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Chan Chook Tim v Wong Kwok Hung

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date21 March 2003
Year2003
Judgement NumberHCA16078/1999
Subject MatterCivil Action
CourtHigh Court (Hong Kong)
HCA016078/1999 CHAN CHOOK TIM v. WONG KWOK HUNG

HCA016078/1999

HCA 16078/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 16078 OF 1999

____________

BETWEEN
CHAN CHOOK TIM Plaintiff
AND
WONG KWOK HUNG Defendant

____________

Coram: Hon. Kwan J in Court

Dates of Hearing: 28 and 29 November 2002

Date of Further Written Submissions: 3 December 2002

Date of Handing Down of Judgment: 21 March 2003

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J U D G M E N T

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The plaintiff's claim

1. This is an action in defamation. The plaintiff and the defendant had both stood for election to the Sha Tin District Board in 1994. The defendant won by a narrow margin. At the material time in July 1999, the defendant was a member of the Sha Tin Provisional District Board ("the Board"), which was established on 1 July 1997 and his term of office was to expire on 31 December 1999, when the Board was to be replaced by the Sha Tin District Council ("the District Council"), after the first ordinary elections of the District Councils were held towards the end of that year. The defendant stood for election to the District Council but the plaintiff did not stand in the 1999 election. The plaintiff alleged that one of the reasons why he did not run for office was because of the alleged defamatory statement made by the defendant in the meeting of the Board held on 30 July 1999.

2. The Board meeting on 30 July 1999 was recorded on tape and a tape recording was supplied by the defendant's solicitors to the plaintiff's solicitors under cover of a letter dated 25 October 1999, so there ought to be no dispute of what was actually said by the defendant on that occasion. Pleadings are of great importance in an action in defamation, as the court should not stray outside what has been pleaded as the plaintiff's case and what has been pleaded in defence of the claim. Regrettably, the pleadings filed by both parties here leave much to be desired. It was left to the court to clarify with their counsel at the trial what really is in issue arising from the pleadings and what would not be in contention despite the pleadings.

3. According to the tape recording, and it was confirmed by counsel at the trial there is no dispute about this, the defendant had said the following words in Cantonese at the Board meeting: "陳作點先生舊年有劑嘢，已經守緊行為", pleaded in the Amended Statement of Claim as "the Second Defamatory Statement". As to the literal translation of these words in English, the plaintiff and the defendant have provided different translations, neither of which is a certified translation. I decided to use the literal translation as provided by the court interpreter and this is as follows: "Mr Chan Chook Tim last year had a matter, he had already been observing codes of behaviour."

4. The Board meeting was attended by members of the Board, the secretary to the Board, representatives of various government departments and interested bodies, 15 members of the public and 4 persons from the media. As was the practice with every Board meeting, the proceedings were recorded on tape and after the meeting, the secretary of the Board prepared draft minutes, which were circulated to all members of the Board and all representatives of government departments who were present. The draft minutes in Chinese were thus circulated on 13 September 1999 and the recipients were requested to send their comments and amendments within 10 days thereof, failing which the minutes would be deemed to have been passed.

5. In preparing the minutes in Chinese, the secretary had changed the colloquial style of the words spoken into a more literary style. Thus, the words complained of being the subject matter of this action appeared somewhat differently in paragraph 49 of the draft minutes as follows: "陳作點先生因去年犯事，現在仍須守行為". In the English version of the minutes prepared by the secretary, the relevant statement read as follows: "He further disclosed that Mr Chan Chok-tim was convicted last year and was still bound over to be of good behaviour". As confirmed by Mr Stephen Yam, who appeared for the plaintiff at the trial, notwithstanding the allegations in the plaintiff's pleading, it is now accepted by the plaintiff that the defendant did not utter the words as stated in the draft minutes. Counsel has also confirmed that no relief is now claimed by the plaintiff in respect of these words, referred to in the Amended Statement of Claim as "the First Defamatory Statement", whether in respect of the publication of these alleged words by the defendant at the meeting or in respect of the publication of these words in the draft minutes circulated by the secretary.

6. The defendant received a copy of the draft minutes in Chinese but did not pay much attention to it and did not notice the way in which the relevant spoken words had been altered in a literary style in the minutes.

7. On or about 17 September 1999, the plaintiff learned about what the defendant had said as stated in the draft minutes in Chinese and he obtained a copy of the draft. He instructed solicitors who sent a letter to the defendant dated 28 September 1999 alleging that the defendant had spoken the words as stated in the draft minutes "with apparent motive to destroy [the defendant's] political rivals, [the plaintiff] and his allies". The plaintiff's solicitors demanded the defendant to take the following action within the next 5 days: to withdraw the statement complained of from the minutes of the Board meeting; to procure the amended minutes to be circulated to all the recipients of the draft minutes with a letter of the defendant stating that his statement was malicious and false; to stop immediately to defame the plaintiff by making or causing to publish the statement complained of; and to publish a full page apology to the plaintiff in four newspapers as named by the plaintiff.

8. As the defendant did not reply to this letter, the plaintiff issued a writ against the defendant on 11 October 1999 with a Statement of Claim, in which it was alleged that the defendant had spoken and published the words as stated in the draft minutes circulated in September 1999. On the same day, the plaintiff issued an inter partes summons for an interlocutory injunction seeking an order that the defendant "do forthwith amend and delete and/or cause to amend and delete" the sentence complained of in the draft minutes and that the defendant be restrained until after trial of this action or further order from repeating the statement complained of or any similar statement.

9. The application came before Yeung J (as he then was) on 22 October 1999. No interlocutory injunction was granted in view of two undertakings given by the defendant: to forthwith procure the Board to "withdraw" the statement complained of as stated in the minutes circulated, and "not to make comment of the plaintiff's character which is untrue".

10. After the hearing, the defendant wrote to the chairman of the Board on 26 October 1999 stating that the secretary had incorrectly reported in the minutes what he had said regarding the plaintiff at the Board meeting and that the plaintiff had brought an action for defamation against him without listening to the tape recording. The defendant informed the chairman of his undertaking to the court to procure the Board to "rectify" the relevant words in the minutes and to "withdraw" the relevant words criticising the plaintiff's character. The defendant requested the chairman to ask the secretary to notify those who had attended the meeting of the words to be rectified.

11. The secretary wrote to the defendant on 8 December 1999 referring to his letter to the chairman dated 26 October 1999 to "amend" the minutes of the Board meeting and requesting the defendant to indicate specifically his proposal for amendment in the reply slip enclosed, to be returned to the secretariat before 13 December 1999 for the consideration of the Board members. The reply slip contained 3 alternative proposals for amendment: (1) to delete the words "他並透露陳作點先生因去年犯事，現在仍須守行為" ("He further disclosed that Mr Chan Chok-tim was convicted last year and was still bound over to be of good behaviour"); (2) to delete the words as in (1) and substitute them with "他並透露陳作點先生「舊年有劑嘢，已經守緊行為」" ("He further disclosed that Mr Chan Chook Tim 'last year had a matter, he had already been observing codes of behaviour'"); or (3) any other proposal for amendment as specified by the defendant.

12. The defendant replied to the secretary on 13 December 1999 stating inter alia that he had written to the chairman on 26 October 1999 pursuant to his undertaking to the court.

13. On 20 December 1999, the defendant returned the reply slip to the secretary stating that his proposal to amend the minutes was as per the 2nd alternative.

14. The secretary then wrote to all Board members on 21 December 1999 referring to the defendant's letter to the chairman to amend the minutes of the meeting on 30 July 1999, the action in defamation brought by the plaintiff, and the defendant's undertaking to the court to "rectify" the relevant words. The secretary enclosed the defendant's proposal to amend the minutes (as per the 2nd alternative) and requested Board members to return the enclosed reply slip by 30 December 1999, to indicate whether they would approve or oppose the proposed amendment.

15. On 7 January 2000, the secretary wrote to all Board members informing them that by 30 December 1999, 17 members had approved the proposed amendment and 15 members had opposed the same and the resolution for amending the minutes was passed by a majority. On the same day, the secretary notified the representatives of government departments to the Board of the amendment of the minutes.

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