Ho Kwan Yiu v Dennis Kwok & Others [2022] HKCFI 779 – Slander Case “Uniquely Suitable” for a Jury Trial

https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=143006&currpage=T

Coram: The Hon Madam Justice Queeny Au-Yeung

Date of Decision: 18 March 2022

Representation:

Mr Sunny Chan, instructed by K.C. Ho & Fong, for the Plaintiff

Mr Kenneth Lam, Mr Jun Lee and Mr Vincent Shum, instructed by John C H Suen & Co, for the 1^st and 3^rd Defendants

Mr Erik Shum and Ms Christy Wong, instructed by Ho, Tse, Wai & Partners, for the 2^nd Defendant

Decision:

• This is a high profile case in slander.  The parties were, at all material times, members of LegCo.  The plaintiff alleges that offending words were uttered by the defendants implicating the plaintiff as being associated with triad members.  The main defences are one of justification and a Reynolds defence.
• By a consent summons, the parties apply for a trial before a bilingual judge and a jury.  A Master directed that the application be dealt with by a judge in chambers.
• The starting point is section 33A(1) of the High Court Ordinance, Cap 4, which provides that where on the application of any party to an action, the Court is satisfied that there is in issue a claim of slander, the action “shall be tried with a jury, unless the Court is of the opinion that the trial requires any prolonged examination of documents … which cannot conveniently be made with a jury.”
• This section is distinguishable from section 11 of the UK Defamation Act 2013 which removed the statutory presumption in favour of jury trials for defamation actions commenced in England on or after 1 January 2014.
• Mr Kenneth Lam (with Mr Jun Lee and Mr Vincent Shum) submit that for defamation actions, the norm is for the action to be tried with a jury if one party so chooses, unless the proviso applies: DR Esthetic Product v Next Magazine Publishing Ltd HCA 2776/2006, 21 August 2009, §13, DHCJ Au (as he then was).
• Having considered the submissions of counsel, I am of the view that this case is suitable for trial by a jury for the following reasons:
• Firstly, there is huge public interest in this slander action due to the following indisputable background:
• (1) At all material times, all the parties to this action were elected and serving members of Legco;
• (2) The plaintiff was/is also a solicitor in private practice, a Justice of the Peace, and a former President of the Law Society of Hong Kong. He has been re-elected and is a serving member of Legco;
• (3) D1 was/is a barrister in private practice, and the then only representative of both branches of the legal profession in Legco; and
• (4) The 21 July Incident was a significant incident in Hong Kong which is of large public interest.
• Secondly, in respect of the defence of justification, D1 and D3 shall seek to establish 3 facts as true at the trial (§9 of their defence):
• (1) That the plaintiff was associated with gangsters and behaved like one;
• (2) That the plaintiff was a shameful person who knew gangsters and instructed them to do things for him; and
• (3) That the plaintiff was the primary culprit or one of the culprits in the 21 July Incident.
• As Steven Rares, a judge of the Federal Court of Australia, has aptly stated in his article entitled “The jury in defamation trials” (2010) 33 Australian Bar Review 93: “One of the great virtues of having a jury try the substantial factual issues in a defamation action is that, particularly in mass media cases, they represent the very audience to which the defamatory publication was addressed. In assessing whether or not a publication, first, is defamatory in the sense complained of and, second, has been defended under defences such as truth, honest opinion or fair report, a jury of ordinary reasonable people is able to evaluate the competing factual issues bringing to bear the moral and social standards they share with the community at large. And, they are better placed than judicial officers to assess how ordinary reasonable people understand mass media publications. (at p99) In my opinion the issues which go to the heart of a defamation trial are best determined by a cross section of ordinary citizens bringing to bear their experience of life. (at p104)”
• Given the public interest involved and the scope of the justification issue, I am of the view that the jurors, representing the public, are the most suitable persons to determine if there was defamation or justification and decide on the reputation of the plaintiff in the public eye.
• Thirdly, the Reynolds’ issue involves a novel question of law, i.e. whether words uttered by members of Legco whilst they were having an “off-site” meeting outside the Legco Building in Admiralty are immune from action in the law of defamation by reason of common law absolute privilege or by reason of Article 77 of the Basic Law and/or sections 3 and 4 of the Legislative Council (Powers and Privileges) Ordinance, Cap 382 (§§3.8 and 3.9 of D1 & D3’s defence).
• That question of law is distinct and separable from the rest of the action. There is little risk of the jury being confused as to the role between judge and jury.
• The defendants further plead Reynolds qualified privilege and reply-to-attack qualified privilege (§§11 and 12 of D1 & D3’s defence). The plaintiff’s reply contains 2 pleas of malice (§§8 and 9 of reply). These can be dealt with by requiring the jury to return special verdicts on the allegations of malice. The Court of Final Appeal has, in Jonathan Lu v Paul Chan Mo Po (2018) 21 HKCFAR 94, §§37-40 authoritatively set out the way to direct the jury.
• This is unlikely to be a case where the jury has to answer an “exam paper” at the end of the trial.
• Fourthly, this court is told that the documents involved at the trial will not be voluminous. As a maximum, according to the defendants, the documents are likely to comprise only 3 lever-arch files, totaling about 559 pages, with some video clips concerning well-known public events. They are already in the public domain and a juror should have little difficulty understanding them.
• The documents are mostly press articles, which members of the public are used to reading in their daily lives. They can be read casually, and the contents do not contain technical terms. Those documents do not require prolonged examination as contemplated by section 33A of the High Court Ordinance. I am satisfied that the key documents which need to be placed before the jury are in fact manageable.
• The trial is likely to take no more than 10 days with a jury and it cannot be seriously argued that the trial will be substantially prolonged because of there being a jury.
• Fifthly, in the cases cited in paragraphs 5-9 above, one of the parties had objected and the court had to exercise its discretion to order or not order a jury trial. In the present case, all the parties are represented by counsel and have consented to a jury trial. Although the court is not bound by their consent, this is a case where the parties have made an informed and correct choice.
• In the light of the 5 factors above, I am satisfied that this case is uniquely suitable for a jury trial. I therefore give an order in terms of the consent summons dated 10 November 2021.
• I thank counsel for their assistance.