THE INCORPORATED OWNERS OF ON NING GARDEN v. WONG MO CHI
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DCCJ 3473/2022
[2025] HKDC 1884
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 3473 OF 2022
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BETWEEN | ||
| THE INCORPORATED OWNERS OF ON NING GARDEN | Plaintiff | |
| and | ||
| WONG MO CHI | Defendant | |
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| Before: | Master Matthew Ho in Open Court |
| Date of Hearing: | 6 May 2025 |
| Date of Assessment of Damages: | 6 November 2025 |
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ASSESSMENT OF DAMAGES
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INTRODUCTION
1. This is an assessment of damages under a libel action. Judgment on liability in default of Defence was entered against the Defendant on 11 September 2023 (“Default Judgment”) where the Court granted an injunction against the publishing of the defamatory words with damages to be assessed.
2. The Defendant was unrepresented and absent in the assessment hearing. Having read the affirmation of service filed on behalf of the Plaintiff, I was satisfied that the Defendant had been duly notified of the assessment proceedings and hearing. The assessment hearing was therefore proceeded with in his absence.
BACKGROUND
3. The background of this libel action has been set out by Deputy District Judge M Lam (as she then was) in her decision for granting the Default Judgment dated 11 September 2023 (“Decision”). In summary:-
(1) On Ning Garden (“Estate”) is a residential complex completed in 1991 and has 2,300 residential units housing more than 2,500 residents;
(2) The Plaintiff was registered as the incorporated owners of the Estate in 1996 under section 8 of the Building Management Ordinance (Cap 344) (“BMO”). Since December 2006, the Defendant has become one of the two registered co-owners of a unit in the Estate;
(3) The Plaintiff claimed that, between 6 April 2018 and 17 July 2022, the Defendant had on multiple occasions published, or caused to publish, defamatory words both by: (a) physical means (which took the form of leaflets, notices, banners and/or posters, in large conspicuous words and coloured papers) at booths set up near the vicinity of the Estate (“Booths”)[1] and (b) digital means (which took the form of posts) on a Facebook page named “安寧花園監察組”created and managed by the Defendant with no access restriction[2] (“Facebook Page”);
(4) The relevant defamatory words have been set out in “Annexure-1” to “Annexure-8” to the Statement of Claim (“SOC”) and a brief summary of their meanings as found in the Decision[3] are recited in the Appendix hereto (“Defamatory Words”).
THE DEFAMATORY WORDS
4. In relation to the form of publication:-
(1) Annexure-1 and Annexure-3 were published through physical means at the Booths during various periods spanning between 6 April 2018 and around 30 August 2019, and thereafter through digital means at the Facebook Page;
(2) Annexure-2 was published through digital means at the Facebook Page since 12 May 2018; and
(3) Annexure-4 to Annexure-8 were published through physical means at the Booths during various periods spanning between 19 January and 17 July 2022.
5. The date and means of publication of the Defamatory Words are summarized in the table below:-
Date of publication Means of publication Annexure-1 6 April 2018 Physical & Digital Annexure-2 12 May 2018 Digital Annexure-3 30 August 2019 Physical & Digital Annexure-4 19 & 25 January 2022 Physical Annexure-5 20 to 22 April 2022 Physical Annexure-6 7 to 8 May 2022 Physical Annexure-7 22 May 2022 Physical Annexure-8 17 July 2022 Physical
6. Based on implied admission of the SOC under the Default Judgment,[4] the Court found that the Defamatory Words bore the following natural and ordinary meanings (which were also the direct, implicit and/or inferred meanings) (“Meanings”):- [5]
(1) The Plaintiff was incompetent, ineffective and dishonest in discharging its duties and using its power. It mismanaged the Estate, biased the contractors, overcharged the management fees and misused the funds of the Estate, contrary to the Deed of Mutual Covenants of the Estate (“DMC”) and the BMO;
(2) The Plaintiff had not acted or exercised its power in accordance with the proper procedures. The procedures governing holding of meetings, use of funds, charging of management fees, keeping and disclosure of books and documents were not strictly followed;
(3) The wrongful and unlawful conducts had ended up with poor cleaning service, improper lift maintenance, questionable books and accounts, wrongful use of funds, corrupted bid-rigging, falsification of proxies, over-charging management fees;
(4) The Plaintiff put its own preference above the collective interest of the co-owners and contravened the laws. Co-owners were not provided with sufficient, accurate and adequate information relating to the management or the use of the Estate’s funds, and were misled from time to time;
(5) It was imperative for the co-owners of the Estate to self-help for protecting their interests. Through self-help, they successfully defended their interests by suspending, stopping or remedying some of the wrongful acts of the Plaintiff.
7. In making such findings, the Court was in effect performing its duty under the “single meaning rule” as explained by Diplock LJ in Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 173:-
“Where, as in the present case, words are published to the millions of readers of a popular newspaper, the chances are that if the words are reasonably capable of being understood as bearing more than one meaning, some readers will have understood them as bearing one of those meanings and some will have understood them as bearing others of those meanings. But none of this matters. What does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers are reasonable men should have collectively understood the words to bear. That is “the natural and ordinary meaning” of words in an action for libel.”
8. The Meanings found under the Decision is relevant to the determination of the eventual award of damages since, in establishing the Meanings, it establishes the nature and seriousness of the libellous imputation: Oriental Daily Publisher Ltd & Anor v Ming Pao Holdings Ltd & Ors FACV 1/2012 (26 September 2012, unreported), paragraph 55.
9. I am bound by the findings under the Decision. In the assessment exercise, I shall treat the findings on the Meanings as the stings in ascertaining the damages suffered by the Plaintiff.
THE LEGAL PROCEEDINGS
10. On 6 September 2022, the Plaintiff commenced the present action against the Defendant for: (a) injunction against further publication of the Defamatory Words; (b) written apology; and (c) general damages for libel.[6]
11. Despite the Defendant has given Notice of Intention to Defend on 23 September 2022, no Defence was filed by the Defendant upon the expiry of the time limit for serving Defence on 28 February 2023. On 16 March 2023, the Plaintiff applied for interlocutory judgment against the Defendant under Order 19 rule 7 of the Rules of the District Court (Cap 336H) and Default Judgment was entered against him on 11 September 2023 on the following terms:-
(1) An injunction against the republication of the Defamatory Words (or words to similar effect);
(2) Damages to be assessed.[7]
12. In the Decision, the Court also found that:-
(1) As a consequence of the publications of the Defamatory Words, both the Plaintiff’s own reputation and its corporate reputation (representing all co-owners of the Estate) have been seriously damaged. The publication also casted aspersions on the Plaintiff’s integrity and ability to discharge its duties as incorporated owners properly and efficiently. Further or alternatively, the Plaintiff was lowered in the estimation of right-thinking members of society generally and was subjected to hatred, contempt or ridicule;[8]
(2) The Defamatory Words referred to the Plaintiff by expressly naming it or by being understood as referring to it based on the facts that the Plaintiff had exercised and performed its duties and powers of managing the Estate. Such facts also formed part of the general knowledge of some of the readers, as co-owners, occupiers of the Estate, passers-by who frequented the Booths, the Facebook users who accessed to the Facebook Page and other persons who dealt with the Plaintiff, to the effect that the Defendant was reasonably understood to refer the management committee to the Plaintiff as well as to refer the one who managed the common parts or affairs of the Estate to the Plaintiff. Further, such facts also formed part of the extrinsic facts possessed by those recipients of the Defamatory Words which established an indirect reference to the Plaintiff. [9]
EVIDENCE AT THE ASSESSMENT HEARING
13. The matter has now come before me for assessment of damages.
14. In terms of evidence:-
(1) The Plaintiff relied on a witness statement dated 7 August 2024 made by Cheng Chun Hung (“Mr Cheng”), the area manager of the Estate’s management company, which Mr Cheng adopted as his evidence-in-chief;
(2) The Defendant did not prepare any witness statement nor did he attend the assessment hearing. The only evidence before me was an affirmation made by the Defendant on 5 May 2023 (“Defendant’s Affirmation”) in support of his application to stay the Plaintiff’s action out of time, which was rejected by the Court in the Decision.[10]
15. Subject to my observations below, I accept Mr Cheng’s evidence in general. His evidence is largely consistent with the contemporaneous documents and was not challenged at the hearing. When being asked the number of people stopping by the Booths and visiting the Facebook Page on various occasions (which he did not specify in his witness statement), Mr Cheng fairly accepted that he was unable to provide the number as he had no information about it. I found him to be an honest and reliable witness.
16. On the other hand, no evidence was adduced by the Defendant to rebut the Plaintiff’s case. The Defendant’s Affirmation, which was prepared in support of his unsuccessful stay application, is irrelevant and in any event peripheral. I do not find the Defendant’s Affirmation helpful for the purpose of resolving the issues raised in the assessment hearing. I give no weight to the Defendant’s Affirmation.
17. Relying on Mr Cheng’s evidence, Mr Sin, counsel for the Plaintiff, submitted that the award should be in the sum of HK$1.2 million, or alternatively within the range of HK$800,000 and HK$1.6 million. Mr Sin premised his estimation upon a set of comparators, which I will deal with in the latter part of this judgment.
LEGAL PRINCIPLES
18. The general principles applicable to assessment of general damages for libel are well-settled. As stated by the Court of Final Appeal in Oriental Daily Publisher Ltd & Anor v Ming Pao Holdings Ltd & Ors (supra), paragraphs 35, 39, 112-113 and Gatley on Libel and Slander (13th ed), §10-005:-
(1) An award of general damages in libel is compensatory in nature. Such awards have a threefold function, namely: (a) for the damage to the plaintiff’s reputation, (b) to vindicate the plaintiff’s good name and (c) to take account of the distress, hurt and humiliation which the defamatory publication has caused to the plaintiff;
(2) General damages are “at large” since the exercise of assessment necessarily involves a substantial degree of subjectivity. The award cannot be arrived at by any purely objective computation;
(3) In performing the assessment, the Court must take into account all the relevant circumstances of the case. It is not possible to list exhaustively all the circumstances which may bear on the assessment, but certain circumstances have been identified as important, namely:-
(a) Gravity of the libel – the more closely it touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be;
(b) Extent of publication – a libel published to millions has a greater potential to cause damage than a libel published to a handful of people;
(c) Conduct of the defendant – where the defendant asserts the truth of the libel and refuses any retraction or apology, comparing to a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. Aggravated damages may be granted to compensate for additional injury caused to the Plaintiff's feelings by the defendant's conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the Plaintiff in a wounding or insulting way;
(d) Matters tending to reduce damages – eg evidence of the Plaintiff’s bad reputation, or evidence given at trial which the jury are entitled to take into account.
19. In an assessment hearing, the role of the parties is to assist the Court over the question of “how much” it would be adequate to vindicate the plaintiff’s name. It is a task of weighing all the relevant factors with reference to awards in other defamation cases: Gatley on Libel and Slander (13th ed), §10-009. Broadly comparable cases in forming a corpus should lead to broadly comparable results.
GENERAL DAMAGES
20. With the above general principles in mind, I now turn to the assessment exercise.
(A) Plaintiff’s Reputation
21. It is well-established that an incorporated owners has its own reputation and corporate reputation, based on its credible integrity and ability to discharge its duties and functions as incorporated owners protected by the law. It has the right to sue for statements defamatory of itself or directed against all the co-owners.[11]
22. The Plaintiff was incorporated in May 1996 and has since performed duties and exercised functions provided under the BMO and the DMC. In April 2018 (when the Defamatory Words were first published), the Plaintiff has already enjoyed its own reputation and corporate reputation for over two decades.
23. Apart from the publication of the Defamatory Words, there is no evidence that the Plaintiff has suffered from any low credence since its incorporation. As stated by Mr Cheng, the Plaintiff had not been found civilly or criminally liable for any matter identical or related to the allegations under the Meanings since its incorporation, nor did he receive or handle any complaint relating to the same.
24. Further, according to Mr Cheng, who had participated in both preparatory stage and actual proceedings of the management committee and owners’ meetings, the committee and the Plaintiff had followed the laws under the BMO in holding meetings, management of the Estate and its funds, devising management fees as well as during invitation for tenders.
25. By reason of the above, I accept that the reputation which the Plaintiff enjoyed have been untarnished and unblemished. The Plaintiff also deserves good character of honesty.
(B) Gravity of Libel
26. In view of the Meanings of the Defamatory Words found under the Decision, I am of the view that some of the libels are of less severe character. These allegations, objectively understood, refer to the general quality of the Plaintiff’s service and carry the nature of the Defendant’s subjective opinion only. They include allegations that:-
(1) The Plaintiff was incompetent and ineffective;
(2) The cleaning service and lift maintenance were poor and improper;
(3) The Plaintiff put its own preference above collective interest of the co-owners;
(4) Co-owners were not provided with sufficient or accurate information relating to management or use of funds;
(5) Co-owners were required to self-help to protect their own interests.
27. There is also another category of Defamatory Words in which the Defendant alleged that the Plaintiff had not acted in accordance with, or strictly in accordance with, the proper procedures. In my view, this category of words carries mild to moderate severity because, even if it were to be believed by the readers at large, it would only reflect on the general competence of the Plaintiff as there was no imputation of any bad faith or illegality per se.
28. However, some of the libels are of serious nature. These allegations carry the imputation of, and some of which even point directly to, the Plaintiff’s dishonesty or even involvement in criminal activities. The seriousness of these allegations is further fortified by the untarnished reputation enjoyed by the Plaintiff for over two decades. They include allegations that:-
(1) The Plaintiff was dishonest in discharging its duties and using its power;
(2) The Plaintiff was biased in favour of the contractors and misused the funds of the Estate;
(3) The Plaintiff maintained questionable books and accounts;
(4) The Plaintiff was involved in corrupted bid-rigging and falsification of proxies.
29. Example of Defamatory Words with Meanings falling under this category include:-
(1) “To eradicate corruption and promote integrity, the last 7 days to authorize a proxy to cast vote …” (Annexure-3 – 1st Words);
(2) “Corrupted bid-rigging gave rise to problems … Co-owners who had inspected the accounts of the Plaintiff were deliberately prevented from obtaining evidence” (Annexure-3 – 2nd Words);
(3) “Contact the owners: assist in exposing the collective falsification of proxy votes” (Annexure-4 – 3rd Words);
(4) “Financial scam: bypass the “yearly reasonable slight upward adjustment in management fees”” (Annexure-5 – 1st Words; Annexure-6 – 1st Words);
(5) “You believe it or not? There had been co-owners who discovered false instruments appointing proxies! Were you involved?” (Annexure-8)
30. I shall bear in mind the above observations when assessing the quantum of general damages.
(C) Extent of Publication
31. It is Mr Cheng’s evidence that the Defamatory Words had been published through both physical and digital forms for a period of over 4 years between 6 April 2018 and 17 July 2022.
32. Regarding the physical forms of the Defamatory Words:-
(1) They were published through the Booths, which were set up one at a time (in which context I shall call it the “Booth”), outside a kindergarten and a shopping arcade at No 10 Sheung Ning Road. I have read the map provided by Mr Cheng and find that the location formed one of the major points of commuting into and out of the Estate;
(2) On each occasion, leaflets and notices were distributed to passers-by, while banners and posters were also affixed near the Booth. The relevant Defamatory Words were published with coloured papers in conspicuous fonts. Snappy catchphrases were used to maximize the readers’ attention. Mr Cheng has exhibited copies of the leaflets and photos of the banners which support his observation;
(3) Mr Cheng claimed that he first saw the Booth on 6 April 2018. Since then, he had witnessed both residents and non-residents of the Estate being attracted and walking close to the Booth, and on each occasion the Defendant, who was sitting there, handing over leaflets to the passers-by and pointing to the banners or posters hoisted there. The Defendant was also seen making disparaging remarks of the Plaintiff to the passers-by, who would at times stay for quarters of an hour to engage in discussion with him;
(4) During the assessment hearing, Mr Cheng informed the Court that, according to his estimation, there were over 1,000 people passing through the Booth every day. However, when asked about the number of passers-by attracted to the Booth on each occasion, Mr Cheng replied that he had no information about it (possibly because he was not, and indeed could not, be there as an observer all the time on each and every occasion) although on several occasions he did witness some passers-by being attracted to the Booth. Mr Cheng has in his witness statement enclosed two photos taken of the Booth between 7 and 8 May 2022 but none of them showed any passers-by attracted to the Booth;
(5) Despite my remarks above, I am aware that whilst some passers-by might not have been aware of the Defamatory Words posted at or near the Booth, it was unnecessary for those who were aware of the same to stop by or approach the Booth in order for the Defamatory Words to reach them. This was especially so when many of the Defamatory Words were published by banners and posters using eye-catching colours and in large or conspicuous fonts.
33. Regarding the digital form of the Defamatory Words:-
(1) They were published on the Facebook Page (by photos and narratives) which was accessible by the general public without restrictions. The relevant Defamatory Words were first published on 6 April 2018 and entirely removed from the Facebook Page on 12 September 2023, ie one day after the Default Judgment being entered against the Defendant;
(2) According to Mr Cheng, the Facebook Page recorded itself having more than 100 subscribers on 11 September 2023 (ie the date of the Default Judgment). Despite Mr Cheng suggested that the Facebook Page was accessible to the public unrestrictedly and as a matter of principle the number of viewers on each post of the Facebook Page could exceed the number of subscribers, the Defendant’s posts of Annexure-1 and Annexure-3[12] only showed a number of viewers of “19” and “87” respectively. Apart from the above, no evidence has been adduced as to the number of viewers of the other posts on the Facebook Page. Indeed, the Defendant’s posts of Annexure-1, Annexure-2 and Annexure-3 only attracted single digits on number of “Like”. There is no evidence that the Defendant had published the relevant Defamatory Words elsewhere or there was any secondary publication of the Defendant’s posts on the Facebook Page.
34. In the assessment hearing, Mr Sin referred the Court to Cairns v Modi [2012] EWCA Civ 1382 and Clarke (t/a Elumina Iberica UK) v Bain [2008] EWHC 2636 for the proposition that the percolation phenomenon of putting defamatory information into public domain is a legitimate factor to be taken into account in the assessment of damages.
35. In Cairns v Modi (supra), it was accepted at trial that the defamatory tweet in question had reached about 65 immediate publishees (the median figure in the range agreed by expert witnesses). The English Court of Appeal, by referring to the observation by Bingham LJ in Slipper v British Broadcasting Corp [1991] 1 QB 283 and the “grapevine effect” identified in Australian cases such as Crampton v Nugawela [1996] NSWSC 651, expressed that:-
“… as a consequence of modern technology and communication systems any such stories will have the capacity to “go viral” more widely and more quickly than ever before. Indeed it is obvious that today, with the ready availability of the world wide web and of social networking sites, the scale of this problem has been immeasurably enhanced, especially for libel claimants who are already, for whatever reason, in the public eye. In our judgment, in agreement with the judge, this percolation phenomenon is a legitimate factor to be taken into account in the assessment of damages.”
36. Similar observation was made by the Court in Clarke (t/a Elumina Iberica UK) v Bain [2008] EWHC 2636, paragraph 55:-
“The consequences of putting information × into the public domain are more far−reaching in a world where things you say are linked to, easily passed around and can pop up if [the subject's] name is put into a search engine by, for example, a prospective employer. The web makes a lie of the old cliche that today's newspaper pages are tomorrow's fish and chip wrapping. Nowadays, × the things × in a newspaper are more like tattoos − they can be extremely difficult to get rid of.”
37. I agree with the above authorities for the percolation phenomenon of defamatory publications made in social networking sites (which can often deepen the grapevine effect) and the proposition that removal of the original publication does not always mean that the “tattoo” can be completely removed as it can find way to be lurked into hidden springs and may prance at an unknown time in the future as Mr Sin submitted.
38. For this reason, in assessing the general damages, I shall not adopt a rigid approach when considering the relatively limited amount of viewers on some of the Defendant’s posts on the Facebook Page and the lack of evidence on any re-publication of the articles. Nevertheless, the sentiments expressed in the above authorities should be put into perspective. The said evidence is still relevant when considering: (a) the scope of immediate readers who would be reached by the defamatory publications and (b) the chance and scope of the defamatory publications being pranced in the future.
39. Between May 2018 and May 2022, the Plaintiff has instructed solicitors to issue not less than 11 letters to the Defendant demanding for retraction of and an apology for the libellous statements. These letters were sent by registered or ordinary posts to the Defendant’s unit at the Estate.[13] Notwithstanding the persistent demands, no retraction and apology has ever been made by the Defendant save for the removal of the defamatory contents from the Facebook Page after the Default Judgment was entered into.
40. There is no evidence before me showing that the Defendant was or could have been unaware of the Plaintiff’s demands. Indeed, given the number of letters sent to the Defendant during a span of almost 4 years, it would be quite unimaginable that the Defendant could not have received any of them. I find the Defendant’s refusal to retract and apologize deliberate if not contumelious.
41. Mr Cheng also emphasized in his witness statement that the Defendant tried to reinforce the Meanings of the Defamatory Words by making them more “memorable” to the readers. Mr Cheng raised the following examples in his statement:-
(1) Annexure-3 – 2nd Words was a recapitulation of Annexure-1, with the former made a year after the latter;
(2) Annexure-4 and Annexure-8 were made 6 months apart, both conveying similar meaning that the Plaintiff had committed forgery on the appointment of proxies at the owners’ meeting;
(3) Annexure-5 and Annexure-6 were made only 2 weeks apart, both suggesting that the Plaintiff had over-calculated the management fees, with the latter giving enhanced sting by stating that the Plaintiff was run by black-box operation;
(4) Annexure-1 and Annexure-3 were made twice in identical content, with the physical form followed by digital form.
42. I am persuaded by Mr Sin’s submission. In my view, the above is relevant to my assessment exercise as subsequent recapitulation or repetition of defamatory statements is akin to persistent assertion on the truthfulness of one’s previous publication.
(E) Effect of the Defamatory Words on the Plaintiff’s reputations
43. As stated in paragraph 6 above, the Court has, in the Decision, identified 5 distinct sets of Meanings of the Defamatory Words. I agree with Mr Cheng that the Defamatory Words had the effect of discrediting the Plaintiff to have:-
(1) Mismanaged its finance;
(2) Unlawfully used the funds of the Estate;
(3) Incurred unjustified expenses;
(4) Misjudged the needs for engineering works;
(5) Over-charged the management fees;
(6) Failed its duty of disclosure;
(7) Conducted its business contrary to the prescribed procedures;
(8) Engaged in bid-rigging activities;
(9) Manipulated meetings and votings; and
(10) Failed to conduct proper maintenance of the common parts.
44. In the absence of any contrary evidence from the Defendant, I accept Mr Sin’s submission that the Defamatory Words were injurious to the Plaintiff’s reputation, in the way that its integrity, impartiality, honesty, competency and efficiency were adversely affected.
(F) Effect of Vindication
45. Mr Cheng claimed that the Default Judgment was far from sufficient to vindicate the Plaintiff’s reputation as it was not a decision on the merits, comparing to a judgment made after trial where the trial judge would rule on the credibility of the defendant’s witnesses thereby vindicating the plaintiff’s reputation: Gatley on Libel and Slander (13th ed), §10-002.
46. As observed by HH Judge Parkes QC in ReachLocal UK Ltd v Bennette [2014] EWHC 3405 (an authority cited by Mr Sin), at paragraph 56:-
“A reasoned judgment may provide some degree of vindication: see Purnell v Business Magazine Ltd [2008] 1 W L R 1. Laws LJ, who gave the main judgment, held that a prior narrative judgment rejecting a defence of justification was capable of providing some vindication of a claimant's reputation, but that there were also cases where the judgment would provide no or no significant or reckonable vindication, such as where a defence of justification has been struck out and no consideration has been given to the merits. Here I am assessing damages following a judgment entered in default. Given that this is not a contested decision on the merits, it seems to me that the effect on damages of any vindication in this judgment must be marginal.” (emphasis added)
47. I agree with Mr Sin’s submission. The Default Judgment is not a decision on merits and I find it of marginal effect in vindicating the Plaintiff’s reputation.
(G) Comparators
48. On the quantum of damages, Mr Sin relied on the following authorities and submitted that the Court should adopt the appropriate comparators for bracketing the reasonable awards:-
(1) The IO of Tung Lo Court v Tsui Wai YipDCCJ 3333/2011 (4 August 2024, unreported) (DC) and [2015] 4 HKLRD 397 (CA);
(2) The IO of Allway Gardens v Lam Yuen Pun[2022] HKDC 608;
(3) The IO of Kam Ying Court (II) 訴 羅兆冲[2022] HKDC 267;
(4) 港基物業管理有限公司 訴 杜焯耀及另十四人[2021] HKCFI 909;
(5) Mok Kam Kwai v Lam Mo Fat HCA 1868/2010 (6 March 2014, unreported);
(6) Leung Chi Ching Candy v Yeung Hon Sing[2019] HKDC 1428 (DC) and [2021] 5 HKLRD 684 (CA);[14]
(7) Tam Heung Man v The IO of Lung Poon Court (Blocks A-f)[2019] HKDC 401;
(8) Chow Wing Kai also known as Wave and Wave Chow v Liang Jing [2021] 2 HKLRD 1189;
(10) John Raymond Luciw v Wolfgang Derler and Others HCA 2148/2011 (28 July 2013, unreported).
49. I do not intend to recite the facts of the above decisions in detail. In a nutshell:-
(1) In Tung Lo Court (supra), an owner of the building published 4 letters during a time span of 2 months accusing the management committee of the Plaintiff of black-box operation (including manipulation of accounts to raise management fees), doing dirty tricks and using distasteful means to maintain self-interest and get profit (practising deception and forgery on proposed resolutions and proxies) as well as running the plaintiff like a triad society by flouting the law, being high-handed, unscrupulous and predisposed to take unjustified risks, with the result that all co-owners had to engage in self-help. The letters were addressed to the co-owners, management committee and the District Office. The Court awarded general damages in the sum of HK$400,000. On appeal, it was found that only one out of the 4 letters had made express reference to the plaintiff and the damages awarded were reduced to HK$200,000;
(2) In Allway Gardens (supra), a district council member made two publications alleging that the Plaintiff had conspired, in a way which was criminal, corrupted and malicious, to internally decide a management company for the estate thereby forcing the residents to pay higher management fees. The publications were made by way of leaflet and in newspaper, the former printed in underlined, bold and large fonts. Readership of the former’s readership was confined to those of the estate while the latter went beyond the estate’s residents. The Court found that the effect and extent of libel were less severe than Tung Lo Court and awarded damages in the sum of HK$80,000;
(3) In Kam Ying Court (II) (supra), an owner of the building expressed calumny to a news reporter, followed by republishing the news article in a street stall close to the building accusing the Plaintiff on questionable levy of management fee, misuse of reserve and mismanagement of finance, thus insinuating the plaintiff being unable to discharge its duties and to maintain the integrity expected. The article was also replicated on internet. The Court awarded HK$200,000 as general damages;
(4) In 港基物業管理 (supra), two resident owners (who were also members of the management committee) published a leaflet to passers-by in the estate accusing the Plaintiff management company of bypassing procedures, lying, breaching of trust, concealing facts and depriving owners the right to information. Further sting that the Plaintiff had participated in bid-rigging with contractors, suspicion for committing corruption and receiving bribes was also found by the Court. General damages in the sum of HK$250,000 was awarded;
(5) In Mok Kam Kwai (supra), the Defendant (an indigenous inhabitant) published the libellous statements through 4 banners in the course of 2 months against the chairman of the rural committee and a member of the District Council accusing them for being incompetent, in dereliction in discharge of duties, unfitness to hold the office and favouring third party in allowing conflict of interest. The banners were posted at conspicuous spots of the village with heavy traffic around, each consisting of snappy and catchy phrases. The Court awarded general damages in the sum of HK$400,000;
(6) In Leung Chi Ching Candy (supra), a chairperson of the management committee published 6 articles by way of leaflets, letters and meeting minutes in a span of 2 years against the former chairlady accusing her of non-disclosure of renovation price and inferring corruption with suppliers of management services; and the incorporated owners for putting forward a money wasting renovation project and practising a fraud by deceiving the owners in signing or by forging their signatures for proxies. The publication of the materials was confined to the residents. The Court took into account, inter alia, the Plaintiff being attacked in an office of honour, the number of publications, the duration of time span and the number of readers and awarded general damages of HK$400,000;
(7) In Tam Heung Man (supra), the Defendant published two printed notices within a span of 2 months addressing to the entire residential estate with about 3,340 units in total and accusing the Plaintiff (a district councillor) of being unprofessional, a trouble-maker and a cheat, that she misled the public under the motivation of selfish desire. The Court granted, inter alia, general damages at a total sum of HK$400,000 (HK$200,000 for each of the notices);[15]
(8) In Chow Wing Kai (supra), a team member accused his team leader by post on Facebook (republished 3 further times by various digital means) for giving legally questionable and unethical treatments on team members, rendering “adverse reflection on the professional reputation” on the Plaintiff. The Court considered the libel was in fact complaints which did not involve any criminal offences and should be petty in the eyes of reasonably ordinary person. The Court awarded general damages in the sum of HK$250,000;
(9) In International Social Service (supra), the Defendant published 21 articles through internet during a span of 8 to 9 months referring to the Plaintiff NGO accusing the latter for committing criminal offences such as fraud and theft, conspiring to defraud or cheat the defendant’s clients, and misusing public funds. The Court took into account the nature, duration and coverage of the libel, the defendant’s persistence, the consequences of the libel brought to the Plaintiff and the vindication on the Plaintiff and awarded general damages in the sum of HK$800,000;
(10) In John Raymond Luciw (supra), the Defendant created a Facebook page in which he issued post accusing the Plaintiff as a homosexual and paedophile (which the Court described as “a criminal behaviour that is of the most reprehensible nature”. The post lasted for a duration of about 2 months. The Plaintiff later obtained default judgment in respect of his defamatory action. The Court considered the potential wide coverage of the Facebook page created by the Defendant and inferred that a large but unquantifiable number of users were likely to have read it and awarded general damages in the sum of HK$1 million.
DISCUSSION
50. As a starting point, I find that Tung Lo Court (supra), Kam Ying Court (II) (supra) and 港基物業管理 (supra) are appropriate authorities to begin with for setting a bracket for the award of general damages in the context of libellous publications made by co-owners regarding building management issues. In these cases, defamatory statements were made by co-owners against the incorporated owners or management company with stings made against the Plaintiffs’ integrity (with effect broadly similar to the present case). In those decisions, the Court awarded general damages in the range of HK$200,000 to HK$250,000 for singular defamatory publication.
51. The present case concerned 8 rather than a single publication. In this regard, Mr Sin referred me to Mok Kam Kwai (supra), Leung Chi Ching Candy (supra), Tam Heung Man (supra) and International Social Service (supra) for the purpose of demonstrating the spectrum within which the appropriate bracket should lie where libellous statements were repeatedly made by the Defendants casting aspersions on offices of honour. In those cases, the Court awarded damages to the Plaintiffs in the range of HK$400,000 to HK$800,000.
52. Of these authorities:-
(1) In Mok Kam Kwai (supra), libellous statements were published through 4 banners in the course of 2 months and the Court awarded the sum of HK$400,000. Relying on this authority, Mr Sin drew analogy with Annexure-4 to Annexure-7 and invited me to consider them as a group and make an award in the sum of HK$400,000;
(2) In International Social Service (supra), 21 articles were published through internet during a period of 8 to 9 months and the Court awarded the sum of HK$800,000. Mr Sin submitted that I should make reference to this case when considering the award for Annexure-1 to Annexure 3, to which the damages should not be less than HK$800,000;
(3) In Tam Heung Man (supra), defamatory words were published through two printed notices within a span of 2 months and the Court granted general damages at $200,000 for each of the notices. Mr Sin submitted that this authority opened a possibility that I might approach the assessment with respect to the number of publications. By adopting this approach, Mr Sin submitted that the Plaintiff should be potentially entitled to HK$1.6 million (i.e. HK$200,000 x 8 publications).
53. Whilst I find these authorities to be relevant in indicating the reasonable range of damages to be awarded in the circumstances, I am not entirely persuaded by Mr Sin’s submissions above.
54. For Mok Kam Kwai (supra), although some assistance can be derived from it for the assessment exercise in respect of Annexure-4 to Annexure-7, I have reminded myself that the Plaintiff, being an incorporated owners, is in a position akin to that of a corporate claimant, to whom awards are significantly lower than awards to a person: John Raymond Luciw (supra), paragraph 31. The same consideration also applies when I approach the other authorities cited by Mr Sin such as Leung Chi Ching Candy (supra), Tam Heung Man (supra) and Chow Wing Kai (supra).
55. For International Social Service (supra), 21 articles were published by the defendant with maximum reads of about 800 (to which the Court found to be “much less than expected”).[16] This must be contrasted with the present case where only 3 publications were published digitally with much less number of actual viewers. In my view, the effect of percolation in International Social Service (supra) is more serious than the present case, both in terms of the actual number of immediate readers and the chance that the libellous articles might prance in the future.
56. I also reject the arithmetical approach suggested by Mr Sin through reference to Tam Heung Man (supra). It is well-established that damages for defamatory statements is “by large” and a mechanical or arithmetical approach for assessment of damages is wrong in law. As the Court of Appeal observed in Tung Lo Court (supra) at paragraph 60:-
“Mr Mak suggested that an arithmetical approach should be adopted. There are four statements and based on the Judge’s award of HK$400,000, the damages for D3 should be (HK$400,000 / 4) = HK$100,000. We disagree. As a matter of principle, a mechanistic approach for assessment of damages is always wrong. As Gatley explained at [9.5]:
“Damages are “at large” in the sense that they cannot be assessed by reference to any mechanical, arithmetical or objective formula and they are peculiarly the province of the jury (where there is a trial by that method). They jury (or judge if sitting alone) is entitled to take into consideration a wide range of matters including the conduct of the claimant, his credibility, his position and standing and the subjective impact that the libel has had on him, the nature of the libel, its gravity and the mode and extent of its publication, the absence or refusal of any retraction or apology, and the conduct of the defendant from the time when the libel was published down to the verdict …””
57. For the above reasons, while I shall bear in mind the spectrum of damages as demonstrated by the above authorities, I do not intend to perform a detailed arithmetical comparison between the facts of those authorities with those of the present case. In my view this is not how the assessment exercise should work. It suffices to say that the assessment exercise is “at large” and each case depends on its own facts.
58. Bearing in mind the above and taking into account the totality of the circumstances of the present case set out above, I assess that the Plaintiff shall be entitled to general damages in the sum of HK$500,000. I should also remark that this amount of general damages represents a global award inclusive of pre-judgment interest.
INTEREST
59. The Plaintiff asks for interest at judgment rate from the date of the Writ until payment.
60. As for interest from date of the Writ to this judgment, I make no award for pre-judgment interest for reason given in paragraph 58 above.
61. As for post-judgment interest, I order that the Plaintiff shall be entitled to interest at judgment rate from the date of judgment until payment.
COSTS
62. Costs should normally follow the event.
63. The Plaintiff’s costs of the action incurred up to 11 September 2023 have already been determined by the Court under the Default Judgment.[17] It is therefore beyond my jurisdiction to make any costs order in respect of that period.
64. As for costs incurred after 11 September 2023, I order that the Plaintiff shall have its costs, including the costs of and incidental to the assessment hearing, with certificate for counsel, to be taxed if not agreed.
ORDERS
65. In the circumstances, I make the following Orders:-
(a) The Defendant do pay the Plaintiff the sum of HK$500,000 as general damages, with interest at judgment rate from the date of this judgment until payment;
(b) The Defendant do pay the Plaintiff’s costs incurred after 11 September 2023, including costs of and incidental to the assessment hearing, with certificate for Counsel, to be taxed if not agreed.
66. Lastly, I thank Mr Sin for his assistance.
| ( Matthew Ho ) Master, District Court |
Mr Oscar Sin, instructed by Huen & Partners, for the Plaintiff
The Defendant was not represented and did not appear
Appendix
| Annexure | Meaning | |
| Annexure-1 | 1st Words | The Plaintiff has been unlawfully using its contingency fund for speculative tradings of foreign currency. |
| 2nd Words | The Plaintiff did not act in accordance with the law. In recent years, the Estate had a lot of unnecessary costly engineering works. The highly questionable one was that in 2016, the Plaintiff proposed a resolution to engage in a 12-year renovation works to the external wall, which raised concerns amongst the co-owners, who kept the Plaintiff under surveillance and discovered the Plaintiff had a practice of not acting in accordance with the law. Recently, the Plaintiff’s resolution relating to the New Year Lion Dance Activity is an example of unjustified expenditure. Similar incidents happened in the past. | |
| 3rd Words | Unclear and doubtful expenditure – “trilogy” Part one: The Plaintiff suddenly proposed a resolution and put in to a vote without giving prior notice through notice of meeting or displaying the proposed resolution as required under the BMO. Part two: After the meeting, the Plaintiff did not disclose the quotations submitted by the contractors and those submitted by the contractors whose tenders were accepted for comparison in the meeting minutes. Part three: The monthly summary of the income and expenditure was set out in ultra-small font, deliberately making it difficult to read. Account items could not be found due to lack of schedules and annotations, rendering the expenditures unclear and doubtful. All three parts are contrary to the BMO. | |
| 4th Words | Using the contingency fund for investment The member(s) of the management committee suddenly put forward a proposed resolution to use the contingency fund for making investments in foreign currency at a meeting of the Plaintiff. Fortunately, the resolution was temporarily suspended due to the objection of several co-owners. Otherwise, the incident of suddenly putting forward a proposed resolution and immediately putting it to be (sic) a vote would happen again. The contingency fund only caters for expenditure of unexpected and urgent nature according to the BMO. | |
| 5th Words | For avoidance of further unclear and doubtful expenditures in future and for rectifying the situation of the Plaintiff not acting in accordance with the law, a jointly signed petition should be prepared and delivered to the District Office requesting the District Office to strengthen its control over the Plaintiff and to rectify the situation. | |
| 6th Words | In August 2016, the Plaintiff proposed to cease making contributions to the special funds and to turn them into payments for the 12-year external wall renovation engineering works. The co-owners discovered many problems and queried whether it was lawful to split the engineering works, hence, there were co-owners distributing leaflets in order to alert the residents. As a result of the general meeting of the corporation, the co-owners voiced out their objections by pointing out that the 12-year engineering works was a waste of money, leading to the suspension of the resolution. In April 2017, upon discovery of the fresh water tank not being cleaned thoroughly, the co-owner(s) alerted the residents by distribution of leaflets and subsequently, issued letter relating to the cleaniness of the water tanks to the management company, ending up with the incrustation accumulated for several years was (sic) washed away in one go. In October 2017, the committee members of the Plaintiff scored the lift maintenance contractor(s) for the purpose of guiding the co-owners to vote for it. Co-owner(s) queried the contractor being scored the lowest by the Electrical and Mechanical Services Department was scored the highest by the committee members. Accordingly, co-owner(s) alerted the residents by distribution of leaflets, ending up with a commotion at the general meeting, causing the Plaintiff evenly allocated the votes by proxy to the contractors so as to avoid further queries. | |
| Annexure-2 | The accounts of the Plaintiff are really strange. Items involving one hundred odd dollars were fully accounted for whereas the prices of the projects worth several tens of thousand dollars were not provided. | |
| Annexure-3 | 1st Words | To eradicate corruption and promote integrity, the last 7 days to authorize a proxy to cast vote, already sufficient numbers of co-owners to run for an election to become members of the management committee, if get elected, can thoroughly inspect the books and accounts, and, have the rights to sue and to claim for improper expenditures in the past. |
| 2nd Words | Corrupted bid-rigging gave rise to problems - Co-owners who had inspected the accounts of the Plaintiff were deliberately prevented from obtaining evidence; - The procedure for cleaning freshwater tank is crude. The quality of the drinking water is unsupervised; - The quality of lift maintenance is poor, malfunction and get trapped; - The standard of the cleaning service is poor. - Excessive management fees; - Many unnecessary engineering works, draining the funds of the Estate; - Management company takes charge of the contractors, unfair competition and bid-rigging; - Co-owners are not able to know the content of an addendum to a non-disclosure agreement; - Using the special fund to engage in speculative trade of foreign currency, contingency fund becomes a high risk investment. | |
| Annexure-4 | 1st Words | Verify record: tenants, owners have chances to get a thousand dollars reward Contact the owners: assist in exposing the collective falsification of proxy votes. |
| 2nd Words | Co-owners are forced to make pre-payments of the increments of management fees for the following 3 years. The management committee overspent, resulting in substantial increments of management fees in the following 3 years. | |
| 3rd Words | Verify record: tenants, co-owners have chances to get thirty thousand dollars reward Contact the owners: assist in exposing the collective falsification of proxy votes. | |
| Annexure-5 | 1st Words | Financial scam: bypass the “yearly reasonable slight upward adjustment in management fees” Deliberated an accumulated deficit to mislead the co-owners to the need of substantially raising the management fees. |
| 2nd Words | Owners signed for cancellation of pre-payments of the raise of management fees for the following 3 years at 15% and changed the increment of the management fees to be calculated on a reimbursement basis at 3.5%. | |
| Annexure-6 | 1st Words | [same as Annexure-5 – 1st Words] |
| 2nd Words | Black box operation: the average inflation rates in the past few years were only 1%. The Estate nevertheless recorded an enormous deficit giving rise to an increment of management fees for 15%. | |
| Annexure-7 | 1st Words | The proposed resolutions at the general meeting, which the owners requested to convene were altered by the management committee. The owners shall not be fooled and be deceived again! Be alert to the real situation before sign! |
| 2nd Words | Urgent notice from the “Surveillance Group for Co-owners of the Estate”: [same as Annexure-7 – 1st Words] | |
| Annexure-8 | Surveillance Group for Co-owners of the Estate Approximately 500 co-owners “appointed proxies” to vote, chose to “substantially raise” management fee! You believe it or not? There had been co-owners who discovered false instruments appointing proxies! Were you involved? Name list of the instruments appointing proxies for the co-owners general meeting on 5 June 2022. Reward 1,000 dollars. If know any co-owners being named in the name list of the instruments appointing proxies had not appointed any third parties as proxies to vote, please phone the Defendant. It is possible that they were just a tip of the iceberg. If there are a substantial amount of forgeries, it proves that there were people who want to gain exorbitant profits! | |
[1] In the form of leaflets, notices, banners and posters which the Defendant authored and distributed.
[2] In other words, general public would be able to freely access its content without having to download it.
[3] See: Paragraph 20 of the Decision.
[4] See: Paragraphs 34 and 35 of the Decision.
[5] : Paragraphs 21, 40, 42 and 43 of the Decision.
[6] The Plaintiff did not claim any aggravated damages. As acknowledged by Mr Sin, counsel for the Plaintiff, in the assessment hearing, the Plaintiff being a body corporate was “never entitled to aggravated [damages]”. See: paragraph 58 of his Opening Submissions.
[7] The claim for written apology was abandoned at the hearing of the application for the Default Judgment on 15 June 2023.
[8] See: paragraphs 31, 32, 39 and 41 of the Decision.
[9] See: paragraphs 47 and 48 of the Decision.
[10] See: paragraphs 11 to 16 of the Decision.
[11] See: paragraphs 14 and 19 of the Decision.
[12] Exhibited as “Annexure-6” to Mr Cheng’s witness statement, being the only two posts at the Facebook Page showing the viewers counter.
[13] According to the land search record produced by the Plaintiff, the Defendant remained one of the registered owner of his unit at the Estate as of 21 July 2022.
[14] On appeal, the Court ordered a retrial but only restricted to the issue of malice (for qualified privilege).
[15] The Court also granted aggravated damages in the total sum of $400,000 ($200,000 for each of the notices).
[16] See: paragraph 23 of International Social Service (supra).
[17] To which the Court made an order nisi that the Defendant do pay the Plaintiff’s costs of the action on liability including all costs reserved, to be taxed if not agreed with certificate for counsel. The order nisi should have become absolute after 14 days thereafter.