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Ng Woon King v Cheng Kam Wah And Another

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date08 May 2018
Neutral Citation[2018] HKDC 491
Judgement NumberDCCJ2235/2017
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ2235/2017 NG WOON KING v. CHENG KAM WAH AND ANOTHER

DCCJ 2235/2017

[2018] HKDC 491

IN THE DSTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2235 OF 2017

________________

BETWEEN
NG WOON KING Plaintiff
and
CHENG KAM WAH 1st Defendant
CHENG WAI CHUN 2nd Defendant

________________

Coram:His Honour Judge Harold Leong in Chambers (Open to Public)

Date of Hearing: 3 May 2018

Date of Decision: 8 May 2018

___________________

DECISION

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1. This is a defamation case and the plaintiff is applying to strike out various paragraphs of the Re-Amended Defence.

Background

2. This case concerned two letters sent by the 1st and 2nd defendants to the tenant, Shun Fung Trading Co. (“Shun Fung”) of a property which is co-owned by the plaintiff, a Mr. Chan King Chun (“Mr. Chan”) and the two defendants as tenants-in-common.

3. The 1st and 2nd defendants are the son and daughter of the late Cheng Man Yuk (“Mr. Cheng”). Mr. Cheng had been one of the registered owners of the property (as tenants-in-common with the 1st and 2nd defendants). On 26 May 2014, Mr. Cheng had transferred his interest to the plaintiff and Mr. Chan by a Deed of Gift.

4. Despite this, Mr. Cheng appeared to have entered into a tenancy agreement with Shun Fung about 1 week later on 3 June 2014.

5. On the tenancy agreement, three signatures (seeming to be the names of Mr. Cheng, the 1st defendant and 2nd defendant) appeared on the areas to be signed by the landlord. It was not in dispute that all 3 signatures were signed by Mr. Cheng himself.

6. Mr. Cheng passed away on 4 November 2016.

7. It was the defendants’ case that they were not aware of the tenancy agreement nor received their share of deposit or rents. They only discovered the tenancy agreement in around October 2016.

8. On 20 March 2017, the 1st and 2nd defendants jointly wrote a letter in Chinese titled “租約糾紛通知函”. The main part of the notice stated “…現因我兩者在本物業租約簽訂時未有被預先咨詢本物業租約合同內容，認為現有租約存在不合法問題，將共同入稟法院向其他本物業權持有人追討觸犯或侵犯簽訂租約權問題…特此通告貴 租客…在收到本通知函應在死約期滿日後遷出本物業…”

9. On 13 April 2017, the 1st and 2nd defendants jointly wrote a second letter in Chinese titled “租約糾紛通知函 (續一)”. The relevant content stated “根據貴寶 號…內涵，得知貴 寶號有意願延續現有租約，但因本物業租約合同合法性問題, 鄭錦華先生及鄭慧珍女士(簡稱”我兩者”)不認同現有租約是可以在法律上有效地延續，因此我兩者以對本物業的其他業權擁有人提出解決方案…我兩者將會在五月期間共同入稟法院向其他本物業業權持有人追討觸犯或侵犯簽訂租約權等問題及終止現有租約…”

10. In the Amended Statement of Claim, the plaintiff specifically extracted :-

i) From the first letter the following wordings:

“現有租約存在不合法問題，將共同入稟法院向其他本物業權持有人追討觸犯或侵犯簽訂租約權問題”; and

ii) From the second letter the following wordings:

“但因本物業租約合同合法性問題, 鄭錦華先生及鄭慧珍女士(簡稱”我兩者”)不認同現有租約是可以在法律上有效地延續…我兩者將會在五月期間共同入稟法院向其他本物業業權持有人追討觸犯或侵犯簽訂租約權等問題及終止現有租約”

and claimed that such wordings, “in its natural and ordinary and/or inferential meanings…meant and were understood to mean that:- The plaintiff (and Chan) had acted in an illegal, unlawful and/or illegitimate manner by infringing the right of D1 and D2 to enter into the TA.”

11. In the Re-Amended Defence, the 1st and 2nd Defendants, pleaded many lines of defence against defamation. The current application sought to strike out some of the pleadings which the plaintiff claimed should be struck out on the ground that (i) they disclose no reasonable defence, (ii) they are frivolous or vexatious, and / or (iii) they are otherwise an abuse of process of the Court.

Legal principle

12. The legal principle is trite and not in dispute: “It is only in plain and obvious cases that the courts should exercise its summary powers to strike out…any pleadings under this rule…There should be no trial upon affidavit. Disputed facts were to be taken in favour of the party sought to be struck out. Nor should the Court decide difficult points of law in striking out proceedings. The claim (defence in this case) must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbably, for the claim (defence in this case) to succeed before the Court will strike it out. If the court does not think that the matter to be clear beyond doubt or if it fails to be satisfied that there is no reasonable cause of action or that the proceedings are frivolous or vexatious, then, there should be no striking out.” (Hong Kong Civil Procedure 2018 paragraph 18/19/4 p. 476)

13. The threshold for striking out pleadings is indeed high, but this does not mean that a party can indiscriminately throw in pleadings without any forethought and judgment on whether such pleadings are, even on its own case, “obviously unsustainable”, “unarguably bad” and “impossible to succeed”.

Absolute Privilege

14. The defendants raised the defence of “absolute privilege” in paragraphs 12 and 13, pleading on one hand that these were “pre-action letters” and, on the other, that they were “protected 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 here.

16. It is established law that a letter before action is not covered by absolute legal privilege: “it is not enough that proceedings are contemplated: they must be actually on foot or the matter in issue must be an act which initiates them.” (Gatley on Libel and Slander 12th ed. P. 471) A letter before action in the context of a court proceeding is obviously not “an act which initiates” that court proceeding.

17. Ms. Kitty Tsang, counsel for the defendants, quoted Lilley v Roney (1892) 61 LJQB 727 but that case concerns a letter of complaint against a solicitor to the Registrar of the Law Society. This was held to be essentially a step in a judicial proceeding in a tribunal action, not a court proceeding.

18. The legal test is whether the letter sent was a “recognised step in initiating the action”. Ms. Tsang tried to argue that this was an area of evolving law. I would think that with precedents dating back to the time of Queen Victoria rather suggested that the legal principle must be well settled!

19. As such, by pleading that these were “letters before action” and in the very same paragraphs claiming for absolute privilege for them was in total contradiction to trite legal principles and “obviously unsustainable”. Paragraphs 12 and 13 of the Re-Amended Defence should therefore be struck out.

No Publication

20. Paragraph 17 of the Re-Amended Defence was confusing because on one hand, there was an admission...

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