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Yiu Shing Yin v Kwok Yik Ho And Another

Judgment Cited authorities 10 Cited in Precedent Map Related
Vincent
Judgment Date09 May 2018
Neutral Citation[2018] HKDC 514
Year2018
Judgement NumberDCCJ4437/2016
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ4437/2016 YIU SHING YIN v. KWOK YIK HO AND ANOTHER DCCJ4437/2016 Yiu Shing Yin v. KWOK YIK HO AND ANOTHER

DCCJ 4437 / 2016

[2018] HKDC 514

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4437 OF 2016

_______

BETWEEN
Yiu Shing Yin (姚盛賢) Plaintiff
and
Kwok Yik Ho (郭奕河) 1st Defendant
Cheng Siu Yung (鄭少容) 2nd Defendant

_______

Before: Deputy District Judge Kenneth K Y Lam in Court

Date of Hearing: 26, 27 & 28 March 2018

Date of Judgment: 28 March 2018

Date of Handing Down Reasons for Judgment: 9 May 2018

_______________________________

REASONS FOR JUDGMENT

_______________________________


Introduction

1. This is a libel action arising out of some Chinese words (“the Words”) jointly published by the 1st Defendant (“Mr Kwok”) and the 2nd Defendant (“Mrs Kwok”) on a glass window at Shop 80 (“the Shop”), 1st Floor, Fu Tor Loy Sun Chuen Stage 2 (富多來新邨第二期) (“the Estate”), Tai Kok Tsui, Kowloon, Hong Kong.

2. The publication of the Words and the fact that the Words were prima facie defamatory of the Plaintiff (“Mr Yiu”) had been admitted by the Defendants (“Mr and Mrs Kwok”).

3. The main issues in dispute were: -

(1) Whether the Words were substantially true (“Issue 1”);

(2) Whether the publication was on an occasion of qualified privilege and not too wide (“Issue 2”); and

(3) Whether the publication was with the consent of Mr Yiu (“Issue 3”).

(Collectively, “the Issues in Dispute”)

4. The trial took 3 days. The only witnesses were the parties.

5. At the end of the last day, I resolved the Issues in Dispute in favour of Mr and Mrs Kwok, dismissed the action, ordered Mr Yiu to pay all costs of the action, including all costs reserved, to Mr and Mrs Kwok, to be taxed if not agreed, with Certificate for Counsel (“the Judgment”), and indicated I would be handing down my full reasons for the Judgment in writing, which I hereby do.

Factual Background

6. The Estate had 682 units (residential plus commercial). It had an incorporated owners (“the IO”) but no management company.

7. Mr Yiu was an owner in the Estate and thus a member of the IO. He was once employed by the IO direct, on a monthly salary of HKD 12,000, for the position of “clerk” (文書). The role of Mr Yiu was akin to that of a management company. He did not have any other job.

8. Mr and Mrs Kwok were also owners in the Estate. They were thus members of the IO as well. They owned the Shop, from which they operated an aluminium window business called “Ho Wah Aluminium Co (豪華鋁窗公司)” (“the Business”). They had been married to each other for 30 years.

The Evidence of Mr Yiu

9. Mr Yiu gave evidence first. I observed his demeanour, looked at the contemporaneous documents, and considered the probabilities of his evidence. I found Mr Yiu to be an evasive dishonest liar whose evidence, in so far as it was self-serving, was wholly unreliable, plainly ludicrous in certain parts, and rejected by me as false.

10. The following are some examples of how “plainly ludicrous” certain parts of Mr Yiu’s evidence really were: -

(1) Mr Yiu alleged under cross-examination by Mr Damian Wong, Counsel for Mr and Mrs Kwok, that he intended to attend the IO’s Annual General Meeting on 8th May 2015 (“the AGM”) in person, but also authorized and paid 2 persons to vote as his proxies at the AGM, as he needed “assistants”. That made no sense whatsoever since each unit in the Estate should only have one vote (with the weight of that vote being determined by the unit’s undivided shares in the Estate) and voting would just be a matter of putting a tick on a piece of paper with a pen and then inserting that piece of paper into a ballot box. It would not take 3 persons to do so.

(2) Mr Yiu further alleged the words “食屎、呃錢、屎忽鬼” [English translation: “Eats Shit, Cheating People’s Money, Arsehole”] written on a promotional sign of the Business [B/17] could be part of the original format (格式) of that sign, as opposed to the result of criminal acts of vandalism. In my judgment, it was highly unlikely that an aluminium window business would choose to include such derogatory, offensive and insulting words as part of the format of its own promotional sign.

(3) Mr Yiu suggested to Mr Damian Wong, Counsel for Mr and Mrs Kwok, that he should ask Mrs Kwok to speak in Punti, as Mrs Kwok’s Punti was incomprehensible to him and for that reason he never managed to understand what Mrs Kwok had said to him. However, when Mrs Kwok gave oral evidence, it was crystal clear she spoke perfect Punti. Mrs Kwok could and did express herself in Punti perfectly well, directly contrary to what Mr Yiu alleged.

11. Mr Enzo Chow, Counsel for Mr Yiu, sensibly conceded in his oral closing that Mr Yiu’s evidence on the proxy forms, as summarized in paragraph 10(1) above, was “a bit ridiculous” and “a bit unbelievable”.

12. Mr Yiu alleged the Words were false. The Words were: -

“自2015年6月19日，富多來新邨第二期業主立案法團，由姚盛賢先生當主席後，(他是利用假的授權書當選的，當時前管委會主席龔文輝先生已報警)… ”

“到2015年4月至5月期間，姚盛賢到處揚言，他一定要當富多來立案法團主席(第十一屆)當時因為我們不支持他，他就叫夜班的管理員破壞本舖的招牌及棄掉了超過五十多個。(到姚生當了法團主席後，他繼續針對性的破壞本舖的招牌)…”

13. Mr Yiu denied he consented to the Words being published by Mr and Mrs Kwok.

The Evidence of Mrs Kwok

14. Mrs Kwok gave evidence next. I observed her demeanour, looked at the contemporaneous documents and considered the probabilities of her evidence. I found Mrs Kwok to be an honest and reliable witness who gave her evidence in a frank, candid and natural manner to the best of her ability. She struck me as a simple, sincere and humble lady. I accepted her evidence as entirely true.

15. Mrs Kwok said, and I accepted (more on that below), that the Words were substantially true in that (1) some of the proxy forms used in the election of Mr Yiu as Chairman of the IO were false or forged; and (2) it was indeed Mr Yiu who instructed a person nick-named Fat Ball (肥波) to vandalize the signs of the Business. Mrs Kwok also said, and I accepted (more on that below), that she and Mr Kwok published the Words with Mr Yiu’s oral consent.

The Evidence of Mr Kwok

16. Mr Kwok gave evidence last. I also observed his demeanour, looked at the contemporaneous documents and considered the probabilities of his evidence. I found Mr Kwok to be an honest and reliable witness who gave his evidence in a frank, candid and natural manner to the best of his ability, just like Mrs Kwok. He struck me as a simple, sincere and humble man. I accepted his evidence as entirely true.

17. The evidence of Mr Kwok was similar to that of Mrs Kwok, which was not surprising as in my judgment they were both telling the truth. I did ask Mr Kwok additional clarification questions, which he answered. They related to Issue 3 (i.e. the question of consent). I shall deal with those below, when I deal with the Issues in Dispute one by one.

Issue 1 – Justification

18. Justification (i.e. truth) is a complete defence to an allegation of defamation. In my judgment, justification had been established by Mr and Mrs Kwok. In this part of the Reasons for Judgment, I shall explain my reasons for so holding.

19. I must start by determining what the Words meant.

20. In paragraphs 4 & 7 of Mr Yiu’s Statement of Claim filed on 5th September 2016 (“the SoC”), Mr Yiu alleged the Words meant: -

(1) Mr Yiu was unlawfully elected; elected by means of producing/using forged document(s); suspected to be involved in a criminal offence of forgery; and dishonest (“1st Meaning”); and

(2) Mr Yiu had criminally damaged the sign board(s) of the Shop and of other shops and/or had caused his agent to do so; and was suspected to be involved in a criminal offence of criminal damage (“2nd Meaning”).

(Collectively, “the Pleaded Meanings”)

21. Mr and Mrs Kwok originally denied the Pleaded Meanings in paragraphs 18 & 22 of their Defence filed on 16th November 2016 (“the Defence”), but in paragraph 2 of their Counsel’s written opening the denial was effectively abandoned. Mr and Mrs Kwok never pleaded any positive or alternative case on meanings. In the absence of an effective challenge, and having read the Words, I was satisfied the Words conveyed the Pleaded Meanings to hypothetical reasonable readers.

22. Starting with the 1st Meaning, I was satisfied on the evidence that Mr Yiu was indeed dishonest, unlawfully elected by means of forged proxies, and suspected of being involved in the crime of forgery.

23. The proxy forms [B/67 to 81] spoke for themselves. As I had briefly mentioned in paragraph 10(1) above, Mr Yiu accepted that 2 of the proxy forms (importantly, for the exact same unit of the Estate) produced at the trial [B/75 & 76] were signed and procured by him. The first of these [B/75] was fine, as it was genuine in the sense that it purported to be signed by Mr Yiu and was in fact signed by Mr Yiu. The second of these [B/76], however, was plainly a dishonestly forged document, as it purported to be signed by Mr Yiu’s mother (the form being in her name) but was in fact signed by Mr Yiu. Of course, under cross-examination, Mr Yiu alleged his signature on his mother’s proxy form was authorized by his mother, but his mother never gave evidence. I drew the inference that the evidence of Mr Yiu’s mother would not have helped Mr Yiu at all, and I rejected Mr Yiu’s explanation as false. I further rejected Mr Yiu’s allegation that he created these forms for the purpose of getting “assistants” to help him at the AGM. This allegation of Mr Yiu was plainly nonsensical, for the reasons set out in paragraph 10(1)...

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