Hoi Tin Tong Co Ltd v Choy Kwok Keung [2024] HKCA 582 is a high-profile matter involving a well-known manufacturer of Chinese herbal products including turtle jelly.
The subject matter of this claim concerns, inter alia, the Plaintiff’s malpractice of washing the mould off mouldy pots of turtle jellies before selling the same to customers. This malpractice was shown in two demonstrations (the “Demonstrations”) by an employee of the Plaintiff (the “Employee”), which were covertly recorded by a reporter from Apple Daily (“Reporter”) in a video (“Video”) that was subsequently edited and published by Apple Daily on Youtube. The malpractice was also widely reported at the same time in several local newspapers.
The Defendant was formerly involved in the Mainland operations of the Plaintiff, and had informed Apple Daily of the malpractices. The Defendant was further present during one of the Demonstrations.
The Plaintiff alleged that the Defendant was liable for defamation, malicious falsehood and conspiracy to injure.
At first instance, Lok J found in favour of the Defendant on the justification defence. Specifically, having considered the evidence of witnesses, Lok J concluded that the Plaintiff had instructed its staff to adopt the malpractices in question or, at the very least, encouraged or condoned its staff to do so. Lok J further dismissed the conspiracy claim by the Plaintiff, holding in particular that the Demonstrations were not pre-meditated, and there was consequently no agreement between the Defendant, the Reporter and the Employee to injure the Plaintiff as required for a conspiracy claim to be found.
The Plaintiff appealed against the decision of Lok J on the following grounds:-
- Lok J erred in upholding a defence of justification that has not been pleaded – namely, that employees of the Plaintiff would rinse off the mould with water if it was not serious, but discard or return the mouldy turtle jellies in a serious case (i.e. there was different handling depending on the severity of the mould);
- Lok J erred in finding as a matter of fact that (i) the Plaintiff had instructed its staff to adopt the malpractices or at least had encouraged or condoned its staff to do so, and (ii) that the Demonstrations were not staged;
- Lok J erred in holding that the Plaintiff’s claim for conspiracy to injure cannot succeed if the malpractices in question were in fact substantially true; and
- Lok J erred in finding that the Defendant was not liable as a publisher of the Video and the newspaper articles.
The Court of Appeal dismissed the Plaintiff’s appeal for the following reasons.
First, in relation to the defence of justification ground, the Court of Appeal at paragraph 36 of the judgment held that Lok J had correctly decided that the Defendant succeeded on the plea of justification within the parameters of the parties’ pleadings. Importantly, it was not the Plaintiff’s case that the defamatory sting was about the seriousness of the mould and the plaintiff’s instruction on how to treat the turtle jellies with different degrees of mould. Instead, the Plaintiff’s case was that the defamatory string was about whether the Plaintiff had adopted the malpractices at all. Therefore, the reference to the seriousness of the mould was irrelevant for the Defendant to succeed on its defence of justification – so long as the Defendant could demonstrate that the Plaintiff had adopted the malpractice (i.e. the washing of mouldy turtle jellies), this was sufficient to justify the defamatory string. In any event, as held at paragraph 32, no pleading objection or prejudice point was taken at the hearing below.
Second, in relation to Lok J’s findings of fact, the Court of Appeal at paragraph 39 to 54, 57 to 60 held that the Plaintiff had failed to meet the high threshold required to upset findings of fact by a trial judge. The Plaintiff’s submissions were a regurgitation of arguments already deployed in the trial below and rejected. This did not raise any valid grounds of appeal.
Third, on the conspiracy to injure point, the Court of Appeal at paragraph 57 held that as the Demonstrations were not staged, there was simply no basis to find the Defendant liable for conspiracy to injure as there was no agreement between the Defendant and the other alleged co-conspirators (i.e. the Reporter and the Employee).
Fourth, on the publication point, the Court of Appeal held that it is not necessary to consider this ground as the Judge’s views on this issue was obiter.
This high-profile case serves as a reminder that:-
- When considering the pleaded case of the parties as to justification, the Court must pay attention to the pleaded sting or defamatory meaning, and the pleaded justification thereof. It is these matters that are of utmost relevance to a claim in justification. The Court of Appeal therefore endorsed Lok J’s finding as to justification, notwithstanding that the Defendant’s factual case “does not appear to be engaged on the pleadings” (see paragraph 4).As another side of the same coin, this also highlights the importance of properly pleading the sting or defamatory meaning and the corresponding justification in defamation cases.
- The Court of Appeal in deciding the pleading point also took into account the fact that no pleading objection or prejudice point was taken at the trial below. This highlights the importance of making timely objections as to the running of unpleaded cases during trial, lest the parties be barred from taking any pleading point on appeal due to a lack of prejudice.
- Finally, as the Court of Appeal has cautioned time and again, an appeal on a finding of fact has a high threshold to surmount, and it is improper to simply regurgitate arguments already deployed in the trial below that were rejected. This case serves as another salutary reminder of this for intending appellants to the Court of Appeal.
The full judgment is available at https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=160987&currpage=T.
Connie Lee (led by Mr. Paul Lam S.C) appeared for the Defendant before the Court of First Instance for the trial;
Connie Lee and Joshua Yeung (led by Mr. Victor Dawes S.C) appeared for the Defendant (Respondent) before the Court of Appeal.
