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Chang Wa Shan v Esther Chan Pui Kwan And Another

Judgment Cited authorities 29 Cited in 2 Precedent Map Related
Vincent
Judgment Date08 September 2017
Citation[2017] 5 HKLRD 57
Judgement NumberCACV240/2015
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV240/2015 CHANG WA SHAN v. ESTHER CHAN PUI KWAN AND ANOTHER

CACV 240/20 15

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 240 OF 2015

(ON APPEAL FROM HCA NO 1855 OF 2010)

________________________

BETWEEN

CHANG WA SHAN Plaintiff
and
ESTHER CHAN PUI KWAN（陳佩君）
also known as CHAN PUI CHUN（陳佩珍）		 Defendant

________________________

Before: Hon Yuen JA, Kwan JA and Macrae JA in Court
Dates of Hearing: 5 and 6 April 2017
Dates of Further Written Submissions: 12 and 13 April 2017
Date of Judgment: 8 September 2017

________________________

J U D G M E N T

________________________

Hon Yuen JA:

1. I have had the benefit of reading the judgment of Kwan JA in draft. I have written my judgment on the assumption that her ladyship’s judgment (which starts at paragraph 52) would be read first as it sets out the facts and issues in detail. My views on the issues appear below.

No absolute privilege

2. For the reasons set out in Kwan JA’s judgment at paras. 86-126, I agree that the defendant’s communication of the subject statement to Mr Mill and Mr Midgley was not made on an occasion of absolute privilege. Consequently it falls to be decided whether the plaintiff has established either the cause of action of slander, or that of malicious falsehood, or both.

Causes of action

3. In Section I, I shall consider the claim based on slander and in Section II, the claim based on malicious falsehood.

Section I

Defamatory meaning?

4. With respect, I disagree with Kwan JA and Macrae JA on the issue whether the defendant’s statement bore a defamatory meaning.

Relevant time

5.1 Before I discuss the issue, it is not disputed that in determining whether a statement is defamatory or not, the relevant time is the time when it was communicated.

5.2 In the present case that was the morning of 21 May 2009 (before the start of Day 9 of the probate trial before Lam J) prior to the resumption of cross-examination of Gilbert Leung.

Factual context

6. It is also important to bear in mind that in deciding whether a statement is defamatory or not, the court should not consider it in a vacuum. It is necessary to take into account the context and circumstances of the publication[1].

7.1 The subject statement was made in the context of preparation for court proceedings when the credibility of Gilbert Leung, an important witness, was being tested.

7.2 The day before, he had been cross-examined by Mr Mill about the piece of land which a Chinachem company had sold to his company shortly before he made his witness statement in the Probate Action. A question was based on a report in the media which said that the land was sold for $1.01m when, even on a conservative estimate, it was valued then at $10m.

7.3 In cross-examination, Gilbert Leung denied that estimate of value. He was then asked if he had an estimate of the profitability of the project. He answered that he had not attempted to estimate the value of the land in question[2].

7.4 However the Document[3] which he had prepared[4] showed (after referring to Town Planning zoning which permitted development of the land as a cinerarium) under the heading “Property Valuation” that there would be gross revenues after development of some $360m at a construction cost of approximately $10 million.

7.5 On its face therefore the Document appeared to contradict the evidence that Gilbert Leung had just given.

7.6 The next morning Mr Mill and Mr Midgley were told by the defendant that the provider of the Document was content to let it be used in court to cross-examine Gilbert Leung[5]. Mr Mill anticipated[6] that Lam J would ask for the name of the provider of the Document for its introduction into evidence.

7.7 It was in the context above that the subject statement was made to Mr Mill and Mr Midgley in preparation for the introduction of the Document in court to expose what appeared to be false evidence from a witness given the day before.

8. I shall now come to the plaintiff’s case on slander.

The plaintiff’s case at trial

9.1 The plaintiff alleged that the statement bore a defamatory meaning, whether (1) on the natural and ordinary meaning of the words, or (2) by way of “true” or “legal” innuendo. (As “false” or “popular” innuendo does not give rise to an independent cause of action[7], I shall refer hereafter only to the term “innuendo” without the adjective “true” or “legal”).

Recorder Pow’s decision on this issue

9.2 The learned Recorder held that the statement did not bear a defamatory meaning, whether (1) on the natural and ordinary meaning of the words, or (2) by way of innuendo. In this appeal the plaintiff has only challenged the Recorder’s rejection of his case of innuendo.

Conjunction with extrinsic facts necessary to create an innuendo meaning

10. It is clear law that an innuendo meaning can only be established if the plaintiff pleads and proves that an “extended”[8] (or “special” or “secondary”) meaning, which is defamatory, arises by reason of the publishees’ knowledge of certain extrinsic facts[9]. Put another way, the “extended” meaning would be created only by a conjunction of the words spoken with the extrinsic facts pleaded and proved to be known to the publishees[10], although if the facts had sufficient notoriety, an inference could be drawn that at least one of the publishees would have such knowledge[11].

Deciding whether the meaning is defamatory

11. When the court considers whether a defamatory meaning should or should not be attributed to the statement, evidence of the individual publishees’ subjective understanding[12] may be admissible but is not conclusive. “ ... [T]he claimant, in order to succeed, must satisfy the court that the [defamatory] meaning ... was one which reasonable people in their position would have derived from it”[13].

12. It is therefore crucial to examine

(1) what the plaintiff claims to be the defamatory meaning by innuendo,

(2) what were the extrinsic facts pleaded and proved to be known by the publishees (or were sufficiently notorious for their knowledge to be inferred), and

(3) whether those facts, combined with the words spoken, would have created that defamatory meaning by innuendo in the understanding of a reasonable person in the position of the publishees.

Alleged Innuendo Meanings

13. In his statement of claim, the plaintiff has alleged 3 innuendo meanings which may be summarised as follows:

(a) he had betrayed a friend and business associate viz. Gilbert Leung[14] (“alleged Innuendo Meaning (a)”);

(b) he had “secretly and covertly sought to assist Tony Chan and his unmeritorious challenge to Nina Kung’s will in order to try to get his [Tony Chan’s] hands on her fortune”[15] (“alleged Innuendo Meaning (b)”);

(c) he did either of or both the acts above“in order to obtain a personal advantage, possibly money from Tony Chan”[16] (“alleged Innuendo Meaning (c)”).

Separate meanings alleged

14. The pleading was of 3 alleged Innuendo Meanings, not one meaning consisting of 3 components. Although Mr Price QC leading counsel on this appeal[17] has apparently includedalleged Innuendo Meaning (c) when making submissions on alleged Innuendo Meaning (b)[18], it is clear that alleged Innuendo Meaning (b) was a stand-alone allegation. That is to be contrasted with alleged Innuendo Meaning (c) which is clearly predicated upon the plaintiff having succeeded in establishing either alleged Innuendo Meaning (a) or (b).

Extrinsic facts

15.1 Five extrinsic facts were pleaded. The Statement of Claim did not comply satisfactorily with Order 82 rule 3(1) RHC which requires facts and matters to be particularised when an innuendo meaning is alleged.

“Where in an action for libel or slander the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he must give particulars of the facts and matters on which he relies in support of such sense”.

Obviously where the plaintiff alleges that there were 3 separate innuendo meanings each of which was defamatory, he should identify specifically which extrinsic fact or matter was intended to support each of the 3 innuendo meanings alleged.

15.2 In the present case, the plaintiff failed to do so. That was unsatisfactory as it was left to the reader to discern from the extrinsic facts pleaded which facts were being alleged to support which innuendo meaning.

15.3 The law of defamation is technical and complex, and a clearly and methodically pleaded case is essential. The RASOC here contained different causes of action (slander and malicious falsehood), and for slander, there were claims based on the natural and ordinary meaning (paragraph 8), and further or alternatively, on innuendo meanings (paragraph 8A). The RASOC is the blueprint for the case mounted by the plaintiff for each separate claim. This is important for the following reason. When evidence of a fact is adduced at trial which is relevant to one claim (eg slander based on the natural and ordinary meaning), and that fact had not been pleaded to support another claim (eg slander based on an innuendo meaning), it would be wrong to argue that the second claim can be established as the evidence of that fact had in any event been adduced at trial, because that was not a fact pleaded to support the second claim. Permitting such an argument would lead to unfairness to the opponent and confusion of the tribunal. I will come back to this later when I deal with Mr Price’s argument that Mr Mill and Mr Midgley were aware of the informant’s previous demands for money for the Document. First, I shall set out the 3 alleged Innuendo Meanings in order, followed by a discussion of the 5 extrinsic...

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2 cases
  • Ng Woon King v Cheng Kam Wah And Another
    • Hong Kong
    • District Court (Hong Kong)
    • 8 May 2018
    ...by absolute privilege”. 15. The legal principle regarding absolute privilege is trite (Chang Wa Shan v Esther Chan Pui Kwan and Anor [2017] 5 HKLRD 57) and I need not repeat it 16. It is established law that a letter before action is not covered by absolute legal privilege: “it is not enoug......
  • Yiu Shing Yin v Kwok Yik Ho And Another
    • Hong Kong
    • District Court (Hong Kong)
    • 9 May 2018
    ...pay costs to Mr and Mrs Kwok accordingly. 116. As Yuen JA of the Court of Appeal aptly observed in Chang Wa Shan v Esther Chan Pui Kwan [2017] 5 HKLRD 57 at 65 (paragraph 15.3), the law of defamation is “technical and complex”. It was reasonable, proper and plainly necessary for Mr and Mrs ......

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