explanation has been given for the delay already, in particular for the discovery of the factual mistakes in Schedule 1 to the statement of claim concerning her past achievements. The plaintiff has admitted her mistake and apologised for the late amendments sought. Concerning the other parts of the proposed amendments, however, there seems to have been no special explanation proffered, and it would seem to me to have been a decision made by the legal team for the plaintiff to make the amendments quite independent of any factual mistakes discovered by the plaintiff.

32.  There seems to be a suggestion on the part of the 3^rd and 4^th defendants that the explanation by the plaintiff was concocted. I am not able to find so, or to say that her explanation was outright incredible. Further, having regard to the fact that the amendments were not proposed at the eleventh hour, or on the first day of trial, and that the application was taken out almost 4 months prior to the dates fixed for the trial, I am poised to take a practical approach for the present case, having now had the opportunity to scrutinise the proposed amendments, bearing in mind the important overall consideration of securing the just resolution of disputes in accordance with the substantive rights of the parties.

33.  Also, the real dispute here does not seem to rest upon the proposed amendments to correct the factual mistakes in Schedule 1 to the statement of claim, or the addition of a claim for an apology order in the jurisdictional paragraph, which I have dealt with above. Rather, a lot of arguments have focused upon the proposed amendments to paragraphs 29 and 30, as well as the addition of paragraphs 34A and 34B concerning the tort of misuse of private information.

34.  I shall deal with these items below.

Paragraphs 29 and 30 – the plaintiff being a lawn bowls coach

35.  The 3^rd and 4^th defendants have admitted that the plaintiff was, in 2019, the Head Coach of SBI. Schedule 1 to the statement of claim also contains information about the plaintiff being a lawn bowls coach. The amendment sought here is to add such a reference to her professional positions stated in the statement of claim itself.

36.  The plaintiff submits that, when it comes to the likely effect of the words contained in the subject email, the plaintiff should probably clarify she would say they tended to cause damage not just to her profession as a lawn bowls player, but also to her profession as a lawn bowls coach.  Thus, the plaintiff contends, there is no reason why this clarification should be disallowed.

37.  The 3^rd and 4^th defendants, on the other hand, contends that there is a lack of particularity concerning this amendment. It is said that they must be given to know what is the amended case they have to meet, with as much clarity and detail as they are entitled to under the rules – see Vigers Hong Kong Limited (in Creditors’ Voluntary Liquidation)  v Michael Andrew Barclay Binney, HCA 744 of 2013, 21 February 2019, DHCJ Keith Yeung SC (as he then was). It is said that the plaintiff here has introduced a new claim for the financial reward which could be made directly or indirectly (through SBI and/or IBL)  available to the plaintiff, and that this new claim is also embarrassingly unparticularised. On this ground alone, it is said, the amendment ought to be disallowed.

38.  It is further contended that this ‘new claim’ is doomed to fail by reason of the well-established rule against claims for reflective loss, the ambit of which has been laid down by the Court of Appeal in Landune v Cheung Chung Lung [2006] 1 HKLRD 39 at paras.19 and 31 per Yuen JA:

“19. The rule against reflective loss originated in Prudential Assurance Co. Ltd v Newman Industries Ltd (No.2)  [1982] Ch 204 and was authoritatively discussed by the House of Lords in Johnson v Gore Wood & Co. [2002] 2 AC 1. Put at its simplest, the rule debars a shareholder from suing to recover a loss which is merely a reflection of the loss suffered by the company of which he is shareholder. This rule has been extended to include not only claims brought by a shareholder in his capacity as such, but also claims in his capacity as an employee or director, as well as in his capacity as a creditor (Gardner v Parker [2004] 2 BCLC 554)  ……

31.   As for Mr Shum’s 2^nd submission that the fact that the Company owned shares in the Subsidiary should not be allowed to prejudice its claim, with respect that ignores the principle (or at least one of the principles)  behind the rule against reflective loss - the prevention of double recovery.  The principle debarring reflective loss is not based on the relationship of the plaintiff to the company, whether it be shareholder-company, or employee-employer, or creditor-debtor.  The common thread is that the plaintiff’s loss would be made good if the company, employer or debtor, recovers from the defendant.”

39.  The rule against reflective loss has been applied in the Court of Final Appeal in Waddington Ltd v Chan Chun Ho (2018)  HKCFAR 370 at para.82 per Lord Millet NPJ, and also by the Court of Appeal in Topping Chance Development Ltd v CCIF CPA Ltd[2020] HKCA 478 at paras.21-22 per Kwan VP. It is also submitted that notwithstanding a plaintiff may bring a personal claim, such a claim may be barred even where the loss is caused by a wrong actionable at the suit of a shareholder personally – see Global Bridge Assets v Sun Hung Kai Financial [2012] 4 HKLRD 474 at para.33 per Kwan JA.

40.  The 3^rd and 4^th defendants argue that the plaintiff is seeking to claim pecuniary damages for losses she suffered indirectly through SBI and/or IBL. Such loss, though not fully particularised, would seem to be loss of profits directly suffered by the two companies due to the alleged defamation harming the plaintiff’s reputation as a lawn bowls coach. As such, the plaintiff will be claiming reflective loss, which should be barred as a claim for double recovery.

41.  The plaintiff on the other hand submits that she has confirmed in her 2^nd witness statement sought to be filed that she is not claiming loss of income as special damages, so that the 3^rd and 4^th defendants’ submission on reflective loss is irrelevant. It is further submitted that section 24 of the Defamation Ordinance, Cap.21 has made an important change to the common law tort of malicious falsehood in that it allows a plaintiff to sue without pleading or proving special damage if it can be shown the falsehood was likely to cause pecuniary damage (Chang Wa Shan v Esther Chan Pui Kwan (2018)  HKCFAR 370 at paras.130 and 136). Had the plaintiff wanted to adduce evidence of financial loss, she would have sought to amend paragraph 26 of the statement of claim, which is the pleading on special damage.

42.  Having considered the submissions, it is plain that the plaintiff is not pleading a claim for special damage, in particular a claim for pecuniary loss or loss of income, which does not amount to a claim for reflective loss as submitted by the 3^rd and 4^th defendants. Further, since the claim is one for general damages, the 3^rd and 4^th defendants’ complaint about a lack of particularity in this regard, i.e. particulars for the calculation and quantification of any loss of income, is misconceived.

Misuse of private information

43.  The plaintiff seeks to introduce a new claim which relates to the tort of misuse of private information.  The plaintiff submits that when the she filed her statement of claim, there was no local case law suggesting Hong Kong should recognize the tort of misuse of private information as a distinct tort, so, according to the plaintiff, that was not pleaded. The plaintiff contends that had changed on 25 May 2020, when Coleman J said the following in X & Y v Z[2020] HKCFI 826 at paras.143-146:

“143. In England & Wales, the tort of misuse of private information, which had traditionally been ‘shoehorned’ into the tort of breach of confidence, has been given judicial recognition as a stand-alone cause of action since Campbell v MGN [2004] 2 AC 457 at 464-465. In doing so, the Court recognised that a breach of confidence is traditionally founded on the confidential relationship between the transferor and the transferee of the confidential information. In contrast, the tort of misuse of private information, being geared more specifically towards the protection of private life, provides more targeted protection against publication of information which is personal or private in nature.

144. ……

145. Misuse of private information has apparently not yet received formal judicial recognition as a cause of action in Hong Kong. It was discussed by the Court in Sim Kon Fah v JBPB & Co (A Firm) [2011] 4 HKLRD 45 at §§36-42 (a case mainly on breach of confidence). In X v Y [2014] 5 HKLRD 823, mentioned above, the cause of action was also relied on by the plaintiff in circumstances concerning disclosure of photographs and information pertaining to a secret intimate relationship of a well-known person, but the matter was resolved without the Court needing to make any determination on that cause of action.

146. As an aside, as the point does not really arise at present, and assuming that this has not been dealt with already (as it is possible that any judgment in previous cases has been “not for publication”), it is in my view high time that the Hong Kong Court recognised the tort of misuse of private information...”

44.  When a claimant sues on “misuse of private information”, he has to satisfy a two-stage test.  At stage one, the question is whether he had a reasonable expectation of privacy vis-à-vis the published information. At stage two, the question is whether that expectation was outweighed by the countervailing interest of the publisher’s right to freedom of expression – see ZXC v Bloomberg [2022] 2 WLR 424.

45.  The plaintiff argues that since she has pleaded “reasonable expectation of privacy” in paragraph 31 of her statement of claim, she can rely on the exact same factual allegation, “but ask for a different legal result”, namely, seeking relief under the new tort of misuse of private information, instead of the traditional tort of breach of confidence. On the other hand, the 3^rd and 4^th defendants contends that the tort of misuse of private information is a distinct cause of action from breach of confidence, which protects a different interest from breach of confidence (ZXC v Bloomberg at para.45). They have launched an attack on the lack of particulars not only as to reasonable expectation of privacy, but also the particulars of any misuse. They contend that there may even be a need to seek further particulars or adduce evidence in response to the alleged misuse.

46.  The concept of “private life” in this context is a broad term and not susceptible to exhaustive definition. It covers the multiple aspects of a person’s physical and social identity. This broad term can also include professional activities or activities of a business nature, and publication of information about an official criminal investigation into a person’s business activities can fall within the concept of “private life” – see ZXC v Bloomberg at paras.115-116. In my view, by pairity of reasoning, one could at least argue that in the context of the present case, information about a complaint and subsequent disciplinary investigation into the sporting conduct of the plaintiff could fall within the concept of private life.

47.  Without having to say more than is necessary prior to the trial, I understand that the plaintiff is relying on the same pleaded facts of her original claim to support this additional or alternative cause of action. In the round, having considered all the submissions, I am of the view that the complaint by the 3^rd and 4^th defendants about the lack of particulars in this respect is more apparent than real. As a person’s private life and matters protected by confidentiality may overlap, the plaintiff is entitled to rely on the current pleaded facts insofar as the circumstances that led to an expectation of privacy is concerned. As for the allegation of misuse, the plaintiff’s case on her current pleadings would appear to be sufficiently clear. Mr Abel Lam has highlighted the point during his submissions at the hearing that the 3^rd and 4^th defendants may need to seek or make further discovery or even better particulars of the allegation of misuse. I would tend to think the answers may be found in the 4^th Defendant’s Articles of Association, the 2^nd Defendant’s Lawn Bowls Section Byelaws, the 4^th Defendant’s publication entitled “Bowls Etiquette”, and the Bye Laws of the 4^th Defendant, which are documents included in the trial bundle.

48.  Despite Mr Abel Lam’s efforts, I am not persuaded by the 3^rd and 4^th Defendants. Although the plaintiff has been late in being forthcoming about this additional cause of action, the factual matrix of her case has remained the same.

Supplemental witness statement

49.  As I have mentioned, the plaintiff’s supplemental witness statement consists of 3 pages containing references to the facts and documents pertaining to the proposed amendments.  Having regard to my analysis and decision above, there is no reason why it should be disallowed.

Conclusion

50.  I would therefore allow the plaintiff’s application by summons dated 28 April 2022 for the filing of the proposed amended statement of claim and the supplemental witness statement of the plaintiff.  There is no real prejudice caused to the defendants, especially since there is still some time before the trial starts on 24 August 2022.

Orders

51.  I would therefore make the following orders and directions:-

(1)  Leave be granted to the plaintiff to amend her writ of summons and statement of claim in the manner as shown in red in Annexure 1 to the summons at or before 4:00 pm on Monday 27 June 2022;

(2)  Leave be granted to the defendants to make consequential amendments to their defences, if so advised, at or before 4:00 pm on Monday 18 July 2022;

(3)  Leave be granted to the plaintiff to make consequential amendments to her replies, if so advised, at or before the 4:00 pm on Monday 1 August 2022;

(4)  Leave be granted to the plaintiff to file and serve her supplemental witness statement, a draft of which is shown as Annexure 2 to the summons, at or before 4:00 pm on Monday 27 June 2022;

(5)  Leave be granted to the defendants to file and serve supplemental witness statements, if so advised, the contents of which must be limited to responding to the plaintiff’s supplemental witness statement, at or before 4:00 pm on Monday 18 July 2022;

(6)  The plaintiff do lodge and serve her updated bundle A for the trial, at or before 4:00 pm on Wednesday 3 August 2022;

(7)  The plaintiff do lodge and serve her written opening submissions, list of authorities and copies of authorities for the trial, at or before 4:00 pm on Wednesday 10 August 2022;

(8)  The defendants to lodge and serve their written opening submissions, list of authorities and copies of authorities for the trial, at or before 4:00 pm on Wednesday 17 August 2022;

(9)  The trial do start on Wednesday 24 August 2022 at 9:30 am as scheduled, with the 25, 26, 29, 30 & 31 August 2022 also reserved;

(10)  The trial shall be conducted in English, with a Punti-English interpreter arranged for factual witnesses.

Costs

52.  I would make an order nisi as to costs.  As suggested by the plaintiff, I would split the costs order for the summons into two parts, for the reasons set out by Yam J in Lessy S.A.R.L. v Pacific Star Development Ltd [1996] 2 HKLR 1 at 2-C.  The costs order nisi I make is as follows:-

(1)  Costs of and occasioned by the 3^rd and 4^th defendants’ opposition to the summons be paid by the 3^rd and 4^th defendants to the plaintiff in any event, to be taxed if not agreed, with certificate for counsel;

(2)  Save as above, costs of and occasioned by the summons be paid by the plaintiff to the defendants in any event, to be taxed if not agreed, with certificate for counsel;

(3)  Save as above, costs of the hearing on 20 June 2022 be costs in the cause of this action, with certificate for counsel; and

(4)  The costs order for the pre-trial review be in the cause of the action.

53.  If there is no application to vary the costs order nisi within 14 days, it shall become absolute.  

54.  Lastly, I thank both counsel, as well as Ms Cabrelli, for their helpful assistance.

Mr Kenneth Lam leading Miss Angela Mui, instructed by Alex To & Co, for the plaintiff

Ms Alice Cabrelli of Boase Cohen & Collins, for the 1^st and 2^nd defendants

Mr Abel Lam, instructed by Herbert Tsoi & Partners, for the 3^rd and 4^th defendants