Defence of Consent in Hong Kong Defamation Law

DCCJ 4437 / 2016 – [2018] HKDC 514 Yiu Shing Yin (姚盛賢) v Kwok Yik Ho (郭奕河) – http://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=115106&currpage=T

Before: Deputy District Judge Kenneth K Y Lam in Court

Date of Hearing: 26, 27 & 28 March 2018

Date of Judgment: 28 March 2018

Date of Handing Down Reasons for Judgment: 9 May 2018

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REASONS FOR JUDGMENT

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Introduction

1. This is a libel action arising out of some Chinese words (“the Words”) jointly published by the 1st Defendant (“Mr Kwok”) and the 2nd Defendant (“Mrs Kwok”) on a glass window at Shop 80 (“the Shop”), 1st Floor, Fu Tor Loy Sun Chuen Stage 2 (富多來新邨第二期) (“the Estate”), Tai Kok Tsui, Kowloon, Hong Kong.
2. The publication of the Words and the fact that the Words were prima facie defamatory of the Plaintiff (“Mr Yiu”) had been admitted by the Defendants (“Mr and Mrs Kwok”).
3. The main issues in dispute were: – (1) Whether the Words were substantially true (“Issue 1”); (2) Whether the publication was on an occasion of qualified privilege and not too wide (“Issue 2”); and (3) Whether the publication was with the consent of Mr Yiu (“Issue 3”). (Collectively, “the Issues in Dispute”)
4. The trial took 3 days. The only witnesses were the parties.
5. At the end of the last day, I resolved the Issues in Dispute in favour of Mr and Mrs Kwok, dismissed the action, ordered Mr Yiu to pay all costs of the action, including all costs reserved, to Mr and Mrs Kwok, to be taxed if not agreed, with Certificate for Counsel (“the Judgment”), and indicated I would be handing down my full reasons for the Judgment in writing, which I hereby do.

Issue 3 – Consent

• All parties agreed consent could be a complete defence to any claim of defamation. That was clear, by way of example, from what DHCJ Q Au-Yeung (as Au-Yeung J then was) had said in Poon Chi Hung William v Yuen Wai Chung (HCA 387/2011, 27th November 2012, paragraph 77), from what the learned editors of Gatley had said in paragraph 19.10 of their work, and from what Dr Matthew Collins QC had said in paragraph 18.01 of Collins on Defamation.
• For the purpose of “the defence of consent” within the law of defamation, the consent can be explicit, implicit, implied or inferred by the conduct of the parties.
• The English case of Carrie v Tolkien [2009] EMLR 9 neatly illustrated how the defence worked. There, the claimant operated a website with the address http://www.tolkienexaminer.blog.co.uk. It was a “blog” with a comments function. The defendant was said to have published a comment defamatory of the claimant on that blog. The claimant became aware of that comment but did not take any step to remove it for the next 22 months. Although there was never any explicit communication of consent between the parties, Eady J aptly observed the claimant’s suggestion that he suffered substantial “upset and distress” was plainly inconsistent with the objective fact of inaction on the part of the claimant, inferred that the claimant must have consented to and acquiesced in the publication of the comment, ruled that no properly directed jury would come to a different conclusion (see his paragraph 16), and summarily struck out the claimant’s case.
• The defence of consent in our present case was even stronger than the one in Carrie v Tolkien [2009] EMLR 9.
• The evidence was clear. Mr Yiu explicitly communicated his consent to the publication of the Words at the Shop to Mr and Mrs Kwok in an oral conversation with Mrs Kwok. When Mr Yiu discovered the publication of the Words by Mr and Mrs Kwok, he took no step to ask for their removal until 7 months later, whereupon the Words were promptly removed. The defence of consent was available to Mr and Mrs Kwok, and Mr Yiu’s claim was dismissed on this alternative ground also.
• In my judgment, Mr Yiu was never entitled to any relief, and this action should never have been commenced by Mr Yiu.
• I shall leave it to Mr and Mrs Kwok to decide for themselves whether they would like to provide copies of my Reasons for Judgment to the police. Application for leave would not be required, as these Reasons for Judgment are public. Mr and Mrs Kwok’s complaints to the police in relation to suspected criminal activities on the part of Mr Yiu would appear to be protected by absolute privilege: Westcott v Westcott [2009] QB 407 at 423 paragraph 36 (per Ward LJ) and 424 paragraphs 41-43 (per Stanley Burnton LJ).