Defamation damages are fact-sensitive, i.e. the appropriate quantum turns on the facts of each case. But, we can get a glimpse of how defamation damages work from a recent judgment of the District Court as follows.
The Judgment. On 18 April 2023, Deputy District Judge Kenneth K. H. Lee (Judge) handed down a judgment in Chan Shung Fai v Chan Kam Wah [2023] HKDC 499, being an assessment of damages caused to a son by a father’s publication of five sets of defamatory statements.
The Parties. The son is the plaintiff, an investment banker and entrepreneur. The father is the defendant. They both stood for the 2019 Village Representative Election for Ping Yeung Village (Election).
The Offending Publications. The five publications complained of comprise: (i) an announcement by the father to break ties with the son, published on the entire front page of Oriental Daily News; and (ii) four videos of the father speaking about the son, published on the websites of HK01, Oriental Daily News and Apply Daily and YouTube respectively.
Legal Principles on Damages. General damages are awarded to compensate damage to reputation (depending on the gravity of the libel and the extent of the publication) and injury to feelings and to vindicate reputation.
Aggravated damages are to compensate for additional injury caused by the defendant’s unreasonable conduct: a kind of conduct that rubs salt into the wound.
Special damages are awarded to compensate any pecuniary loss suffered, such as loss of employment or business.
Exemplary damages are awarded if the defendant has been oppressive or has deliberately committed a tort with the intention of gaining some calculated advantage.
Separate or Global Award. The Judge adopted a separate assessment approach (as opposed to a global approach), as the nature, medium, extent and seriousness of the five publications were very different.
Apology. Shortly before the assessment hearing, the father filed a supplemental witness statement offering an apology for the publications. The Judge observed that the father was unable to give any satisfactory explanation as to why he had refused or failed to tender an apology to the son earlier, despite the three letters before action, Statement of Claim and witness statement from the son, and found that the belated apology was merely a tactical move to reduce damages and therefore should be disregarded.
Malice. The Judge found that the dominant motive of the publications was to damage the son’s chances in the Election and therefore the father was actuated by malice.
Quantum. The son was award the sum of HK$1,070,000 in damages for the 5 defamatory publications by the father (as follows) with interest at judgment rate from the date of judgment until payment.
Costs. The father was also ordered to pay the son’s costs of the assessment of damages, with certificate for Counsel, to be taxed if not agreed.
Conclusion. The moral of this story is that if an apology is to be made in defamation proceedings, it should be made at an early stage, since a belated apology may be disregarded and attract aggravated damages, as well as the claimant’s costs, which may also be substantial.
For further information, please contact:
Carmen Ng, Partner, Deacons
carmen.ng@deacons.com
