Defence of Consent in Hong Kong Defamation Actions

Deputy District Judge Kenneth KY Lam - Yiu Shing Yin (姚盛賢) v Kwok Yik Ho (郭奕河) & Cheng Siu Yung (鄭少容) - [2018] HKDC 514 (DCCJ 4437 / 2016) - Defence of Consent Established

https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=115106&currpage=T

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”)

...

Issue 3 – Consent

94.  All parties agreed consent could be a complete defence to any claim of defamation.  That was clear, by way of example, from what DHCJ Q Au-Yeung (as Au-Yeung J then was) had said in Poon Chi Hung William v Yuen Wai Chung (HCA 387/2011, 27th November 2012, paragraph 77), from what the learned editors of Gatley had said in paragraph 19.10 of their work, and from what Dr Matthew Collins QC had said in paragraph 18.01 of Collins on Defamation.

95.  For the purpose of “the defence of consent” within the law of defamation, the consent can be explicit, implicit, implied or inferred by the conduct of the parties.

96.  The English case of Carrie v Tolkien [2009] EMLR 9 neatly illustrated how the defence worked.  There, the claimant operated a website with the address www.tolkienexaminer.blog.co.uk. It was a “blog” with a comments function.  The defendant was said to have published a comment defamatory of the claimant on that blog.  The claimant became aware of that comment but did not take any step to remove it for the next 22 months.  Although there was never any explicit communication of consent between the parties, Eady J aptly observed the claimant’s suggestion that he suffered substantial “upset and distress” was plainly inconsistent with the objective fact of inaction on the part of the claimant, inferred that the claimant must have consented to and acquiesced in the publication of the comment, ruled that no properly directed jury would come to a different conclusion (see his paragraph 16), and summarily struck out the claimant’s case.

97.  The defence of consent in our present case was even stronger than the one in Carrie v Tolkien [2009] EMLR 9.

98.  The evidence was clear.  Mr Yiu explicitly communicated his consent to the publication of the Words at the Shop to Mr and Mrs Kwok in an oral conversation with Mrs Kwok.  When Mr Yiu discovered the publication of the Words by Mr and Mrs Kwok, he took no step to ask for their removal until 7 months later, whereupon the Words were promptly removed.  The defence of consent was available to Mr and Mrs Kwok, and Mr Yiu’s claim was dismissed on this alternative ground also.

99.  Mr Chow’s complaint in relation to this was two-fold.  Firstly, Mr Chow said that there was no consent.  Secondly, Mr Chow said even if there was consent, the consent should be construed narrowly and what Mr and Mrs Kwok did was beyond the consent given.  I rejected both limbs of Mr Chow’s complaint.  In order to explain my reasons for so doing, it is necessary for me to set out the relevant evidence, which I hereby do.

100.  The evidence of Mr and Mrs Kwok on the oral consent went as follows [A/105, para 10] & [A/178, para 10]: -

“約在2015年12月至2016年1月上旬，原告人將上述小額錢債案的判決書張貼於屋苑內的富麗樓的電梯大堂通告板，後來被街坊發現通知我們，於是我們去找原告人理論，我們指出他並沒有貼出欠交管理費的全部事實，如貼判決書亦應該貼出我們的抗辯書，原告人指我們喜歡張貼便貼回自己的店舖內，不要貼公眾地方。由於原告人知道我們小額錢債案的答辯書的內容，在得到他口頭同意下，我們就把抗辯書貼在80號舖的櫥窗上，讓業主街坊清楚我們罷交管理費的原因是由於原告人領導的法團管理或監察不力，業主街坊是有知情權。”

101.  Mr Chow’s first complaint about the passage above was that Mr and Mrs Kwok adopted the exact same passage as their evidence – even the punctuation was identical.  This, suggested Mr Chow, meant I should not rely on it.  I saw no merits in this argument.  Each case must be decided on its own facts.  In the case of Mr and Mrs Kwok, they had been married to each other for 30 years.  I could tell by the way they gave their evidence, specifically by the way they spoke of each other, that their relationship with each other was harmonious and intimate.  They were at all material times represented by the same lawyers.  These being the background facts, it was not unusual for their witness statements to be drafted by the same lawyers and be similar.  This was perfectly consistent with both of them having told this Court the truth.  I accepted the passage above, adopted by both Mr and Mrs Kwok as their evidence, as entirely true.

102.  More importantly, even if the evidence of Mr and Mrs Kwok on this issue could be said to be unsatisfactory (it could not), the evidence of Mr Yiu was worse.

103.  As had been aptly pointed out by Mr Damian Wong, Counsel for Mr and Mrs Kwok, in his written closing, when Mr Yiu gave evidence on this issue, he had given two completely different and mutually exclusive versions of it, both of which unreliable.  In his witness statement [A/51, para 17], Mr Yiu alleged Mrs Kwok met him inside the IO’s office in the Estate and asked him why he posted an order of the Small Claims Tribunal in the Estate (“質問為何要張貼該頒令書”), he understood Mrs Kwok and had a conversation with her but did not give her any consent to publish the Words (“the Written Version”).  However, under cross-examination, Mr Yiu changed his evidence and alleged he never understood anything uttered by Mrs Kwok at all (“the Oral Version”).  These 2 versions of event were mutually exclusive, and could not both be true.  I rejected both versions of event put forward by Mr Yiu as false and fabricated by him.

104.  Further, subsequent events had in any case showed that it was more probable that the version of events put forward by Mr and Mrs Kwok was entirely true.  Mr Yiu had been asked about this, in this manner: -

官：我真係唔係好理解呢一點，我需要理解多少少，第54頁呢...

答：係呀。

官：係，你揭到去先喇。

答：好呀，揭到。

官：係，你嘅證人口供嘅第31段都有提到發律師信嗰個日期嘅。

答：係呀，係呀，係呀。

官：咁因為佢個heading就已經係話「本人對於第一及第二被告人上述行為的跟進事宜」喇。

答：係喇，係喇。

官：咁跟住劈頭第一句就話「7月25號」喇，...

答：唔。

官：...咁所以我估就係嗰封就第一封信喇。

答：係。

官：2016年7月25號就第一封律師信，咁點解2015年12月29號就發現，但係2016年7月25號先出律師信呢？我唔係好理解，你可唔可以解釋畀我聽呢？

答：開頭就應該--之前律師就叫我哋即係呢個--我哋都問過，我開頭都唔知呢種叫誹謗㗎。

官：係。

答：凈係知佢貼咗响度，咁搵手機影咗畀啲人睇，咁後屘就畀咗個律師「呢啲就哥哥以告得入㗎，誹謗嚟㗎喇。」咁。

官：係。

答：咁跟住--跟住叫佢去跟進，跟住嗰啲相係用相機嚟影嘅，即係舊陣時我哋只係用手機嚟影啫，係，即係唔清楚，咁後屘6月幾--幾號嗰啲就特登搵相機嚟影清楚啲囉，係。

官：係，即係你嘅解釋點解隔咗咁耐呢，...

答：係呀，係呀。

官：...就因為你之前唔知嗰啲叫誹謗，...

答：係呀，我哋呢方...

官：...問咗律師知喇，咁就所以就隔咗咁耐，okay。

答：係，係，隔得耐啲，係。

官：係。呢度我有少少擔心，因為呢度件案件其中一個爭議點，就係究竟呢個被告貼呢兩封嘢出嚟，有冇你嘅同意呀。

答：唔。

官：咁被告可能會話咪就因為你同意囉，同意，所以咪發現咗都唔--唔出律師信，唔理囉，咁你同意吖嘛，咁點會告啫。

答：唔。

官：咁如果佢哋咁講，咁你會有咩嘢回應呀？

答：我冇同意。

官：你冇同意。

答：係，我何來會同意有人誹謗我呢，係。

105.  So Mr Yiu accepted he became aware of the publication of the Words at the Shop by Mr and Mrs Kwok as early as on 29th December 2015 but did not ask for their removal until 25th July 2016.  The explanation of Mr Yiu was that he did not know it amounted to libel until after he sought legal advice.  I did not accept his explanation as true or credible.

106.  Whilst Mr Yiu struck me as an evasive dishonest liar, he was plainly educated, and it showed.  Mr Yiu might not have been aware of the precise definition of libel, or the rules in the law of libel, but he would be able to understand the meaning of the Words[A/51, para 20] [A/53, para 26] and come to a layman’s decision as to whether he should ask that the Words be removed.  If Mr Yiu did not initially consent to the publication of the Words, judging from Mr Yiu’s general character as I had been able to observe, I would imagine he would be yelling at Mr and Mrs Kwok and asking them to remove the Words immediately after his discovery.  Instead of doing so, Mr Yiu allowed the Words to stay where they were until 25th July 2016.  In my judgment, that must be because Mr Yiu did orally consent to the publication of the Words in the manner as suggested by Mr and Mrs Kwok, and only changed his mind shortly before 25th July 2016.  I held that to be what happened.

107.  As to Mr Chow’s suggestion that what Mr and Mrs Kwok did was beyond the consent given, it had no merits either.

108.  Mr Chow’s point, raised in paragraph 73 of his written closing, was to the effect that Mr Yiu had at most consented to publication of the Words in such a way so that the public could not read the Words.  I rejected this argument.  It was Mr Yiu’s own oral evidence under cross-examination that he lived in the Estate himself and knew literally all owners in the Estate.  Mr Yiu clearly knew the Shop was open to customers of the Business, who could be non-owners.  When Mr Yiu said “貼回自己的店舖內” to Mr and Mrs Kwok, he must have known members of the public would still be able to read the Words, even if the Words faced the inside of the Shop, because customers of the Business would walk into the Shop. Mr and Mrs Kwok did post the Words inside the Shop, it was just that the front of the Shop was made of glass and was transparent.  In my judgment, what Mr and Mrs Kwok did was well within the consent given by Mr Yiu.

109.  Mr Chow drew my attention to the old English case of Cook v Ward (1830) 6 Bing 109, where Tindal CJ and Park J of the English Court of Appeal held that even though the claimant in that case must, by telling a ludicrous story of himself to his own friends, be taken to have consented to that specific publication, that did not justify a 3rd person publishing the same story “all over the country”.

110.  I thank Mr Chow for drawing Cook v Ward to my attention, but with respect I was not assisted by it.  Mr and Mrs Kwok did not publish the Words “all over the country”, or even just “all over Hong Kong”.  Mr and Mrs Kwok only posted the Words at the Shop, exactly as consented to by Mr Yiu.  That was very far removed from Cook v Ward.

111.  Finally, towards the end of Mr Chow’s cross-examination of Mr Kwok, Mr Chow sought to establish that Mr Kwok received the demand letter dated 25th July 2016 from Mr Yiu’s solicitors Jackson Ho & Co [A/89] (“the Demand Letter”) but did not promptly remove the Words thereafter.  This argument had no merits whatsoever.

112.  The Demand Letter was written in legal English.  It described the Words as “calumniations and vilifications”. I asked Mr Kwok about his background.  He said he was educated in Mainland China, up to primary school level.  He came to Hong Kong in around 1987.  As far as the English language was concerned, he only knew the individual alphabets.  He could not read the Demand Letter because it was in English.  I believed him.  It would be wholly unrealistic for any person to expect Mr Kwok to be able to understand the phrase “calumniations and vilifications”, or such similar legal English phrases, in the Demand Letter.  Mr Kwok said, and I accepted as true, he removed the Words in August 2016 after he consulted a lawyer.  On the facts of this case, since Mr Yiu curiously chose to issue the Demand Letter to Mr Kwok in a language which Mr Kwok did not understand, it was reasonable for Mr Kwok to only remove the Words after he understood the demand.  In fact, Mr Yiu could have just walked into the Shop himself and orally asked Mr and Mrs Kwok to remove the Words, but he never did.  He did not issue any Chinese demand letter to Mr and Mrs Kwok either.  I agreed that for the purposes of the defence of consent, a consent previously given could be withdrawn by notice, but the withdrawal must be effectively communicated before it could be considered effective.  On the facts of this case, that only occurred after Mr Kwok took advice on the Demand Letter which he could not read without assistance.  In such circumstances, Mr Yiu plainly could not complain about the timing of the removal of the Words.

Quantum

113.  Having considered the cases on quantum cited by the parties, including Poon Chi Hung William v Yuen Wai Chung (HCA 387/2011, 27th November 2012, DHCJ Au-Yeung) and 梁偉訴倫國祥 (HCA 2657/2002, 11th September 2003, DHCJ Cheung), even if I were wrong on the issue of liability, I would only have awarded general damages in the sum of HKD 80,000 to Mr Yiu.  Whilst the Pleaded Meanings were plainly serious, the number of people who had read the Words was bound to be small, and the defence of justification was also reasonably raised so that even if it failed, this would not be a case where an award of aggravated damages would be necessary, reasonable or proper.  Mr Chow sensibly abandoned the pleaded claim for exemplary damages, there being no evidential basis for the same.

114.  The above was, of course, obiter, given that I ruled against Mr Yiu on liability, and the issue of quantum did not in fact arise.

Costs

115.  Mr Chow sensibly conceded that costs should follow the event, and I ordered Mr Yiu to 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 Kwok to engage Counsel to defend this action, especially since the issue of consent arose on the facts.  I granted Certificate for Counsel to Mr and Mrs Kwok accordingly.

Final Remarks

117.  In my judgment, Mr Yiu was never entitled to any relief, and this action should never have been commenced by Mr Yiu.

118.  I shall leave it to Mr and Mrs Kwok to decide for themselves whether they would like to provide copies of my Reasons for Judgment to the police.  Application for leave would not be required, as these Reasons for Judgment are public.  Mr and Mrs Kwok’s complaints to the police in relation to suspected criminal activities on the part of Mr Yiu would appear to be protected by absolute privilege: Westcott v Westcott [2009] QB 407 at 423 paragraph 36 (per Ward LJ) and 424 paragraphs 41-43 (per Stanley Burnton LJ).

119.  I thank Counsel for their most able assistance.

(Kenneth K Y Lam)

Deputy District Judge

Mr Enzo Chow, instructed by Jackson Ho & Co, for the Plaintiff

Mr Damian Wong, instructed by Johnnie Yam, Jacky Lee & Co, for the Defendants