Pui Kwan Kay v. Ming Pao Holdings Ltd and Others
Read the full judgment text of CACV 201/2013 on BabelCite. This Court of Appeal judgment was delivered on 17 November 2015.
1. On 31 March 2009, there was a soccer match in the First Division League in Hong Kong between Tuen Mun Progoal [“Progoal”] and Happy Valley Athletic Association [“Happy Valley”]. In the first half, Progoal led 1:0. Then, in the second half, Happy Valley equalised at 14 minutes into the second half. Soon after that, a player of Progoal got a red-card and he was sent off. After that, several players of Progoal got yellow cards and the coach decided to substitute three players in the game. Du
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CACV 201/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 201 OF 2013 (ON APPEAL FROM HCA NO. 854 OF 2010) ________________________
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________________ JUDGMENT Hon Lam VP (giving the Judgment of the Court): A. Facts and background 1.On 31 March 2009, there was a soccer match in the First Division League in Hong Kong between Tuen Mun Progoal [“Progoal”] and Happy Valley Athletic Association [“Happy Valley”]. In the first half, Progoal led 1:0. Then, in the second half, Happy Valley equalised at 14 minutes into the second half. Soon after that, a player of Progoal got a red-card and he was sent off. After that, several players of Progoal got yellow cards and the coach decided to substitute three players in the game. During the last 7 minutes of the game, Progoal conceded 4 further goals and the end result was 1:5. 2.Because of an outburst by a player of Progoal during the game after losing the second goal and the statement by three other players of Progoal in their blogs in the internet, there were wide-spread concerns in the community (with discussions over internet as well as the media) on suspected match-fixing. In the blog of one of those players, the following was said:
3.It must be said immediately that this case is not about whether there had been match-fixing at that game. As far as the materials before us reveal, there is nothing to suggest that any charge had been laid against anybody after investigations by the Independent Commission Against Corruption [“ICAC”] in relation to this game. 4.However, in the midst of those concerns, the Hong Kong Football Association [“HKFA”], the organiser of league games in Hong Kong, also investigated into the matter. The Plaintiff in this case was the Vice-chairman of HKFA. HKFA held a board meeting on 6 April. The board decided to refer the matter to the ICAC. After the meeting, there was a press conference at which the Plaintiff answered some questions from the reporters. At that stage, the reporters were interested in finding out the background of Progoal and some questions were directed at the Plaintiff on the identity of the “班主” (which according to the Plaintiff’s own evidence[1] can be understood as the boss in English, though he also said there was no definite meaning of that expression) of Progoal and its source of finance. Such questions were directed towards the Plaintiff because he had been the owner of the HKFA membership of the predecessor of Progoal, Shek Ki Mei Sport Association [“SKMSA”]. He explained at the press conference that he only played the role of an intermediary and he himself did not take up any office at SKMSA or Progoal. 5.A reporter of the 2nd Defendant was present at the press conference. There was a report on 7 April 2009 in Ming Pao, the newspaper published by the 2nd Defendant, on this press conference. According to that report, the Plaintiff told the reporters that he did not know who was the “班主” of Progoal. He also said the financial support for Progoal came from various sources and he believed that those were proper sources. He did not disclose the identities of those financial backers. 6.Other newspapers and media also ran reports about this press conference and the response of the Plaintiff to these questions. At the trial and before us, references were made to reports in Apple Daily, Oriental Daily, Sun Daily, Sing Tao Daily, Tai Kung Pao, Wen Wei Pao, Metro Daily and AM 730. 7.According to the reports in those other newspapers, the Plaintiff gave some information about the history leading to Progoal using the membership of SKMSA and revealed that a Mr Yam and a Mr Fan were the organisers of Progoal. 8.Subsequently, the Plaintiff was interviewed by Cable TV and Sing Tao Daily. He gave more information about the sponsors of Progoal including those from Shenzhen and Yam’s efforts in procuring funds from a mainland beer company. He also told Sing Tao about his relationship with Yam had Fan and how they came together to organize Progoal with his endorsement. This information was reported in Sing Tao Daily on 8 and 9 April. 9.On 9 April, Progoal issued a report of its internal investigation of the match and concluded that there was insufficient material to lead to a finding of match-fixing. The players (whose outburst at the game and postings on their blogs had fanned the public debate and concern) put forward some explanations and the general picture in the internal investigation report was that they disavowed allegations of match-fixing. The HKFA accepted that report. 10.A reporter of Ming Mao contacted the Plaintiff by phone on 9 April and enquired with him about why on 6 April he withheld the information on Progoal which he gave in the interview by Sing Tao Daily reported on 9 April. The Plaintiff answered, according to the special verdict of the jury, “一時記唔起” against a noisy background. 11.On 10 April, Ming Pao had 2 articles concerning the matter. There was a report at p.A4 under the headline “普高球員紛改口否認假波 內部調查報告 張天德周偉明突反口”. In that article, there was a short reference to the Plaintiff’s response to its reporter on 9 April mentioned at paragraph 10 above. 12.Another article is an editorial published under the headline “問題球賽疑點重重蒙混過關足運必死” [“the Article”]. At the editorial, there was a reference to the report at A4 as related news report. For ease of reference, we append the Article to this judgment. B. Proceedings below 13.In the present action, the Plaintiff claimed that the Article was defamatory of him and he sued the Defendants for damages and other relief. In the Statement of Claim, the Plaintiff referred at paragraph 5 to these parts of the Article in his particulars of the defamatory words: “ PARTICULARS OF THE WORDS
14.At paragraph 7, the Plaintiff pleaded the following as the meanings of those words:
15.The Defendants pleaded alternative meanings of the words in their Defence and denied that they were defamatory. The alternative meanings were pleaded in paragraph 15 (in the context of the defence of justification) and paragraph 21(in the context of the defence of fair comment). In this appeal, Mr Wong SC (appearing together with Mr Law for the Defendants in this appeal) referred to these alternative meanings as the Lucas Box meanings. We shall adopt the same nomenclature. 16.The Defendants also ran the defence of justification and fair comment. The Defendants also relied on what has come to be known as the Reynolds defence[2]. The case was tried before Au J [“the Judge”] and a jury. In accordance with the practice laid down in the case law, the meanings of the words and whether they are defamatory, the defences of justification and fair comment were decided by the jury. In respect of the Reynolds defence, with the agreement of the parties, several questions of fact were put to the jury for their determination by way of special verdicts. In light of those special verdicts, it was agreed that the Judge should decide the ultimate question as to whether the Reynolds defence is established which involved an overall assessment of all relevant factors in deciding whether the Defendants met the standard of responsible journalism in the publication of the Article. 17.After trial, the jury found for the Plaintiff in respect of two of the pleaded meanings of the words, viz meanings (1) and (2) set out at paragraph 14 above. The jury rejected the other meanings. For the purpose of this appeal, it should particularly be noted that the jury rejected meaning (3). 18.The Judge directed the jury that if they found the meanings of the words to be more serious than the Lucas Box meanings, the defences of justification and fair comment must necessarily fail. Though the jury did not have to give reasons for their verdicts, it can readily be seen that meanings (1) and (2) as found by the jury are more serious than the Lucas Box meanings in that under meaning (1) the Plaintiff was alleged to have hidden his knowledge and connection deliberately. There was no allegation of intentional hiding of information and no allegation of the Plaintiff hiding any connection with Progoal in the Lucas Box meanings. The verdict (5:2) was the same in respect of the findings on the meanings of the words and the rejection of these defences. 19.The jury reached the following special verdicts in the context of the Reynolds defence: “ Special Verdict Questions
20.With those special verdicts, counsel advanced further submissions before the Judge on the Reynolds defence. By a judgment handed down on 6 September 2013, the Judge found against the Defendants on the Reynolds defence though he accepted that the matters discussed in the Article were matters of public interest. The Judge recorded at paragraph 33 that it was indeed common ground that the subject matter of the Article was a matter of public concern, satisfying the first limb of the Reynolds defence. 21.The Judge therefore ordered judgment be entered in favour of the Plaintiff and that the Defendants should pay damages to the Plaintiff in the sum of $500,000 (as assessed by the jury). C. The approach of the Court of Appeal 22.This is the appeal by the Defendants against that judgment. All the grounds in the Amended Notice of Appeal focused on the Judge’s conclusion on the Reynolds defence. There is no challenge to the general verdict of the jury. The Plaintiff filed a Respondent’s Notice challenging the Judge’s conclusion on public interest. 23.In light of the submissions of counsel, before we consider the submissions of Mr Wong on the Reynolds defence, we have to address the submission of Mr Pow SC (appearing together with Mr Dawes SC for the Plaintiff) on the proper approach that this court should adopt in an appeal against the Judge’s determination of the Reynolds defence. 24.In Galloway v Telegraph Group Ltd [2006] EMLR 221 at paragraph 68, Sir Anthony Clark MR observed that in assessing a Reynolds defence, the balance was a matter for the judge and the court of appeal would not interfere unless the judge erred in principle or reached a conclusion which was plainly wrong. That approach was followed in the subsequent case of Prince Radu of Hohenzollern v Houston [2009] EMLR 13 at paragraph 20. 25.Yet, in a later decision, Lord Neuberger MR expressed disagreement with that approach in Flood v Times Newspapers Ltd [2011] 1 WLR 153 at paragraphs 46 to 49. His Lordship was of the view that the determination of the Reynolds defence did not involve the exercise of discretion. He continued at paragraph 49:
26.When Flood v Times Newspapers Ltd [2012] 2 AC 273 came before the Supreme Court, in the leading judgment of Lord Phillips, this question was discussed. At paragraph 104, after comparing these differences in views, said these:
27.His Lordship then referred to cases decided in other contexts where appellate courts had applied a similar approach to Galloway when there is room for a legitimate difference of judicial opinion as to what the answer should be and where it will be impossible to say that one view is demonstrably wrong and the other demonstrably right. At paragraph 105, Lord Phillips expressed this view, “Context is all important. There is a spectrum …” and referred to the guidance of Hoffmann LJ in In re Grayan Building Services Ltd [1995] Ch 241 at 254:
28.Because the Supreme Court did not hear oral submissions on where the Reynolds privilege came within this spectrum, the Supreme Court declined to lay down general principle on the proper appellate approach in that case, see Lord Phillips at paragraph 106; Lord Mance at paragraph 182; Lord Clarke at paragraph 186; Lord Dyson at paragraph 203. 29.Mr Pow referred us to the decision of the Privy Council in an appeal from Dominica in Pinard-Byrne v Lennox Linton [2015] UKPC 41. In that judgment, delivered on 12 October 2015, a few days before this appeal was heard, Lord Clarke (delivering the opinion of the Board) held that the court of appeal in that case should not interfere with the judge’s conclusion unless he reaches a conclusion which is wrong in principle or which can otherwise be seen to be wrong. Lord Clarke also referred to the advantage the judge had over the court of appeal and “in a case where there are many factors in play, considerable respect must be paid to the balance struck by the trial judge”[4]. 30.However, the basis on which the court of appeal reversed the trial judge’s decision on the Reynolds defence was pinpointed by the Privy Council at paragraph 26: that the judge had not carried out a thorough analysis of the evidence in coming to the conclusion that the defendant had not made any inquiries of the plaintiff whilst the defendant had carried on investigation on the underlying project. The Privy Council held that the court of appeal was wrong in focusing on the investigation on the underlying project when the judge was entitled to take account of the lack of evidence of investigation on the plaintiff’s wrongdoing alleged in the words complained of. 31.There was no discussion in the judgment of the Privy Council of the divergence of views between Lord Neuberger in Flood and Sir Anthony Clarke MR (as Lord Clarke then was) in Galloway. Given the issue raised in Pinard-Byrne v Lennox Linton, supra, there was no need to go into that point in that case. Thus, though we have no reason to disagree with what was said at paragraph 37 in Pinard-Byrne v Lennox Linton, supra, it may not be a comprehensive statement of the correct appellate approach. 32.As it shall become clear from the discussion below, in the present appeal we are able to determine on the outcome of the appeal without going into the general question whether in the absence of errors in principle or other errors vitiating the determination like taking irrelevant consideration into account or failing to take relevant consideration into account, the court of appeal should only interfere with a judge’s determination of the Reynolds defence when it is plainly wrong. However, we are in respectful agreement with Lord Phillips that the determination is not an exercise of discretion and whether an appellate court should interfere in a particular case must depend on the context. In all cases, proper regard must be placed on the advantage of the judge, not only in respect of the assessment of the evidence but also in respect of the weight he attached to different factors in the particular context of the publication of the words in question. In most cases, these observations should be sufficient to guide the appellate court in deciding the outcome of the appeal. D. The public interest defence 33.Since the House of Lords decision in 2001, the Reynolds defence has been applied in many subsequent cases and a substantial body of jurisprudence has been built up. Notwithstanding its genesis from the traditional defence of qualified privilege, it is now recognized that it is more accurate to describe it as a defence of public interest, see Flood, supra, paragraphs 38, 42, 113, 122; Pinard-Byrne v Lennox Linton, supra, paragraph 19. 34.In Hong Kong, as far as we are aware, this defence was first discussed in an appellate judgment in Blakeney-Williams v Cathay Pacific Airways Ltd [2011] 1 HKLRD 901 in which the important English authorities were considered by this court. Though that case went to the Court of Final Appeal[5], no issue was raised in respect of the Reynolds defence and the Court of Final Appeal therefore did not find it necessary to discuss the same in its judgment. 35.Since then, the Supreme Court had decided Flood and in England, the defence was replaced by a statutory defence under section 4 of the Defamation Act 2013. 36.We do not have similar statutory development in Hong Kong. With the benefit of the judgment in Flood, we do not find it necessary to re-state what had been said in Blakeney-Williams v Cathay Pacific Airways Ltd, supra. Instead, we would only highlight several points emerging from the corpus of case law which are of particular relevance in the present appeal. 37.First, the raison d’ être of this defence is the need to strike a balance between the freedom of speech (which, in Hong Kong, is constitutionally entrenched by Article 27 of the Basic Law and the rights under the Hong Kong Bill of Rights art 16) on the one hand and the right to protection from unlawful attacks on reputation (protected by the Hong Kong Bill of Rights art 14) on the other. This rationale was set out succinctly by Lord Nicholls in Reynolds v Times Newspaper Ltd, supra at p.204H:
38.In Loutchansky v Times Newspapers Ltd [2002] QB 783, at paragraph 36 the English Court of Appeal referred to relevant interest and duty:
39.This was quoted by Lord Phillips in Flood at paragraph 38 after stating that the Reynolds privilege is a different jurisprudential creature from the traditional form of qualified privilege. 40.Second, in the application of the public interest defence, the courts must give due weight to the editorial judgments of journalists given their role in the overall equation of public interest. Lord Nicholls referred to the vital functions of the press in Reynolds. This proposition was further explained in the judgment of the Supreme Court in Flood, in particular in the judgment of Lord Mance[6] in which there was a comprehensive review of the relevant English as well as European case law. At paragraph 137, His Lordship summarised the position in these words:
41.On the role of press, Lord Mance said at paragraph 138:
42.And then at paragraph 139:
43.At paragraphs 131 and 132, Lord Mance also highlighted the need to look at the position in the round and some latitude should be given to the content and presentation of news items of general public interest. 44.We accept that it would not be in public interest to have a trial by the press, but as Lord Dyson opined at paragraphs 195 and 196 in Flood, there is the necessary safeguard in the requirement of responsible journalism. Reynolds defence would not be available where the judgment of an editor or journalist was made in a “casual, cavalier, slipshod or careless manner”. Lord Mance also said at paragraph 177:
45.Third, though the different elements in the application of the Reynolds defence had been expressed in the past as different limbs in the test[7], in the recent judgments the courts have come to recognize that ultimately the question is whether it is in the public interest to publish the statement notwithstanding its defamatory nature, see Lord Brown at paragraph 113 and Lord Mance at paragraphs123 to 127 in Flood. See also Pinard-Byrne v Lennox Linton, supra, paragraph 20. The logic of the subsuming of different limbs into one single overall question was explained by Lord Mance at paragraph 123:
46.Whilst in most cases the overall results would probably be the same, the practical advantage of this approach is that it places greater emphasis on the overall balancing of the relevant factors with particular reference to the facts and circumstances of the case. Lord Mance identified the question that the courts need to decide and the approach to be adopted at paragraphs 125 and 127:
47.Thus, the effort taken in verification is only one factor in the overall assessment and the weight to be attached to it depends on the other factors. This serves to remind us that Lord Nicholls’ list of ten factors should not be applied rigidly as if they are hurdles to be crossed and the list is not exhaustive. Lord Brown put forward an additional factor in Flood which, as discussed below, is also relevant in the present case: the effect of an article in encouraging speedy and thorough investigation in a matter of public importance. 48.Fourth, on the meanings of an article, it was held in Bonnick v Morris [2003] 1 AC 300 that in the context of Reynolds defence, the single-meaning rule is not applicable. In Flood, Lord Phillips reiterated that a responsible journalist should have regard to the full range of meanings that a reasonable reader might attribute to it in exercising his judgment on publication, see paragraph 51. This might be going further than what Lord Nicholls had said at paragraphs 24 and 25 in Bonnick v Morris, supra[8]. However we do not see any reason why in principle Lord Phillips’ approach should not be adopted so long as the obviousness of a meaning, the failure to verify that particular meaning and the reason for such failure are all taken into account in the overall assessment. E. The subject matter of the Article and public importance 49.Turning to the application of the law to the present case and the submissions of counsel in this appeal, we shall first address the question relating to the public importance of the subject matter discussed in the Article. As mentioned, it was common ground at the court below that the subject matter was of public concern at the time when the Article was published. On appeal, Mr Pow contended that the fact that the material was of public interest does not allow a newspaper to drag in damaging allegations which serve no public purpose. He relied on Jameel (Mohammed) v Wall Street Journal Europe Sprl [2007] 1 AC 359 paragraph 51 and submitted that the inclusion of the defamatory statement had to be shown to be justifiable. In that paragraph, Lord Hoffmann had this to say:
50.On the facts of the present case, Mr Pow submitted that as the allegation of “前言不對後語” was a personal opinion of the author of the Article instead of an editorial committee of Ming Pao (“社評會”) and it was a conclusion drawn without proper verification, given the imputation of this statement against the Plaintiff targeting him personally, it had no real contribution to the public interest to include it in the Article. 51.It is not clear to us whether this argument was advanced before the Judge. There was no reference to it in the judgment. In any event, with great respect, we cannot accept this submission. In Jameel, supra, Baroness Hale formulated the relevant test at paragraph 147 as follows:
Such formulation was specifically endorsed by Lord Phillips in Flood at paragraph 42 and Lord Mance at paragraph 126. 52.The subject matter of the Article revolved around the proper investigation into the game of 31 March 2009 and one of the themes was the inadequacy in the investigation by the HKFA and its poor handling in the midst of public concern. Given the unique role of HKFA in the development of professional football in Hong Kong and its management of the league games, these were plainly matters of legitimate public interest. As Mr Wong submitted, the Plaintiff was questioned by the press in the whole episode in his capacity as the vice-chairman of HKFA and it involved the Plaintiff’s discharge of his duty in a public capacity rather than matters of his private affairs. Against such light, we are of the firm view that the inclusion of the reference to the Plaintiff and his responses to the questions from the media at different stages was part of the story. 53.Further, reading the Article as a whole, its primary message was an appeal to the ICAC to conduct a thorough investigation over the matter, thus the sub-headline “3球員前言不對後語 廉署應查個水落石出”. This aim must be taken into account in assessing whether the references to the responses of the Plaintiff at different stages should legitimately be part of the story. Naturally, it could be expected that a journalist would wish to explain why he regarded the inquiry by the HKFA as inadequate in the Article. And one of the reasons why the inquiry by the HKFA could not be regarded as adequate was the Plaintiff’s different responses at different stages which, in the view of the author of the Article, tarnished public confidence in those in charge of the inquiry by the HKFA. 54.As regards the characterisation to the Plaintiff’s responses as indicative of “與普高保持距離，其間情況耐人尋味”, “甚為蹺蹊” or even “前言不對後語”, subject to the question of verification which we shall discuss below, in our view they were within the realm of editorial judgment of the author of the Article to which the observations of Lord Hoffmann in Jameel and Lord Mance in Flood on respect for such judgment are applicable. 55.We shall have to discuss further on the meanings of the words as found by the jury. At this juncture, we can simply say that in the context of this Article against the prevailing circumstances when it was published, the meanings as found by the jury are legitimately part of the story. 56.As discussed earlier, the latest authorities emphasised that an overall assessment should be made in reaching the conclusion on the public interest defence. We shall now turn to the crucial questions in this appeal: whether the Judge erred in his application of the law in the present context. In so doing, we bear in mind what we said at paragraph 32 above on the approach that this court should adopt. F. The meaning of the words 57.The meaning of the Article is a relevant consideration in the overall assessment of the public interest defence. In Lord Nicholl’s non-exhaustive list of matters set out at Reynold, supra p.205, the first item is the seriousness of the allegation. His Lordship explained:
58.Mr Wong submitted that the Judge erred in paragraph 45 of his judgment when he said that the Article “suggested and suspected Mr Pui’s involvement in the match-fixing of the Match.” 59.On the other hand, Mr Pow submitted that the Judge correctly identified the stings of the Article and it was a summation of the finding of the defamatory meanings of the Article by the jury. Mr Pow derived from the jury’s verdict on defamatory meanings four stings:
60.With respect to the Judge, he must have overlooked the jury’s specific rejection of meaning (3) as pleaded by the Plaintiff. At paragraph 7(3) of the Statement of Claim, it was alleged that one of the defamatory meanings of the Article was that “there are reasonable grounds to suspect the Plaintiff of being involved in the illegal activities of match-fixing and ICAC should launch an investigation against the Plaintiff”. The jury was specifically asked to consider all the pleaded meanings in paragraph 7 and in the end they only found the meanings in paragraphs 7(1) and (2) established. Thus, the jury did not find the Article to carry any imputation against the Plaintiff in respect of his involvement in match-fixing. 61.Though the single meaning rule is not applicable in the context of the Reynold defence (the Bonnick v Morris approach), the Judge did not advert to that at paragraph 45 in his judgment when he considered the seriousness of the allegations. In light of the specific rejection of paragraph 7(3) meaning by the jury, if the Judge were to explore a similar meaning by way of an alternative meaning within the full range of meanings that a reasonable reader might attribute to the Article, we expect the Judge would have set out his reasons for coming to that view in his judgment. He had not done so. Actually, he stated quite specifically that he was referring to the defamatory statements as found by the jury in the preceding sentence in the same paragraph. 62.We do not accept Mr Pow’s attempt to account for the Judge’s view on the seriousness of the allegations. We agree with Mr Wong that it is not the right approach to re-cast the findings of the jury on meanings into four stings as if they were disconnected components. This can be illustrated by reference to the fourth sting. Read in isolation and given that it was in the context of the Article, it may well lead to an impression that the Plaintiff acted suspiciously, not only in respect of the differences in his responses on different dates, but also generally in respect of all the suspicious activities concerning the game. But this is not the finding of the jury. 63.We reject Mr Pow’s argument that the Judge’s characterization of the allegations was summation of the findings by the jury. 64.Counsel did not address us on the extent to which a judge is bound by the findings of the jury on meanings in reaching his determination on the public interest defence and the inter-relationship between the findings of the jury on meanings and the Bonnick v Morris approach. The case was simply argued before us on the basis that the Judge was either correct or incorrect in applying the public interest defence to the meanings as found by the jury. We shall determine this appeal accordingly. 65.In our judgment, the Judge had applied the public interest defence by reference to a meaning not attributable to the Article by the jury and it is an error which tainted his determination. On this ground alone, this court must set aside his determination and consider the public interest defence afresh. It will be seen shortly, there are other grounds too. 66.As we said, Mr Pow did not submit before us that there was an alternative meaning for the purpose of the Bonnick v Morris approach that this court should consider. We therefore confine ourselves to the defamatory meanings as found by the jury in assessing the seriousness of the allegations in the Article. 67.In the overall assessment in the public interest defence, the defamatory meanings must be considered in the context of the Article as a whole when the court weighs the seriousness of the allegations. Further, on the facts of the present case, we are of the view that one must have regard to the undisputed fact that the Plaintiff did give more information concerning his knowledge and connection with Progoal at later stages. 68.Mr Pow however submitted that the allegations were still serious. That submission was advanced against the backdrop of what Mr Pow regarded as findings by the jury that the Plaintiff did not give contradictory versions about his knowledge of and connection with Progoal. 69.It is necessary to consider the verdict of the jury more carefully. As we said, there cannot be any dispute (and Mr Pow properly accepted) that the Plaintiff did give more information at different stages. He was specifically asked by Mr Ku, the reporter of Ming Pao, about such differences at the phone conversation on 9 April and his answer was that he had forgotten momentarily. Whether the answers were contradictory versions and whether the Plaintiff behaved suspiciously are essentially matters of opinion. The jury was directed to reject the defences of justification and fair comments if they considered the Lucas Box meanings to be less serious (as they obviously are). The jury’s verdicts were non-speaking (as they did not need to give reasons for their verdicts). We do not think it is possible for this court to decipher why the jury considered the meanings they found to be defamatory. In light of the direction on justification and fair comments, the jury could simply hold that an allegation of someone giving contradictory versions to the press is generally defamatory (without any need to consider the truth of the allegation given the rejection of the defence of justification in accordance with the approach directed by the Judge). Alternatively, the jury might have found the two meanings defamatory as the Plaintiff did not act suspiciously due to the explanation that he had momentarily forgotten about it and his omission to give the information (which he subsequently revealed) on 6 April was not deliberate. 70.Without any imputation of the Plaintiff being involved in match-fixing (as found by the jury), at the highest the allegations against the Plaintiff was that he acted suspiciously and maintained a distance from Progoal. Further, the Article itself did not allege any wrongdoing on the part of the Plaintiff. As we said, it only urged the ICAC to investigate thoroughly. In the context of the facts of this case, even having regard to the matters pinpointed by the Judge at paragraphs 45(1) to (3),we do not regard these as serious allegations. G. Responsible journalism 71.At paragraph 48 of the judgment, the Judge considered the extent of verification of the source of information. The author of the Article relied on the report of Ming Pao as to what was said by the Plaintiff on 6 April. The Judge took the view that as the lynchpin of the allegation that the Plaintiff hid information and gave contradictory answers later was his failure to give answers on 6 April, the author should also check the report of the other newspapers for verification. As found by the jury in the special verdict, he did not do so. 72.Mr Wong submitted the Judge erred in failing to recognize that the real lynchpin was more specific: the Plaintiff’s non-disclosure of the identity of the person who financed Progoal as its boss. Even if one were to consider the information reported in other newspapers, there was no such disclosure on 6 April. However, a few days later, the Plaintiff disclosed the sources of funding for Progoal included: (1) Yin King Beer company; (2) Yam Wai Hung; and (3) a Hong Kong businessman trading in German products under the brand name “Schmetz”. He also gave further details on the history and background of Progoal. 73.Mr Pow submitted that in view of the findings of the jury as to the defamatory meanings (which encompassed the Plaintiff’s “knowledge of and connection with” Progoal) and the actual wordings in the Article (referring to “普高的「身世」和資金來源”), the lynchpin could not be as narrow as suggested by Mr Wong. 74.We do not find the debate on the real lynchpin to be important. In our judgment, the real issue is whether Ming Pao has discharged its duty of responsible journalism on the facts of the present case. In considering the duty to verify, we agree with Mr Wong that there was no reason why Ming Pao could not rely on the veracity of the report prepared by its own reporter who was present at the press conference of 6 April. With respect, it is a red herring to consider the reports of the other newspapers. Ming Pao had no means to vouch for the veracity of those other reports. Further, even if those other reports were checked, they would not give a verbatim report of everything said on that occasion. There is always room for possible misunderstanding or omissions in such reports. 75.Before Ming Pao is held to have failed in taking steps to further verify the report of its own reporter, one must consider whether there was anything which prompted the need for further verification. The relevant consideration was the comparison of what was said by the Plaintiff on 6 April and the information subsequently revealed by him. Obviously, those in Ming Pao had read the report of Sing Tao on 8 and 9 April. In view of the clear difference between what had been said by the Plaintiff on 6 April and in the information he gave later, we do not see any basis to require the author of the Article to refer to other reports on 6 April before concluding that there was something which called for explanation. 76.And the reporter had taken the step to phone the Plaintiff about the discrepancies. In that conversation, there was no denial by the Plaintiff that he had given more information since 6 April. His explanation was momentary forgetfulness. This was set out in the related report at A4. 77.Mr Pow referred us to parts of the evidence of the author of the Article to support the Judge’s conclusion that Ming Pao should have checked other newspaper. We do not find such evidence to be of much relevance. The evidence was extracted by way of a particular line of cross-examination without putting forward a proper overall view of the matter in the way we did above. 78.In our judgment, on the facts of the present case and in light of the above, the Judge erred in taking irrelevant matter into consideration when he found that Ming Pao should have cross-checked with other newspaper reports on the answers given by the Plaintiff on 6 April. 79.The Judge did not give weight to the efforts of the reporter to seek explanation from the Plaintiff and the publication of his explanation at A4 as it was not mentioned in the Article itself and the explanation was not fairly brought to the attention of the readers, see paragraph 57 of his judgment. With respect, we beg to differ. The cross-reference to A4, in our view, is sufficient to lead whoever interested in the matter to read the report at A4 and that had adequately set out the Plaintiff’s explanation. In other words, the Judge failed to take relevant consideration into account in the overall assessment of whether Ming Pao had complied with the standard of responsible journalism in the context of the public interest defence. 80.The Judge also held against Ming Pao in terms of the lack of urgency, see paragraph 49. In so holding, the Judge failed to have regard to the primary message of appealing to the ICAC to conduct a thorough investigation. Progoal submitted its internal report to the HKFA on 9 April and the Plaintiff indicated that the report was acceptable to HKFA. The relevant players apparently changed their stances and if there were to be investigation, it had to be done promptly. Against that background, bearing in mind the purpose of the Article was to urge the ICAC to conduct proper investigation in order to foster public confidence in professional football in Hong Kong, we cannot agree with the Judge in this respect. 81.For these reasons, we must set aside the Judge’s determination on the public interest defence. It therefore falls upon us to decide whether Ming Pao has discharged the burden of establishing such defence. 82.We have already discussed the public importance of not only the subject matter but also the inclusion of the defamatory statements in the Article. We have also addressed the seriousness of the allegations, the efforts to verify and the contents as published in the Article, including the cross reference to the explanation by the Plaintiff, and the timing of its publication. 83.The tone of the Article is also relevant. Mr Pow placed considerable emphasis on the unfairness to the Plaintiff as the Article ascribed to him a deliberate intent to distance from Progoal and to hide his knowledge of or connection with it. We can understand the dismay of the Plaintiff. However, one must bear in mind what had been discussed in Sections D and E above. In view of the fact that the Article did not advance any allegation of wrongdoing against him, and its purpose was to urge the ICAC to conduct thorough investigation in a matter of general public importance, and the Plaintiff was given a fair opportunity to explain his different statements at different stages, though the tone of the Article could be regarded as aggressive or even provocative, we are of the firm view that Ming Pao has established a defence of public interest in the present case and the choice of wordings and presentation of materials was within the editorial judgment in the context of responsible journalism. H. Disposition 84.We allow the appeal, set aside the order of the Judge and dismiss the Plaintiff’s claim. 85.We also order the Plaintiff to pay the Defendants’ costs here and below. I. Postscript 86.By way of postscript, as we were told that this was the first case in Hong Kong in which the Reynolds defence was tried before a judge and jury, in view of our experience in this appeal, we are minded to make some observations on trial by judge with jury when a public interest defence is raised. 87.In England, the presumption in favour of jury trial in defamation cases had been abolished and nowadays trial with jury in defamation cases in England has become the exception rather than the rule, see section 11 of the Defamation Act 2013 and the recent case of Tim Yeo MP v Times Newspapers [2014] EWHC 2853 (QB). Even before that statutory change, there were already judicial statements leaning against trial with jury in defamation cases, see Cook v Telegraph Media Group Ltd [2011] EWHC 763 (QB); Thornton v Telegraph Media Group Limited [2011] EWCA Civ 748. 88.In Hong Kong, we do not have the same statutory change of the rules. The position is still governed by Section 33A of the High Court Ordinance, subsection (1)(a) of which stipulates that in a case where there is a defamation claim, the action shall be tried with a jury unless the court is of the opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury. At the same time s33A(4) provides that the court can order different questions of fact be tried by different modes and subsection (1) shall not affect that power. 89.In the context of Reynolds defence, even before the 2013 Act, the English Court of Appeal upheld the decision of Morland J in ordering apart from the meanings of the words, the other issues would be tried by the judge alone in Gregson v Channel Four Television Corporation [2002] EWCA 941[9]. What was said in the following paragraphs in the judgment of Waller LJ are pertinent to what we shall say below:
90.Since the operation of the public interest defence in a trial by a judge with a jury and the respective role of judge and jury in such a trial have not been fully canvassed before us, we shall not reach any definitive conclusion in this judgment. However, it is fair to observe that these are not easy questions and such a trial can bring about real difficulties in the application of the law to the facts. As observed by Gatley on Libel and Slander 12th Edn paragraph 15.22, very often some disputed issues of fact may lie at the heart of the running of the defence. Though specific questions of fact might be put before the jury with the agreement of counsel, as the jury does not have to give reason for their verdicts, there could be scope for argument on the implications stemming from a particular verdict which could probably be avoided if there is a reasoned judgment. And this highlights a major disadvantage of a trial with jury, that is, the absence of a reasoned judgment. 91.In Reynolds, Lord Nicholls explained the rationale for reserving this defence for the determination by a judge: “ A balancing operation is better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law will be built up.” 92.With the courts gaining experience in relation to the practical application of this defence and the recognition that ultimately the balance should be struck by an overall assessment, it has come to be appreciated that in some cases the process of fact finding could so intertwined with the proper evaluation of the matters pertaining to public interest that it may not always be satisfactory to circumscribe a judge’s overall assessment by some special verdicts of the jury in a pre-set list of questions prepared by counsel without the benefit of the reasoning process behind such verdicts. Also, there could well be situations where the judge could legitimately take a different view as to what are the relevant facts in the course of deliberation from those set out in the list of questions. 93.We shall not attempt to provide any solution to these issues in this judgment. If necessary, the matter would have to be left for future decision.
Mr Wong Yan Lung SC and Mr Law Man Chung, instructed by ONC Lawyers, for the 1st to 3rd defendants
[1] Bundle D1/510 [2] The defence was first established by the decision of the House of Lords in Reynolds v Times Newspaper Ltd [2001] 2 AC 127. [3] Lord Bingham in Jameel referred to the advantage of the judge and jury in hearing the witnesses and seeing the case developed day after day. [4] Paragraph 37 of the judgment. [5] (2012) 15 HKCFAR 261 [6] Lord Clarke and Lord Dyson expressed agreement to the judgment of Lord Mance at paragraphs 184 and 190 respectively. [7] See Jameel, supra, as applied in Blakeney-Williams v Cathay Pacific, supra, paragraph 138. [8] Lord Mance seems to have adopted a reading of Bonnick v Morris more favourable to the journalist at paragraph 129 in Flood though he did not find it necessary to explore this aspect further in view of the facts of Flood. [9] See also GKR Karate (UK) Ltd v Yorkshire Post Ltd [2000] 1 WLR 2571 where the Court of Appeal upheld an order for the trial of Reynolds defence as a preliminary issue before a judge alone. |
Cases cited in this judgment
Further hearings and rulings under CACV 201/2013