Law Chi Ching v. Apple Daily Ltd and Others

HCA 2155/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 2155 OF 2009

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J U D G M E N T

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INTRODUCTION

1.The plaintiff commenced this libel action in October 2009 alleging that the defendants published defamatory articles against her on (and since) 25 May 2008; one article appeared once in the newspaper and the other article appeared on the website until 23 November 2011.  The 1^st defendant was the publisher of the said newspaper and owner of the said website; the 2^nd defendant was the newspaper printer; the 3^rd defendant was the editor of the said newspaper and the 4^th defendant the reporter employed by the 1^st defendant (and writer of the said news article) (“Ms Jae”).

2.The contents of the said articles are the same and will be called “the subject article” below for convenience.  The subject article is a relatively short article; it is annexed to this judgment for convenience (see also para 11 to 14 below).

3.The defendants deny the claim, contending that the subject article:

(a) did not refer to the plaintiff;

(b) did not bear any defamatory meaning;

(c) was published on a privileged occasion (relying principally on the defence of responsible journalism).

They also contend that, even if liable, the plaintiff has exaggerated the quantum of loss from which she suffered.

BACKGROUND

4.The plaintiff was (and is) a civil servant whose rank was Workman II.  She was a general worker at one of the police stations in Kowloon; her duties included cleaning, moving various office furniture or equipment and serving food and drinks.

5.Although her precise connection to the Chinese dessert shops in the Shamshuipo and Yaumatei areas is disputed, she was perceived by more than a few of her acquaintances as the lady owner of those shops, which were owned and operated by a Mr Cheung (who has been close to, and living with, the plaintiff) (“Cheung”).  Among such persons was the individual who made the complaint to Ms Jae (and hence the description “opening and operating the dessert shops” (開設糖水店) in the subject article).

6.Ms Jae received a complaint concerning the plaintiff on 9 May 2008 (about 2 weeks before the subject article’s publication).  She considered it a serious matter and telephoned the police on the same day to enquire about the matters raised by the complainant.  The telephone inquiry was followed by a written one which Ms Jae sent to the police by fax dated 9 May 2008.

7.The plaintiff’s attention was drawn to the subject article when it was published, and she read it on the same day.

8.About a week after the publication of the subject article, some plainclothes policemen visited one of the dessert shops and searched it.  Nothing untoward was found (there is also no evidence of disciplinary or prosecution action).

9.The plaintiff applied for, and was granted, special leave from 2 January 2009 (about half a year after 25 May 2008) which lasted till 4 January 2010 (without pay).  Her wages were $10,595 per month and so the amount of wages which would have been payable for the leave period totalled $127,140.

10.She also attended sessions at a psychiatric centre since about September or October 2008 (about 3 or 4 months after 25 May 2008) and consulted a psychiatrist.

THE SUBJECT ARTICLE

11.The subject article did not identify the target person by name.  In gist, it covered 6 matters:

(1) the target person was a female who was a civil servant attached to the police force.  Her approximate age and work period were given, and she was identified as one who had operated at least 3 dessert shops in the Shamshuipo and Yaumatei areas;

(2) it was earlier discovered that she had stolen stationeries from the Cheung Sha Wan police station (“the earlier theft”), and she was given a verbal warning as a result;

(3) it was suspected that, for the past year, she had frequently stolen cleaning items and tools from there, and used them at the said dessert shops (“the suspected theft”);

(4) she was also accused of frequently leaving her work place or was loaf on the job, which caused people to gossip or be discontent (“the alleged misconduct”);

(5) despite complaints having been made to her superior(s), no action had been taken against her, and it was thus suspected that someone had covered for her (“the suspected cover up”);

(6) the response of the police spokesman to the effect the police station never received complaint of the above, and that the police would investigate and deal with the same sternly and properly according to law and internal discipline (“the police response”).

12.The subject article consists of two parts: a heading and the article itself (which has 3 columns). The heading is purely about the suspected theft.  As regards the article:

(a) the earlier theft appeared twice: at the beginning (first paragraph) and the second paragraph (with a theft of souvenirs added);

(b) the suspected theft appeared thrice at all 3 columns.  Details of the stolen items were given at the left and middle columns; a graphic “first-person” narration was given by way of a quote at the middle column;

(c) the suspected motive for the suspected theft was given at the left and right columns;

(d) the alleged misconduct and the suspected cover up appeared at the right column;

(e) the police response appeared at the right column (the last paragraph).

13.The subject article was placed at the top left hand corner of p A11 of the 25 May 2008 issue of “Apply Daily” (the “local news” page).

14.As stated earlier, the contents of the internet version of the subject article were the same (although this version was not divided into different columns).  Because the contents were the same, the discussion below should be taken as applicable to both versions (unless otherwise stated).

IMPUTATION(S) OF THE SUBJECT ARTICLE

15.To resolve the dispute summarized at para 3(a) and (b) above, it is proper (and necessary) to begin by considering the imputation(s) of the subject article.

(a) Relevant legal principles

16.For such purpose, the relevant legal principles can be distilled as:

(1) words are normally construed according to their natural and ordinary meaning;

(2) the words the subject-matter of the analysis are given only a single meaning;

(3) the single meaning is that ascribed to the words by a fictitious ordinary reader;

(4) context of the words needs to be taken into account; in other words, the article in question must be taken as a whole;

(5) whether the words were believed (or not believed) by the audience is irrelevant (unless they were totally beyond belief).

Details of the above can be found in Wong Wai Kay v Hong Kong Economic Journal Co Ltd and Another  [2013] 3 HKLRD 27, para 9; Oriental Press Group Ltd and Others v Fevaworks Solutions Ltd t/a Alive! Media and Communications and Another HCA 597/2009 (25 February 2011), para 14 and 15; Charleston and Another v News Group Newspapers Ltd and Another [1995] 2 AC 65, 71F-72F; Gatley on Libel and Slander (2013) 12^th Ed, para 2.1, text to nn 15 and 16, 3.13 to 3.18 and 3.24.

17.To put the above in another way, there are two stages to the process for determining whether the words are defamatory:

(a) first, to decide what the words mean;

(b) secondly, to decide whether that meaning is defamatory (and if defamatory, the “sting” of the defamation).

See Gatley, para 2.1.

18.Further, where a defamation action is tried by a judge without jury, it would be carrying artificiality too far to require the judge to arrive at the single “right” meaning by distinguishing between various meanings which the words were capable of bearing, and then choosing the “right” one: Next Magazine Publishing Ltd and Others v Oriental Daily Publisher Ltd (2000) 3 HKCFAR 160.

19.Gatley has offered a working definition of “defamatory meaning”:

“a defamatory imputation is one to the claimant’s discredit, or which tends to lower him in the estimation of others or causes him to be shunned or avoided; or exposes him to hatred or ridicule.”

Gatley, para 2.1, text to nn 4 to 7, quoted in Oriental Daily Publisher Ltd and Another v Ming Pao Holdings Ltd and Others HCA 607/2008 (28 May 2010), para 23.

20.There is no reliance on “innuendo” (save perhaps as regards whether the subject article was referrable to the plaintiff).

21.The above principles have been taken into account when determining the imputation(s) of the subject article.

(b) Referrable to the plaintiff?

22.One of the issues raised by the pleadings is whether the subject article referred to the plaintiff.  Here the plaintiff’s case is not that all the readers who have read the subject article would know that she was the target person; those who did would be her acquaintances (relatives and friends, work colleagues, and frequent patrons of the 3 dessert shops).

23.In their closing submissions, the defendants fairly (an correctly) accept that:

“a very limited amount of readers [would] understand that [the subject article] referred to [the plaintiff]” (para 22 thereof).

24.The defendants have not made clear why the concession was made.  It appears to be based on the testimony given by the plaintiff, Cheung and the plaintiff’s friend (“Mdm Ho”).  There was some protracted cross-examination of the plaintiff about her connection with the 3 dessert shops.  However, the part of the subject article concerning the plaintiff’s suspected motive for the suspect theft (which the defendants would have to accept was based on valid grounds) militates against the plaintiff not being truthful or reliable about this point (see also para 5 above).

(c) Was the subject article defamatory?

25.For ease of reference, the characteristics of the fictitious ordinary reader (see para 16(3) above) are set out below:

“The fictitious ‘ordinary reader’ is described as one with the following temperament:

‘He is a sort of half way house between the unusually suspicious and the unusually naive. He is essentially fair-minded and reasonable and does not jump to hostile conclusions on flimsy evidence; but he may be guilty of a certain amount of loose thinking and does not read a sensational article with cautious and critical care ... and his capacity for implication or drawing inferences is greater than the lawyer’s ... The layman reads in an implication much more freely, and ... is especially prone to do so when it is derogatory’ (Gatley, para 3.25).

See also Charleston and Another v News Group Newspapers Ltd and Another [1995] 2 AC 65, 71F-72F”

(quoted from Mok Kam Kwai v Lam Mo Fat HCA 1868/2010 (6 March 2014), para 31).

26.In their denial of the subject article having a defamatory imputation, the defendants principally rely on two matters:

(1) the words “被指”, “懐疑” and “涉嫌” (all bearing the meaning of, or akin to, “suspicion”) were repeatedly used in the subject article (7 times according to the defendants);

(2) the final paragraph of the subject article set out the police response, which (among other things) said that no complaint had been received.

Based on the above, it is argued that a statement about a mere suspicion is not defamatory.

27.It is convenient to first deal with the second matter (no complaint received).  The absence of complaint on its own could mean that the earlier theft, the suspect theft and the alleged misconduct:

(a) did not happen; or

(b) were not made known to the authorities.

28.In this connection, it should be noted that the suspected cover up appeared shortly before the police response.  It is thus proper for the absence of complaint to be read and considered together with the suspected cover up.  When so read, the ordinary reader would be prompted to imagine that this was the result of the misdeeds not having been properly reported.

29.Indeed the whole of the subject article seems to be structured in a way to prompt the ordinary readers’ imagination.  It began with a description (which purported to be factual) of the earlier theft, a misdeed involving sundry items of relatively small values (and which resulted in only a verbal warning being given).  This suggested a person who was greedy for petty advantage.

30.Significantly the subject article did not say the earlier theft was a suspected crime.  And as if to reinforce that imagination, the earlier theft was repeated at the second paragraph.

31.By the time the suspected theft appeared in the subject article, the above impression concerning the target person would already be imprinted onto the ordinary reader’s mind.  Here again his imagination was prompted: a suspected motive (of stealing the cleaning items for use at the target person’s commercial undertakings) was mentioned.  This was consistent with what a person greedy for petty advantage would have done.

32.The insertion of a quote in a “first person” style, giving details as to what has been stolen, emphasizing the quantity of items stolen, and the manner in which they were taken away (using the words “越嚟越狼” (increasingly daring), “紙皮箱” (carton box(es)) and “運走” (move away)), must also have been intended for the same purpose.

33.The inclusion of the alleged misconduct would have also been left a similar impression with the ordinary reader.

34.Read in the light of the above, the use of the words suggesting suspicion could not “neutralize” the imputation that the target person has in fact committed the theft, and she did so out of greed and for her personal commercial gain.  The police response would not be able to do so either.  First, para 26(2) to 28 above are repeated; secondly, it is unclear whether the police response was only limited to the suspected theft, the alleged misconduct and/or the suspected cover up (but not the earlier theft): see para 12(b) to (e) above.

(d) “Sting” of the defamation

35.For the above reasons, I am satisfied that the plaintiff has established the subject article to bear the following pleaded defamatory imputations:

(1) the target person has stolen stationeries from the police station;

(2) the target person has stolen cleaning items and tools from the police station for use at her own dessert shops;

(3) the target person was dishonest and acted in breach of the trust reposed by the employer;

(4) the target person was lazy;

(5) the target person’s misdeeds became increasingly daring.

(as found at para 24 above and 51 below, the subject article’s target person was understood by the plaintiff’s acquaintances to be referrable to her)

(e) Responsible journalism

36.This line of defence has its origin in the decision in Reynolds v Times Newspapers Ltd and Others [2001] 2 AC 127.  The Reynolds decision on “journalistic privilege” (the privilege has now been extended to non-journalistic occasions) effectively became part of Hong Kong when it was adopted in Next Magazine Publishing Ltd and Others v Ma Ching Fat (2003) 6 HKCFAR 63.

37.A non-exhaustive list of factors for applying the “journalistic privilege” has been set out in the Reynolds decision (p 205).  There is no need to repeat the factors, save to say that the defendants have failed to act responsibly in the manner set out below.

38.Bearing in mind a serious allegation of the commission of a criminal offence has been made by the subject article:

(a) the defendants failed to take reasonable steps to verify the information.  This point is related to sub-para (b) and (c) below;

(b) in particular, Ms Jae has failed to give a valid reason as to why the plaintiff was not consulted. She already knew the plaintiff’s identity and work place.  There does not seem to be any difficulty for contact to be established.  For example, a letter/note (or other means of contact) could be left for the plaintiff to respond to, or to enable the plaintiff to contact, Ms Jae;

(c) Ms Jae also failed to explain why she decided the subject article should be published on 25 May 2008, without (i) seeking further response from the police, or (ii) waiting for the police to complete the investigation.  There was already a time lapse of some 2 weeks between the receipt of the information (9 May 2008) and 25 May 2008;

(d) the manner in which the subject article was written has been mentioned earlier (para 11 to 13 and 27 to 34 above). The way in which the earlier theft was narrated failed far short of what one can expect of a reasonably competent and responsible journalist.  Rather than a piece of objective news reportage, it has the inclination of promoting unwarranted and adverse imagination against the plaintiff.

39.As regards para 38(a), (c) and (d) above, the credibility of Ms Jae needs to be briefly mentioned.  As mentioned in para 6 above, after receiving the complaint, she contacted the police by telephone and by fax message to seek a response on the same day.  She testified that response was sought both as to the earlier theft and the suspected theft.  However, the fax message she sent on the same day (and was very probably a contemporaneous document) did not contain anything about the earlier theft.  I find her testimony to the effect she had in fact verbally mentioned the earlier theft to be implausible judging from the said omission.

40.At the end, I am not satisfied that this defence has been made out.

CONCLUSION ON LIABILITY

41.The defendants are found to be liable in defamation.  I now turn to consider the quantum of loss claimed by the plaintiff.

QUANTUM OF LOSS

42.The plaintiff puts forth the following heads of claim:

(1) $1.5 million for general damages;

(2) $100,000 for 7% loss of earning capacity;

(3) $127,140 for loss of past-earnings (special leave of about one year);

(4) $28,540 for medical expenses.

43.The purposes or objectives for awarding damages for defamation are trite and have been repeatedly stated in more than a few judicial authorities and practitioners’ textbooks.

44.A ready summary has been given by the court of final appeal in Oriental Daily Publisher Ltd and Another v Ming Pao Holdings Ltd and Others (2012) 15 HKCFAR 299 from which I will quote:

“35. It is well established that an award of general damages in libel is compensatory in nature. As Sir Thomas Bingham MR pointed out in John v MGN Ltd, [[1997] QB 586 at 607] such awards have a threefold function:

‘The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused.’

36. Such damages are said to be ‘at large’ since the exercise of assessment necessarily involves a substantial degree of subjectivity. As Lord Hailsham of St Marylebone LC stated in Broome v Cassell Co Ltd (No 1) [[1972] AC 1027 at 1071]:

‘What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being “at large.”’

37. It follows, as Lord Reid pointed out in the same case [at 1085], that:

‘Any one person trying to fix a sum as compensation will probably find in his mind a wide bracket within which any sum could be regarded by him as not unreasonable - and different people will come to different conclusions.’

That was echoed in this Court’s judgment in Blakeney-Williams v Cathay Pacific Airways Limited[(2012) 15 HKCFAR 261 at para 93], which is to be handed down on the same day as the present judgment and which I have had the benefit of reading in draft.

38. In performing the assessment the Court must take into account all the circumstances of the case relevant to determining what would be an appropriate compensatory sum. In Lord Herschell’s words:

‘The damages cannot be measured by any standard known to the law; they must be determined by a consideration of all the circumstances of the case, viewed in the light of the law applicable to them.’ [Bray v Ford [1896] AC 44 at 53]

39. It obviously follows that it is not possible to list exhaustively all the circumstances that may bear on the assessment. However, certain factors have been identified as important. Thus, in John v MGN Ltd [ [1997] QB 586 at 607], Sir Thomas Bingham MR stated:

‘In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff’s feelings by the defendant’s conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way.’

40. And in Jones v Pollard[[1997] EMLR 233 at 243], Hirst LJ listed as relevant, factors including the following:

‘1. The objective features of the libel itself, such as its gravity, its prominence, the circulation of the medium in which it was published, and any repetition.

2. The subjective effect on the plaintiff’s feelings (usually categorized as aggravating features) not only from the publication itself, but also from the defendant’s conduct thereafter both up to and including the trial itself.

3. Matters tending to mitigate damages, such as the publication of an apology.

4. Matters tending to reduce damages, e.g. evidence of the plaintiff’s bad reputation, or evidence given at the trial which the jury are entitled to take into account ...

5. Special damages.

6. Vindication of the plaintiff’s reputation past and future.’

41. Pausing here, it seems clear that unless some principle of law operates to exclude it, the poor credibility of an accuser ought to be regarded as relevant to assessing general damages. Defamatory accusations originating from someone whose credibility is doubted is likely, as a matter of commonsense, to do less harm to the plaintiff’s reputation, cause less distress and require less to vindicate his reputation, than the same accusations originating from an authoritative and credible source.  Unless excluded by some legal principle or as a matter of fact, low credence is a potentially important reason for a lower award.”

(neither exemplary nor aggravated damages are claimed in this action.  It is therefore unnecessary to consider those heads of claim)

45.The above have been borne in mind when quantum of loss is assessed in this action.

(1) General damages

46.Two aspects require consideration under this head of claim:

(a) loss of reputation;

(b) mental depression.

47.The plaintiff seeks a total of $1.5 million for both aspects.  The amount is derived from that awarded in Chu Siu Kuk Yuen v Apple Daily Ltd and Others [2002] 1 HKLRD 1 (an award of $3 million for loss of reputation, stress-induced depression and pre-term delivery of the plaintiff’s child).

48.There are however a number of important differences between Chu and this action:

(1) the plaintiff in Chu has been expressly named and so she would be identifiable by the whole readership of the newspaper.  The extent of publication here is accepted by both parties to be a lot more limited.  I consider the extent of publication to be more akin to defamation in cases involving incorporated owners, club members, local electorates and the like;

(2) in Chu, in addition to accusing her of having committed a crime, her integrity as a professional (a practising solicitor) was directly attacked.  Although the plaintiff here is not a professional, the nature of the defamation is also serious.  Not only did it allege crimes having been committed, it also led the readers to imagine the plaintiff to be a greedy person who would take even items of small value;

(3) in Chu, besides suffering from mental depression, the stress induced by the defamation has caused difficulties to her pregnancy.  Although the plaintiff here has also been diagnosed by the joint psychiatric expert to be suffering from mental depression (“mild symptoms of major depressive disorder”), generally the plaintiff’s medical condition after treatment appeared to be not as serious as the plaintiff in Chu.

49.The following awards for general damages have been made in the cases below (in chronological order) (which involved relatively limited publication of the defamation):

(a) Lee Ching v Lau May Ming [2007] 3 HKLRD 623 ($200,000 for libelous letter sent to members of non-government organization; no apology and insistence on justification plea);

(b) Wong Ying Chow v Wong Hang Yin DCCJ 4078/2005 (20 May 2010) ($100,000 for slander uttered during a meeting; aggravated by conduct at trial);

(c) Au Yee Ming Ivan v Ng Fei Tip DCCJ 4595/2008 (25 August 2010) ($15,000 for slander uttered at incorporated owners’ meeting);

(d) 周啟邦律師事務所(事務所) 訴何秀武 HCA 2360/2007 (4 October 2010) ($100,000 for libelous letter distributed at residential building against district councillor; inadequate apology);

(e) Kwan Siu Wa, Becky v Marla Susilo DCCJ 5396/2007 (17 May 2011) ($100,000 for 2 libelous e-mails against trade union chairperson);

(f) Lo Sam Shing v Li Fong HCA 1803/2011 (14 March 2014) ($200,000 for an election-related libelous letter sent to 25 recipients);

(g) Choi Yuet Wing v Tang Sai Cheong[2014] 5 HKLRD 260 ($2,000 for e-mail sent to 3 village elders against village representative; no apology);

(h) 東廬大樓業主立案法團對徐偉業 DCCJ 3333/2011 (4 August 2014) ($400,000 for the claim (reduced to $200,000 on appeal (CACV 27/2015)) and $450,000 for the cross-claim for cross libel contained in various banners, notices and open letters arising out of incorporated owners’ dispute).

50.Finally, besides the Chu decision, there was another litigation the plaintiff of which also suffered mental depression as a result.  In John Raymond Luciw v Wolfgang Derler and Others HCA 2148/2011 (29 July 2013), libelous material was published through a well-known social network on the internet. There was a serious allegation of the plaintiff being a paedophile.  The plaintiff was awarded $1 million by way of general damages, the court being of the view:

“… an allegation of paedophilia is an allegation of criminal behaviour that is of the most reprehensible nature and behaviour that is viewed with total disgust and disdain by the community. …

… The direct linking of the allegations to [the plaintiff’s] employment was intended to, and must have, damaged not only his personal reputation but also his professional reputation. …

… [the plaintiff] has suffered mental stress, but I have to say that the evidence does not establish that stress to the level that was established in Chu Sik Kuk Yuen.” (para 32 to 34 thereof).

51.As stated in para 48(3) above, I am also of the view the plaintiff’s mental depression may also not be as serious as that of the plaintiff in the Chu decision.  The extent of the publication is also a lot more limited than that in either Chu or Luciw.  There is no independent evidence to verify (or contradict) the plaintiff’s testimony to the effect the people who knew the subject article referred to her would be about a thousand.  I am inclined to think that those readers would be more like a few hundred.

52.On the other hand, the nature of the libel is equally serious, alleging the plaintiff of being dishonest and in abuse of the trust reposed in her by the employer.

53.The circumstances under which, and the manner in which, the subject article was written, hint at a premeditated design.  It was not a spontaneous response, or momentary loss of restraint, because of personal grudges (as in some of the above cases).  The writer and editor must have been professionally trained (or at least experienced) in journalism, and can be expected to know the proper balance which should be struck between the freedom of press and the protection of citizens’ reputation.  The way in which the subject article was structured and laid out has been discussed in para 11 to 13 and 27 to 34 above.

54.The defendants contend that quantum ought to be reduced because the plaintiff has been shown to be unreliable and/or to have exaggerated her claim.  Criticisms levied in this regard include matters like:

(1) different and/or inconsistent accounts have been given as to whether she has interest in, or worked at, the dessert shops;

(2) whether she told Mdm Ho she was, and her colleagues were, investigated by the police;

(3) she wavered between whether she was followed by the defendants, or other media;

(4) some of the expressions she used must have been exaggerated (phrases like “the whole world knew”).

55.I disagree with the above contentions.  First, from an overall viewpoint, I bear in mind the plaintiff has been suffering from mental depression and this can have an impact on her memory and demeanour as a witness.  The defects in her testimony appear to be more a result of inarticulation than out right unreliability or untruthfulness.

56.More specifically:

(a) as the defendants accept in their closing submissions (para 82 thereof), para 54(3) above is immaterial to this action;

(b) as for para 54(1) above, (as has been stated in para 5 and 24 above) the important point is the plaintiff’s “reputation” of being the lady owner of the dessert shops;

(c) as for para 54(2) above, that was probably caused by the plaintiff’s difficulties to recall details;

(d) as for para 54(4) above, such kind of expression is common among individuals with a background similar to the plaintiff’s.

57.Taking the above into account, the proper award under this head of claim should be $700,000.

(2) Past loss: expenses and earnings

58.The claims falling under this head of claim are:

(1) salary loss by reason of the plaintiff’s special leave ($127,140);

(2) medical expenses ($28,540).

59.In relation to para 58(1) above, the main thrust of the defendants’ attack is that there was a failure to mitigate the loss by taking sick leave instead.

60.The legal principles regarding mitigation of loss can be summarized as follows:

(a) the law requires a victim to take all reasonable steps to mitigate the loss suffered: McGregor on Damages (2014) 19^th Ed, para 9-014;

(b) whether reasonable action has been taken is a question of fact not law: McGregor, para 9-016;

(c) although often called “a duty to mitigate” for convenience, the expression is somewhat loose because there is no actionable “duty” owed to anyone: McGregor, para 9-017;

(d) the onus of proof rests with the wrongdoer to show that the victim has failed to act reasonably: McGregor, para 9-019;

(e) in assessing reasonableness for this purpose, the victim can act with the wrongdoer’s as well as his own interest in mind: McGregor, para 9-076.

(see also McGregor, para 9-078 to 9-091)

61.When cross-examined why the plaintiff did not apply for sick leave, but special leave instead, the plaintiff explained in essence that she felt so unwell she wanted to stay away from work; she also said in effect she would need doctor’s certificate to obtain sick leave.  She also testified to the effect she did not want anyone to accuse her of anything.

62.As a matter of history, the plaintiff began to apply for special leave since about July 2008 (about 2 months after the subject article) (initially from time to time). At the end of 2008, she applied for a one-year leave.  She first consulted a psychiatrist in September or October 2008 (who diagnosed her to be suffering from post-traumatic stress disorder with features of severe depression).

63.In these circumstances, I agree with the defendants it was unreasonable for the plaintiff not to apply for sick leave from October 2008 onwards.  For this reason, the claim for salary loss is disallowed.

64.Of the $28,540 claimed as medical expenses, the defendants argue that further reductions are required:

(1) $2,000 for photocopying 4 pages of records is excessive;

(2) $4,500 for preparing a medical report which has not been used for trial;

(3) $800 medication expenses because the plaintiff misplaced her medicine.

The plaintiff has not been able to explain why the above items are reasonably claimable.

65.Here again I agree with the defendants.  This claim is thus reduced to $21,240.

(3) Future loss

66.Loss of earning capacity (claimed at $100,000) falls under this head of claim.

67.The plaintiff was born in May 1961 and thus is aged 54 at the time of trial.

68.Relative to the nature of her work and her working age in the civil service, a relatively small sum of $20,000 is more appropriate for this head of claim.

CONCLUSION ON QUANTUM OF LOSS

69.Monetary judgment is entered against the defendants as follows:

(a) $700,000 by way of general damages;

(b) $21,240 for medical expenses;

(c) $20,000 for loss of earning capacity.

70.The parties are to attempt to agree on the periods and rates for interest on the above, and, failing agreement, to lodge with court and exchange written submissions thereon not more than 21 days from today.

OTHER MATTERS

71.A few words have to be spent on the defendants’ criticism of the joint expert report and the findings therein.

72.The point they make here is that the causation between the plaintiff’s mental depression and the publication of the libel has not been established.

73.The defendants make play of the following:

(1) the joint expert not having distinguished between the mental injuries caused by the subject article, as opposed to such injuries caused by “some other means”;

(2) the failure of the joint expert to clarify the meaning of “the incident” in his report.  Here the defendants try to draw a distinction between the publication of the subject article, and the events arising out of, but subsequent to, its publication (such as the media following the plaintiff, the plaintiff (and her colleagues) being interviewed by her superior about the alleged theft).

74.I find the above to be disingenuous, and is conduct which almost justifies an increase of the damages to be awarded: Gatley, para 9.5 text to, and, n 75.

75.The tort of defamation aims to provide legal protection of reputation: Gatley, para 1.1 and 1.2.  Reputation is very much a matter of perception of one person by the others.  The injuries to the victim of defamation are again related to such perception (see, for example, the working definition of “defamatory imputation”: Gatley, para 2.1 and 2.9 to 2.26, and para 19 above).  It is thus inherent in such an area of law the responses of other people directly (or reasonably foreseeable as being) brought about by the publication of such wrongful statements are part of the wrong to which the law should have regard.

76.Viewed in such light, it defeats common sense (let alone the basic legal concept of this tort) to speak of the so-called subsequent events as if they were never part of the tort of defamation.  This is probably also the reason why the joint expert did not specifically draw the distinction now contended for by the defendants.  In any event, it is clear the words “the event” in the joint report was intended to also cover the publication of the subject article.

77.I should also mention that when the plaintiff’s application for adjournment (to wait for the last witness to return from overseas) was refused, the plaintiff stubbornly refused to close her case without valid reason (a ruling has to be made to that effect).  This is conduct which could have obstructed the trial, and appeared to offend the duty imposed on lawyers by RHC Ord 1A r 3 (it is thus conduct which apparently can be regarded as professionally unbecoming).

78.Lastly, the parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the judgment and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

COSTS ORDER NISI

79.There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this action (including any costs earlier reserved) should be paid by the defendants to the plaintiff to be taxed if not agreed.

80.Finally, the plaintiff asks for a certificate for counsel’s attendance at the case management conference hearing before the registrar on 16 July 2014.  This does not appear to be opposed by the defendants.  The certificate sought is accordingly granted.

Mr Bernard Yuen, instructed by Johnny Chu & Co, for the plaintiff

Mr Raymond Ho, instructed by Peter Cheung & Co, for the defendants