Hong Kong Defamation Plaintiff Allowed To Sue For Misuse Of Private Information Too (23 June 2022)
Yip Wai Tak Vivian (葉慧德) (P) v Lee Ka Wo Esmond (李家和) (D1) Hong Kong Football Club (香港足球會) (D2) Cheung Yuk Fung Vincent (張旭峯) (D3) & Hong Kong Lawn Bowls Association (香港草地滾球總會) (D4)
[2022] HKDC 621 – Decision of Deputy District Judge Joseph Vaughan – DCCJ 4923 of 2019 – 23 June 2022
“… I am of the view that the complaint by the 3rd and 4th 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… I would therefore allow the plaintiff’s application by summons dated 28 April 2022 for the filing of the proposed amended statement of claim… 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 3rd and 4th defendants’ opposition to the summons be paid by the 3rd and 4th 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.
If there is no application to vary the costs order nisi within 14 days, it shall become absolute. 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 1st and 2nd defendants
Mr Abel Lam, instructed by Herbert Tsoi & Partners, for the 3rd and 4th defendants
Defamation | Libel | Malicious Falsehood | Breach of Confidence | Misuse of Private Information | Case Management Power | Allowing Amendment
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 