POON YING HON v. CCT TELECOM HOLDINGS LTD. AND ANOTHER

bjbjU HCA 3431/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 3431 OF 2001 ____________ BETWEEN POON YING HON Plaintiff and CCT TELECOM HOLDINGS LIMITED 1st Defendant CCT COMMUNICATIONS GROUP LIMITED 2nd Defendant ____________ Before: Recorder J Leong in Chambers Dates of Hearing: 10 and 13 August 2001 Date of Judgment: 17 August 2001 _______________ J U D G M E N T _______________ These proceedings began by a Writ issued by the Plaintiff against the 1st and 2nd Defendants on 31 July 2001 claiming inter alia :- (a) Damages for libel and/or malicious falsehood contained in a notice dated 6 August 2001 entitled Notice of Departure of Employee in respect of and concerning the Plaintiff published or permitted or caused to be published by the Defendants; (b) Damages for conspiracy to injure the Plaintiff; (c) An injunction restraining the Defendants by their directors, their servants or agents or otherwise howsoever from publishing or permitting or causing to be published and/or from further publishing or further permitting or causing to be published the said or any similar libel or malicious falsehood upon the Plaintiff. On the same day the Plaintiff applied ex parte and obtained from Deputy Judge Gill an Order that :- an injunction be granted to restrain the Defendants and each of them whether by themselves or by their directors, officers, agents, servants or otherwise howsoever or any of them from publishing or permitting or causing to be published or from further publishing or further permitting or causing to be published the following words, namely Mr Poon s employment with CCT Communications Group Limited was terminated on grounds relating to his performance as an employee or words to the like effect. It is clear from the various affirmations that have been filed that the parties are in conflict over most of the evidence covering the period since 7 May 2001. This Court cannot reach any finding on conflicting affidavit evidence and those issues will be for the trial judge to determine after hearing evidence. There are, however, a number of documentary exhibits to the various affirmations to which it is possible to have regard in the context of what is on the face of those documents. They also provide a useful matrix against which to view the affirmations and submissions. In chronological date order these are :- 8-11-99 (PYH-1 page 9) Letter of Appointment by the 2nd Defendant to the Plaintiff in respect of his appointment as Director of Professional Services on 1st January 2000. Clause 8 (Notice of Termination) provides : During the period of employment the company reserves the right to terminate you without notice or payment in lieu if you wilfully disobeys a lawful and reasonable order; misconduct yourself where such conduct being inconsistent with the due and faithful discharge of your duties; or are habitually neglectful in your duties; 7-5-01 (PYH-1 page 2) 2nd Defendant to Plaintiff. Notice of Termination of Employment giving 3 months notice of termination. As from 8/5/01 to be no longer attached to the Joint Venture company ( ) and to report to the Defendant s offices in Shun Tak Centre. Whilst serving out his notice the Plaintiff was to continue his duties as an employee and to behave in such manner as is consistent with the due and faithful discharge of your duties as an employee . The notice ends any failure on your part to continue to fulfill your obligations under your Employment Letter will not be taken lightly by the Company and may result in your summary dismissal . 8-5-01 (PYH-1 page 4) Notice by the Plaintiff to the 2nd Defendant that he would only accept notice of termination with effect from 7-5-01. (This was apparently accepted by the 2nd Defendant). 9-5-01 (PYH-1 page 14) Notice of Termination by JV to all its employees stating inter alia that we have decided that it would be in both your best interests and the Company s best interests to terminate your employment with the Company. 4-7-01 (PYH-1 page 29) Letter from Defendants to Plaintiff giving notice of a new assignment to be carried out at its Dongguan office as from 5-7-01 and specifying that : Accommodation and meals would be provided at the factory. He would work under and report to his supervisor in Dongguan. All terms of his Letter of Appointment of 8-11-99 were to continue. 10-7-01 (PYH-1 page 30) Warning Letter from Defendants to Plaintiff that : They had been informed by Plaintiff s supervisor in Dongguan that he did not use the company s accommodation or canteen on 9-7-01. Plaintiff could make his own arrangements for these outside the factory in which event he must notify the supervisor in writing beforehand and provide contact details of his accommodation; the company would not be responsible for his well-being or personal safety outside their premises. 11-7-01 (KHMK-1 page 17A) Letter from Plaintiff to Kenneth Hui (Defendants) replying to 6. above and complaining that : His accommodation has no power socket and has broken windows which allow easy unauthorised entry. He requires privacy after work.. Mr Ling (his supervisor) has threatened him and that he (the Plaintiff) cannot work if his safety is threatened by his supervisor. Mr Ling should be reminded that the Plaintiff is entitled to reside outside the factory. 12-7-01 (PYH-1 page 32) Letter from Plaintiff to Kenneth Hui. Plaintiff has reported on 11-7-01 threats to his safety by Mr Ling. Plaintiff left Dongguan on 11-7-01 because he was sick and uncomfortable. He has consulted a doctor in Hong Kong on 12-7-01 (medical certificate attached). In fact Plaintiff s various medical certificates have been exhibited to various affirmations :- 12-7-01 PYH-1 13-7-01 PYH-1 14-7-01 PYH-1 16-7-01 PYH-1 17-7-01 PYH-1 18-7-01 KHMK-1 19-7-01 HKMK-1 20-7-01 KHMK-1 23-7-01 PYH-1 24-7-01 PYH-1 26-7-01 PYH-1 27-7-01 PYH-1 30-7-01 PYH-1 1-8-01 PYH-2 2-8-01 PYH-2 3-8-01 PYH-2 Certificates re working conditions : 13-7-01 PYH-1 30-7-01 PYH-1 12-7-01 (KHMK-1 page 16) Letter from Defendant to Plaintiff : On 11-7-01 Ling was over-zealous in being unwilling to let Plaintiff leave the office, but acted only out of concern. Note that Plaintiff s sick leave on 12-7-01 was due to worries over threats by Ling on 11-7-01. No threats offered by Ling Expect Plaintiff to resume work at the factory on 13-7-01 17-7-01 (KHMK-1 page 2) Report by Ling (Dongguan) to Defendant about Plaintiff s conduct from 5-11 July : Thursday 5 Demanded change of room. Lunched at managers dining room. No work done. Slept at factory. Friday 6 No work done. Unco-operative. Monday 9 Demanded change of room. Threatened Ling. Accommodation outside factory. Tuesday 10 No work done. Ignored Ling Wednesday 11 No work done. Ignored Ling. Left after work not seen again. 19-7-01 (KHMK-1 page 31) Letter from Plaintiff to Kenneth Hui about working in Dongguan : Office nauseating, smelly, hot, no ventilation for 5 days, no computer, no telephone, only table and chair. Illness caused by working in the office. Plaintiff s doctor recommends not working in such conditions. Seeks confirmation that he cannot return to the Hong Kong office. Asks for date/time/telephone number for conference call. 19-7-01 (PYH-1 page 5) Letter from 2nd Defendant to Plaintiff with Notice (subject of injunction). Noted that Plaintiff took sick leave 12-14, 16-19 July. Concerned that Plaintiff s health may not enable him to complete the Dongguan work in time and other arrangements may be needed. Asks for Plaintiff to be examined by Defendant s doctor. Company will issue attached Notice on 6-8-01 to ensure clean break between the parties. 20-7-01 (PYH-2 page 8) Letter from Plaintiff to Kenneth Hui : Plaintiff willing to be examined by Defendant s doctor. Asks for number for conference call. Asks Defendant to advise and explain Notice for publication (12(d) above). 20-7-01 (KHMK-1 page 46) Plaintiff to Kenneth Hui Still waiting for information about Defendant s doctor to examine Plaintiff. Response required to fax of 20-7-01 (13. above). Plaintiff wants to check personnel file on 23-7-01. 24-7-01 (PYH-1 pages 41 and 45) Letters from Plaintiff s solicitors to 1st and 2nd Defendants. Injury Office hot, poorly ventilated, nauseating gas or smell. Headaches and dizziness. Repeated complaints by Plaintiff but forced to continue without air-conditioning. Movements after work restricted to a tiny room meals and accommodation. Suffering and injury due to Defendant s negligence in not providing safe working conditions and forcing him to work in hazardous environment. Letter of 19-7-01 and Notice of Departure of Employee. False, untrue and misleading Notice. Publication solely to injure Plaintiff s profession and career. Retract within 72 hours and give undertakings. Employment dispute. Refusal to let Plaintiff attend office and discharge his duties or report as usual. Company has completely lost confidence and trust in Plaintiff. Wrongful termination of employment. 27-7-01 (PYH-1 page 49) Letter from Defendant to Plaintiff s solicitors (reply to 15. above). Defendant surprised and dismayed at Plaintiff s allegations and claims. Plaintiff s account of events is inaccurate, misleading and incomplete. We may, in light of the various concerns of your client, make further amendments to the content of the Notice at our sole discretion. There are no grounds for Plaintiff s allegations. Defendant has reason to suspect that Plaintiff is wilfully disobeying lawful and reasonable orders and is conducting himself in a manner inconsistent with the due and faithful discharge of his duties under his employment contract. 3-8-01 (PYH-2 page 1) Letter from 2nd Defendant to Plaintiff summarily dismissing him with immediate effect. 3-8-01 (PYH-2 page 6) Letter from Plaintiff s solicitors to Defendant with Notification of Accident form claiming : Accident : 5-11 July 2001 at Dongguan Factory Forced by Employer to sit in a poor ventilation hot and poor smell office in CCT Telecom factory for 5 days . Part of body injured : head Specifics : persistent headache dizziness depression cough sore throat The sequence of applications and affirmations filed herein is as follows:- 31-7-01 Writ of Summons 31-7-01 Plaintiff s first affirmation 31-7-01 Ex parte Order 31-7-01 Inter partes Summons 1-8-01 Service of documents on 1st and 2nd Defendants 8-8-01 Plaintiff s second affirmation 8-8-01 Affidavit of Clarence Cheung Fong Wai 10-8-01 Affidavit of Hui Man Keung 10-8-01 Affidavit of Maximillian Shuk Lun Tung There have been lengthy affirmations filed dealing with the background to this matter. It is clear that the factual issues are, by and large, in serious dispute. Those matters will have to be resolved by the trial judge. There are however, some areas of common ground which include the following :- (a) The Plaintiff was employed by the 2nd Defendant as from 1 January 2000. (b) From December 2000 to May 2001 the Plaintiff was seconded by the 2nd Defendant to the JV company. (c) Work on the JV project was discontinued in early 2001. (d) On 7 May 2001 the Plaintiff s employment with the 2nd Defendant was terminated as from 6 August 2001. (e) On 9 May 2001 the Plaintiff s employment/secondment to the JV company was terminated. (f) No complaints or allegations of misconduct are directed by the Defendants or the JV company to the Plaintiff s work or conduct between 1 January 2000 and 7 May 2001. Indeed Mr Yan for the Defendants intervened at the outset of the hearing before me to so inform the Court. (g) Differences arose between the Plaintiff and the Defendants after 7 May 2001. (h) On 19 July 2001 the 2nd Defendant gave the Plaintiff notice of its intention to publish the Notice, the subject of these proceedings, on 6 August 2001. (i) On 31 July 2001 the Order of Deputy Judge Gill was made pursuant to an ex parte application. (j) On 1 August 2001 the Order and Inter Partes Summons dated 31 July 2001 were served on the Defendants. (k) On 3 August 2001 the Plaintiff was summarily dismissed by the Defendants with immediate effect. This was 3 days before his employment would have ended by effluxion of time pursuant to the termination notice under (d) above. The matters that occurred between 7 May 2001 and 3 August 2001 are in issue between the parties and are dealt with at length in the evidence that has been filed. Suffice it to say that it is the Plaintiff s case that, for what he says are vindictive reasons, the Defendants gave him no constructive duties to carry out in either their Hong Kong or Dongguan offices, and that he was in addition treated very shabbily at the Dongguan factory as a result of which he has suffered in his health. It is the Defendants case that the Plaintiff wilfully and persistently refused to work as required or to carry out instructions as a result of which they summarily dismissed him on 3 August 2001. The last paragraph of the letter dated 19 July 2001 from the 2nd Defendant to the Plaintiff sets out the context in which the proposed Notice would be published. It said :- On a separate but related point, the company is of the view that it would be in our mutual interests to ensure that on 6 August 2001 there is a clean break between the company and yourself with respect to your employment contract. As such, for your information, the company will on that day arrange to publish in all major local newspapers (both English and Chinese) the attached announcement so as to ensure that there is no misunderstanding among the general public, in particular, telecom service providers and telecom equipment suppliers, that you cease to have any further connections with our company or any other company within the CCT Group. A copy of the proposed announcement was attached and read as follows :- CCT TELECOM HOLDINGS LIMITED NOTICE OF DEPARTURE OF EMPLOYEE Please note that with effect from 6 August 2001, Mr Poon Ying Hon (Hong Kong Identity Card No. G5430XX(7)) ceased to be an employee of CCT Communications Group Limited, a wholly-owned subsidiary of the Company. Mr Poon s employment with CCT Communications Group Limited was terminated on grounds relating to his performance as an employee. During his employment with CCT Communications Group Limited, Mr Poon was seconded to CCT-Teligent Co. Limited, a former subsidiary of the Company as Project Director. The Company hereby confirms that with effect from 6 August 2001 Mr Poon does not in any way have any further connection with the Company, CCT Communications Group Limited or any other subsidiary or associated companies of the Company. By order of the Board Hong Kong, 6 August 2001 The second paragraph of the proposed announcement, which I have highlighted, is the one to which the Plaintiff objects and which is the subject matter of the injunction sought. The Plaintiff responded by sending 2 faxed letters to Mr Kenneth Hui of the Defendants the next day, 20 July 2001. In the first one he asked inter alia :- Please advise and explain what is the meaning on the statement Mr Poon s employment with CCT Communications Group Limited was terminated on grounds relating to his performance as an employee which you are going to publish in the major local Chinese and English newspaper, especially on the wording of . On the grounds relating to his performance as an employee There was apparently no response from the Defendants and the Plaintiff then sent a second fax to Mr Hui on the same day saying Please response to my queries stated in my previous fax to you. Again there appears to have been no response from the Defendants. The Plaintiff then instructed solicitors to write on his behalf to the Defendants on 24 July 2001 in relation to the letter of 19 July 2001 from the 2nd Defendant to the Plaintiff and the proposed announcement. They complained that the notice was false, untrue and misleading and asserted that the offending part was solely and directly related to the JV company and that its purpose was to injure the Plaintiff s profession and career. They pointed out that the Plaintiff had never been a member of the board nor involved in the management of the Defendants or the JV company and that he had a record of excellence in the industry. They demanded a retraction within 72 hours and threatened injunction proceedings. On 27 July 2001 the 2nd Defendant replied through Mr Max Tung, its general counsel who is one of the deponents in these proceedings. The Defendant denies that it is trying to injure the Plaintiff s professional reputation and assures him that the Notice had not yet been published in any newspaper. It then goes on to say that We may, in light of the various concerns of your client, make further amendments to the content of the Notice at our sole discretion. I regard that last statement as a conciliatory offer to accommodate the Plaintiff s concerns by making possible amendments, albeit subject to the Defendant s overriding discretion. Unfortunately, but perhaps not unexpectedly having regard to the heat that had been generated between the parties by then, this olive branch was not taken up. Indeed Mr Soo for the Plaintiff has characterized it before me as a demonstration of the Defendant s arrogant determination to pursue its purpose at will. The Plaintiff chose instead to issue the Writ of Summons commencing this action on 31 July 2001 and on the same day applied ex parte before Deputy Judge Gill for an interim interlocutory injunction restraining the Defendants from publishing the Notice. An Order was made that day and the Plaintiff now seeks a continuance of the Order or alternatively an order in terms. The Order was served on the Defendants on 1 August 2001. On 3 August the 2nd Defendant summarily dismissed the Plaintiff with immediate effect. It is important to bear in mind that the Plaintiff was dismissed twice by the 2nd Defendant :- (a) The first dismissal was effected by the notice of termination on 7 May 2001 terminating his employment with effect from 6 August 2001. (b) The second dismissal was effected by the notice of summary dismissal on 3 August 2001 with immediate effect. It is not in dispute that the notice of termination on 7 May 2001 was not due to any issue over the Plaintiff s performance or conduct as an employee. There is no evidence before me to suggest otherwise and Mr Yan for the Defendants has very fairly conceded that that is so. The Notice complained of was clearly intended to refer to the termination by the letter of 7 May 2001. It refers specifically to the employment terminating on 6 August which was the date relevant to the letter. Advance notice of it was given to the Plaintiff on 19 July and said to be for the purpose of making clear to the industry and the public that the Plaintiff s association with the Defendants was at an end. These events were also well before the summary dismissal on 3 August. The Order of 31 July 2001 was sought and obtained in relation to what I might call the First Dismissal . The inter partes Summons was issued on 31 July 2001 and therefore was clearly intended also in relation to the First Dismissal. However other events intervened between the issue and hearing dates, namely what I might call the Second Dismissal . To that extent, the present application has been overtaken by events and the First Dismissal has been rendered nugatory by the Second Dismissal. However the matter must be dealt with in the context of the circumstances prevailing at the time of the hearing. The Summons before me is to restrain the Defendants from publishing the words Mr Poon s employment with CCT Communications Group Limited was terminated on grounds relating to his performance as an employee or words to the like effect . Mr Soo has submitted that it is the Plaintiff s case that any injunction granted should also cover any reference to the Plaintiff s secondment to the JV company (CCT-Teligent Company Limited). Mr Soo says that the inclusion of the JV company in the intended publication is intended to and would be defamatory to the Plaintiff for the same reasons. It is clear from the submissions on behalf of the Defendants that they intend, unless restrained, to publish the Notice issued on 19 July. Presumably the termination date would however be changed from 6 August to 3 August having regard to the Second Dismissal. It is convenient here to look at the law in relation to interlocutory injunctions in defamation. The nature of the jurisdiction is defined in Gatley on Libel and Slander, 9th Edition at paragraph 25.2 as follows :- The jurisdiction to grant interlocutory injunctions to restrain publication of defamatory statements is of a delicate nature , which ought only to be exercised in the clearest cases . That was stated by Lord Esher M.R. in Coulson v. Coulson and it encapsulates the general approach of the Court. The reluctance to grant peremptory injunctions is rooted in the importance attached to the right of free speech. Thus the Court will only grant an interlocutory injunction where, the statement is unarguably defamatory; there are no grounds for concluding the statement may be true; there is no other defence which might succeed; there is evidence of an intention to repeat or publish the defamatory statement. . The practice established in applications for interlocutory injunctions by American Cyanamid v. Ethicon, of not considering the merits of the case once it had been shown there was a serious issue to be tried, but determining where the balance of convenience lay between the parties as regards the imposition of a restraining order, has been rejected as inappropriate in defamation cases. The leading authority for this important principle is Bonnard v. Perryman [1891] 2 Ch. 269, 284 where Lord Coleridge said : But it is obvious that the subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions. The stringent application of the jurisdiction to a plaintiff was described in Target Newspapers Limited v. Narain [1989] 2 HKC 16 at 23G as the extremely difficult hurdle he must clear in order to obtain interlocutory injunctive relief a task that almost invariably is greater than that which a plaintiff in a libel action must face at the trial itself. It is submitted on behalf of the Defendants that the ex parte Order should be discharged and that the injunction should not be continued on the grounds that, first, the Defendants will rely on a plea of justification, and secondly, there was serious non-disclosure of material facts and legal principles and authorities in the ex parte application. I will deal first with the issue of justification. Paragraph 21 of the affidavit of the Defendants general counsel Maximillian Shuk Lun Tung puts the defence of justification in these terms :- I must emphasise, however, that it is the Defendants position that the claims made by Mr Poon are without foundation and the Defendants will strenuously defend against these claims. Furthermore, the Defendants will, at the trial of this action, seek to justify, and I verily believe will be able to justify, the allegation that Mr Poon had behaved badly in the course of his employment, had refused and failed to co-operate with management and had not duly and properly performed his duties, and that he has been summarily dismissed for these reasons. This makes it clear that the defence of justification is being raised in respect of the Second Dismissal on 3 August. The basis of the defence of justification is set out thus in Gatley (supra) at paragraph 25.6 :- Where the defendant contends that the words complained of are true, and swears that he will plead and seek at trial to prove the defence of justification, the Court will not grant an interlocutory injunction, unless, exceptionally, the Court is satisfied that such a defence is one that cannot succeed .. That a plaintiff cannot obtain an interlocutory injunction to restrain the publication of defamatory words in the face of an affidavit from the defendant stating that he can and will justify the alleged libel can now be regarded as an invariable rule, unless it is plain that the plea of justification is bound to fail. The defendant need not swear that he will justify the particular words or allegation comprising the alleged libel : it is sufficient for him to declare his intention to justify the core or sting of the alleged libel, provided, of course, that the core or sting is a wider or more general meaning than that conveyed by the particular matters described in the words complained of, and is a meaning the words are capable of bearing. The ambit of the defence was described in Khashoggi v. IPC Magazines [1986] 1 WLR 1412, 1413 as :- the principle that an injunction would not be granted to restrain publication of an alleged defamatory statement where the defendant intended to advance a plea of justification extended to the situation where the defendant intended to justify the common sting of several allegations, including the allegation complained of, even though he might not be able to prove the particular facts contained in that allegation; and that, accordingly, since the defendants intended to justify what was said to be the sting of the article the injunction should be discharged. In so far as the First Dismissal, the subject of the Order of Deputy Judge Gill is concerned, for the reasons given above, the Plaintiff s conduct and performance could not have formed any part of the basis for that dismissal. The Plaintiff has said so affirmatively on affirmation. The Defendants have not put forward any evidence to the contrary. Mr Yan for the Defendants has conceded that the Defendants make no complaint about the Plaintiff s conduct or performance prior to 7 May 2001. The Order should not therefore be set aside because the defence of justification would be doomed to failure in those circumstances. The authorities for this are :- (a) Crest Homes Limited v. Ascott [1980] FSR 396 per Stephenson LJ at 398, the general rule (is) that a defendant who intends to plead justification will not be restrained from publishing a libel unless the plaintiff can prove that the libel is untrue. (b) Holley v. Smyth [1998] QB 726 per Slade J. at 750, the burden falling on a plaintiff is a heavy one, if he seeks to satisfy the court that the rule (in Bonnard v. Perryman) should not be applied on the grounds that the defendant s proposed plea of justification cannot succeed; the falsity of the relevant allegations must be clearly shown . (c) Halsbury s Laws of England, 4th Edn. Vol.28 at para. 171, An injunction will be granted only if the plaintiff can satisfy the court that any jury would say that the matter complained of was libellous and where, if it did not so find, the court would set aside its verdict as unreasonable. I am therefore satisfied that the defence of justification could not be sustained in respect of the First Dismissal and therefore in respect of the Order of 31 July 2001. It follows that such Order should not be set aside. But the question of whether it should be continued is another matter. The position in respect of the Second Dismissal is quite different. I am satisfied that the words complained of are capable of being libellous on their face. But there is evidence, albeit strongly disputed by the Plaintiff, that the Defendants may have had grounds for the Second Dismissal by reason of the Plaintiff s conduct and performance. The Defendants have raised the defence of justification and averred that they will be able to establish that defence at trial. I am satisfied that, based on that averment and the authorities to which I have referred, an injunction should not be granted in the terms of the Inter Partes Summons in respect of the alleged libel in so far as the Second Dismissal is concerned. Although it is not the subject of the application before me, I do feel strongly that the second sentence in the second paragraph of the draft announcement ( During his employment with CCT Communications Group Limited, Mr Poon was seconded to CCT-Teligent Co. Limited, a former subsidiary of the Company as Project Director ) ought not to be included in any such announcement if the same is to be published in relation to the Second Dismissal. Much has been said on behalf of the Defendants about whether American Cyanamid [1975] AC 396 is applicable to interlocutory injunctions in defamation. Should anything turn upon the point, I make it clear that I am satisfied that the principles in that case are not applicable to such injunctions Bestobell Paints Ltd v. Bigg [1975] FSR 421 J. Trevor & Sons v. Solomon [1977] 248 E.G. 779 Target Newspapers Ltd. v. Narain (supra) The Defendants argue that by reason of material non-disclosure by the Plaintiff at the time of the ex parte application, that the Order of 31 July 2001 should be set aside and further that the Court should refuse to grant fresh relief in its place upon the present inter parties application. There is no doubt that the Plaintiff did not disclose in his first affirmation anything about the serious disagreements that had arisen between the Defendants and himself after 7 May 2001 and the First Dismissal. The issue is whether such non-disclosure was material to the application and to any order that the Court might make. If the Order was in respect of the First Dismissal, then the non-disclosure of information subsequent to that event and relevant only to the Second Dismissal could not have been material. But it is clear from the Plaintiff s first affirmation that he was referring at all times to the First Dismissal. The position would have been different if, in his second affirmation where he is specifically dealing with the Second Dismissal, the Plaintiff had concealed the areas of dispute between himself and the Defendants that have arisen after 7 May 2001. But he has not. Indeed he addresses the issues directly. Mr Yan for the Defendants complains at some length about what he says was the failure of the Plaintiff to inform the Court that the principles in American Cyanamid v. Ethicon (supra) were inapplicable to defamation injunctions. I find it difficult to advance this matter one way or the other. The authority is cited, together with Bonnard v. Perryman (supra) in both counsel s skeleton argument and list of authorities for the ex parte hearing. That hearing lasted 7 minutes according to the Court s records. The notes of Deputy Judge Gill are so sparse that it is not possible to see what if any submissions were made on the Plaintiff s behalf. In all the circumstances, the waters in that area are too murky for any realistic picture to emerge of what occurred at that hearing. In any event, for reasons given above, the point is of no real assistance one way or the other. Conclusion There is now only one dismissal that is effective and relevant for present purposes, namely the Second Dismissal on 3 August 2001. A statement that the Plaintiff s employment with the Defendants was terminated on 3 August 2001 on grounds relating to his performance as an employee may well be defamatory per se. The Defendants raise a defence of justification. There is evidence, albeit strenuously denied by the Plaintiff, that is capable of supporting justification. Even if there were not, the Defendants have sworn on affidavit that they can and will rely upon justification. In the circumstances, it would be wholly inappropriate to grant an interlocutory injunction restraining the Defendants in the terms sought. The Order of 31 July 2001 should also therefore now be discharged. I will hear the parties as to any consequential matters and as to costs. Jacqueline Leong, SC Recorder Court of First Instance Gary Soo, instructed by C L Chow & Macksion Chan, for the Plaintiff John Yan, instructed by Richards Butler, for the 1st and 2nd Defendants - PAGE - & 6" HCPI No Administrator HCA.dot Sharon LY Shum Microsoft Word 9.0 HCPI No Title Microsoft Word Document MSWordDoc Word.Document.8