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Choi Lee Lee v Mok Pui Yuk

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date23 November 2023
Neutral Citation[2023] HKDC 1633
Year2023
Subject MatterCivil Action
Judgement NumberDCCJ1652/2023
CourtDistrict Court (Hong Kong)
DCCJ1652/2023 CHOI LEE LEE v. MOK PUI YUK

DCCJ 1652/2023

[2023] HKDC 1633

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1652 OF 2023

________________________

BETWEEN

CHOI LEE LEE Plaintiff
and
MOK PUI YUK Defendant

________________________

Before: Deputy District Judge David Chan in Chambers (Open to Public)
Date of Hearing: 17 November 2023
Date of Decision: 23 November 2023

________________

DECISION

________________

INTRODUCTION AND PROCEDURAL BACKGROUND

1. This is the plaintiff’s application for judgment in default of defence (“DJ Application”) under O. 19, r. 7 of the Rules of the District Court, Cap. 336H (“RDC”).

2. A specially indorsed Writ of Summons was issued on 26 April 2023 (the Writ of Summons, and the Statement of Claim indorsed therein, are separately and respectively referred to as the “Writ” and the “SOC” in this Decision). Briefly, in the SOC, the plaintiff sued the defendant for defamation and malicious falsehood, based on the words uttered by the latter, which was recorded and sent to a WhatsApp group.

3. The Writ and the SOC were served on the defendant by registered post on 27 April 2023. Pursuant to O. 10, rr. 1(2) and (3) of the RDC, there would be deemed service of the Writ on the 7th day after it was being posted, i.e., on 3 May 2023. In accordance with O. 12, r. 5, the defendant had 14 days to file her acknowledgement of service of the Writ and to give notice of her intention to defend the claim, i.e., on or before 17 May 2023. The defendant has failed to do so.

4. Be that as it may, as the plaintiff’s claims include injunctive relief, the effect of O. 13, r. 6 kicked in, which required the plaintiff to proceed with the action as if the defendant had given her notice of intention to defend. Thus, the defendant would have another 28 days to file and serve her Defence to the SOC, i.e., on or before 14 June 2023. The defendant has also failed to do so.

5. Inaction on the part of the defendant led to the DJ Application being taken out by way of Summons filed on 20 June 2023. The Summons was served on the defendant by ordinary post on 21 June 2023.

6. The DJ Application first came before me on 21 September 2023 for call-over. At the hearing, the plaintiff was represented by counsel Ms Linda Cho (“Ms Cho”); the defendant, unrepresented, appeared in person.

7. During the hearing, the defendant spoke of her desire to negotiate a settlement with the plaintiff, as she did not wish to come to court for such a trivial matter. I therefore adjourned the DJ Application to 17 November 2023, with reminders to the defendant that: (1) she should use the adjournment period to engage in negotiation or mediation with the plaintiff; or (2) if no agreement could be reached, and that she intended to defend the case, she should take steps to materialise it, including but not limited to instructing a solicitor. I had also informed the defendant that, if neither of these steps was taken, I would consider the DJ Application without further delay.

8. The adjourned hearing on 17 November 2023 was again attended by Ms Cho and the defendant. Ms Cho reported that no settlement agreement could be reached between the parties. She elaborated that, a without prejudice letter from the plaintiff’s solicitors dated 25 September 2023 was sent to the defendant, via which the plaintiff set out some terms of settlement, in hope of initiating the negotiation process with the defendant. In return, the plaintiff’s solicitors received a holding letter dated 6 October 2023 from a law firm, under which the firm clarified that their instructions were limited to conducting settlement negotiations on behalf of the defendant with the plaintiff. The firm added that they would need to seek the defendant’s instructions on the terms of settlement mentioned in the letter from the plaintiff’s solicitors. Disappointingly the negotiation never really got off the ground, as nothing was heard from the defendant’s side since then.

9. Aside from the aborted negotiation, I see that the defendant has taken no step to defend the case.

10. Hence, as promised, I would consider the DJ Application without further ado.

11. Pausing here, at the adjourned hearing, I have told the defendant that this Decision would be written in English, as it is the language used in drafting the SOC. If necessary, translation of this Decision could be arranged for her.

LEGAL PRINCIPLES

12. I will first set out the legal principles applicable to this DJ Application.

13. In an application for default judgment under O. 19, r. 7, the court cannot receive any evidence; it must consider whether to give judgment according to the pleadings alone. The statement of claim must show a proper case for the order the applicant seeks to obtain, and the court shall give such judgment as the plaintiff appears entitled to on his statement of claim only, and only if the pleaded facts give rise to the relief sought[1].

14. The basis upon which a default judgment can be obtained, in circumstances where no defence is filed, is that of implied admission. The court will assume that the statement of claim has been impliedly admitted[2].

15. Default judgment procedure is applicable to libel action[3]. But in order to succeed in a claim for defamation, a claimant has to show that the three essential elements of the tort of defamation exist. First, there must be a defamatory statement. Second, such statement must have reference to the claimant. Third, it must be published[4].

16. For the first element, the test is that a defamatory statement must be to the claimant’s discredit; or tend to lower him in the estimation of others; or cause him to be shunned or avoided; or expose him to hatred, contempt or ridicule[5]. There are various types of statements that could constitute defamation. As per Gatley on Libel and Slander[6]:

“It is defamatory to impute to a person in any office any corrupt, dishonest or fraudulent conduct or other misconduct or inefficiency in it, or any unfitness or want of ability to discharge its duties, and this is so whether the office be public or private, or whether it be one of profit, honour or trust.”

17. As to the third element, it is a requirement that the publication must be made to at least one person other than the claimant. The matter must be published by the defendant[7].

18. With these in mind, I shall now turn to the plaintiff’s pleaded case.

PLAINTIFF’S CASE

The parties

19. The plaintiff is and was at all material times a resident and registered owner of a unit in Yan Tsui Court, No. 10 Yan Tsui Street, Chai Wan, Hong Kong (the “Estate”). She was also a Chairwoman of the management committee of the incorporated owners of the Estate from late 2014 to late 2022. It was said that she also held other private and/or public offices, and participated in rendering social welfare services[8]. For these reasons, she claimed to have an impeccable reputation in Hong Kong generally, and in the Estate specifically.

20. As to the defendant, she is and was a resident of Flat 805, 8th Floor, Yan Wah House (Block B), of the Estate (“Flat B805”). Using her mobile phone number (+852 9170 7837), she is and was registered as a member of a WhatsApp group under the name of “守護茵翠家園關注組” (the “WhatsApp Group”). It is said that there were more than 90 members in the WhatsApp Group (the “Recipients”).

The defamatory statements, publication and republication

21. On 27 January 2023, the defendant published to the WhatsApp Group audio messages of herself, at 7:45 pm and 8:07 pm, with each of the audio recordings lasting for 3 minutes 49 seconds and 1 minute 4 seconds respectively (the “Audio Recordings”). In these Audio Recordings, the defendant uttered the following words[9], which the plaintiff asserted to be false: -

(1) “But this woman is really outrageous. She is so greedy that she wants to take back what was once hers. It is normal, is it not? The ‘fat meat’ is big enough, so if someone stole it, she would steal it back!”

(2) “What I am most worried about is bid rigging and the construction projects being abandoned. Why would incorporated owners want to overthrow others and come back to rule? Everyone can see what is going on. The ‘fat meat’ was stolen, so you might as well tell the homeowners that they have to choose the company [you colluded with]. Not receiving benefits? Don’t treat us homeowners as fools!”

(3) “I just want to say that even if we overthrow the new committee members, we cannot let Choi Lee Lee come back to rule. She just wants to come back and rule again. She has been the Chairwoman of the incorporated owners for so many years and has been excessively spending so much of our money. When I started living here, people were told we had a surplus. After they took over, they kept spending money extravagantly by using the money for repairs for small homeowners. I am not only “sceptical” of her conduct, but in fact, I am sure that Choi Lee Lee must have colluded with a contractor. Invoices were issued and money was spent and she must have received many benefits [from the contractor]. Think for yourself. This woman has got a lot of serious problems and now she wants to make a comeback. Everyone should think about it.”

22. The statements quoted above are collectively referred to as the “Words” in this Decision.

23. Without deleting the Audio...

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