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
REASONS FOR JUDGMENT
Introduction
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.
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”).
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”)
The trial took 3 days. The only witnesses were the parties.
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).
https://beaconheightslibel.home.blog – Reply to Attack Qualified Privilege Applied in the Incorporated Owners of Beacon Heights Hong Kong Defamation Case
香港誹謗官司之畢架山花園陳揚新大勝畢架山花園陳清華 – Incorporated Owners of Beacon Heights Hong Kong Defamation Case
Before: Deputy District Judge Jeffrey Chau in Court Dates of Hearing: 21 & 23 August 2018 Date of Judgment: 21 December 2018
Solicitor Mr Ng Man Kin of Kwok, Ng & Chan Solicitors for the plaintiff Barrister Mr Kenneth K Y Lam and Barrister Mr Anson Tso, instructed by Lui & Law Solicitors, for the defendant
Chang Wa Shan v Esther Chan Pui Kwan (2018) 21 HKCFAR 370 [2018] 5 HKC 397 [2018] HKCFA 29 (No Defamation At All – HKCFA Unanimously Allowed the Appeal of Esther Chan Pui Kwan)
Barristers Mr James Price QC and Mr Jonathan Chang, instructed by Baker & McKenzie Solicitors, for the Plaintiff (Appellant in FACV 3/2018 and Respondent in FACV 2/2018)
Barristers Mr Kenneth K Y Lam and Ms Angela Mui, instructed by Lui & Law Solicitors, for the Defendant (Appellant in FACV 2/2018 and Respondent in FACV 3/2018)
APPELLANT: Esther Chan Pui Kwan (陳佩君) also known as Chan Pui Chun (陳佩珍) (the “defendant”)
RESPONDENT: Chang Wa Shan (the “plaintiff”)
JUDGES: Mr Justice Ribeiro PJ, Mr Justice Tang PJ, Mr Justice Fok PJ, Mr Justice Stock NPJ and Lord Walker of Gestingthorpe NPJ
REPRESENTATION:
Barristers Mr James Price QC and Mr Jonathan Chang, instructed by Baker & McKenzie Solicitors, for the Plaintiff (Appellant in FACV 3/2018 and Respondent in FACV 2/2018)
Barristers Mr Kenneth K Y Lam and Ms Angela Mui, instructed by Lui & Law Solicitors, for the Defendant (Appellant in FACV 2/2018 and Respondent in FACV 3/2018)
SUMMARY:
The plaintiff’s claim for slander and malicious falsehood against the defendant is satellite litigation arising out of the high-profile probate action relating to the vast estate of Nina Wang the hearing of which began in May 2009.
In the probate action, Tony Chan claimed that Nina Wang had made a new will in 2006, displacing Chinachem Charitable Foundation Limited (“Chinachem”), the major beneficiary of the estate in her earlier will made in 2002. Tony Chan was subsequently tried, convicted and imprisoned for forgery.
The defendant once was a friend of Gilbert Leung (“Mr Leung”) with whom she had cohabited for three years. Mr Leung was to give evidence for Chinachem and the defendant offered to act “as middleman” between Dr Siu, another friend of hers, and Tony Chan’s legal team in the probate action, principally Mr Jonathan Midgley and Mr Ian Mill QC, with a view to providing information aimed at discrediting Mr Leung. The information involved documents concerning a land transaction between Mr Leung and Chinachem which might be used in cross-examination to suggest that Mr Leung had received a substantial financial benefit from Chinachem and was not an impartial or reliable witness. Initial demands for payment to be able to use the documents were refused. But when Mr Leung was being cross-examined at the trial, the defendant informed Tony Chan’s legal team that the source of the documents agreed that they could be used on the understanding that if Tony Chan were to win, the source would be rewarded.
Anticipating that the Judge would ask about their provenance, Mr Mill, through Mr Midgley, asked the defendant in a telephone call just before resumption of the hearing, who was the source of the documents and, the Recorder found, the defendant named the plaintiff “Edmund Tsang” as the source. That information was then conveyed by Mr Mill to the Judge in open court in reply to the Judge’s question. It is not disputed that the defendant’s statement was false and that the plaintiff was not the source of the documents. He claimed that his reputation was seriously injured by the defendant’s false statement and the publicity given to it by press reports. He sued her for slander and malicious falsehood. The plaintiff alleged that such reputational injury would flow from the fact that he had had business dealings with Mr Leung so that people would regard his alleged act of supplying information to be used against Mr Leung as an act of betrayal, as helping Tony Chan pursue an unmeritorious claim and as an act done with a disreputable mercenary motive.
What Mr Mill said in open court and the press reports which fairly and accurately repeated what was said in open court were undoubtedly covered by absolute privilege so that the plaintiff could not mount a claim relying on such publications. The question was whether such absolute privilege also protected the defendant from liability.
The majority of the Court (Mr Justice Tang PJ dissenting) found that as a matter of law, the defendant’s statement to Mr Mill and Mr Midgley was not covered by absolute privilege.
However, the Court found that the reputational damage the plaintiff alleged he had suffered depended on the persons to whom the defendant’s statement was published having knowledge of facts which would lead them to understand the defendant’s statement as carrying the innuendo meanings regarding betrayal, assisting an unmeritorious action and seeking to profit from doing this, mentioned above. The Court unanimously held that such facts were neither properly alleged nor proved by the plaintiff, so that the innuendo meanings were not established. The slander claim therefore failed.
The Court was also unanimous in holding that the plaintiff’s alternative claim for malicious falsehood failed because he was unable to establish that the losses which he sought to recover represented special damage flowing from the defendant’s false statement, an essential requirement of the law. However, Tang PJ also rejected the malicious falsehood claim on the basis that the claimed damages could not be recovered for the same reasons of policy as those justifying the extension of the defence of absolute privilege.
The Court unanimously allowed the appeal of the defendant (FACV 2 of 2018), and dismissed the appeal of plaintiff (FACV 3 of 2018).
The Court unanimously allows the appeal of Esther Chan Pui Kwan, the appellant in FACV 2 of 2018, and dismisses the appeal of Chang Wa Shan, the appellant in FACV 3 of 2018. We unanimously make an order nisi that Esther Chan Pui Kwan should have 50% of her costs of the action down to the end of the proceedings before the Recorder (so restoring his Order of 28 January 2016) and all her costs of the appeals to the Court of Appeal and to this Court. The parties are at liberty to lodge written submissions on costs within 14 days of the handing down of this judgment and to lodge submissions in reply within 14 days thereafter. In default of the lodging of such submissions, the order nisi shall stand as an order absolute without further direction.
Barristers Mr James Price, QC and Mr Jonathan Chang, instructed by Baker & McKenzie Solicitors, for the Plaintiff (Appellant in FACV 3/2018 and Respondent in FACV 2/2018)
Barristers Mr Kenneth K Y Lam and Ms Angela Mui, instructed by Lui & Law Solicitors, for the Defendant (Appellant in FACV 2/2018 and Respondent in FACV 3/2018)
Hong Kong Defamation Law 