Hong Kong Television Network Ltd (Formerly Known As City Telecom (HK) Ltd) and Another v. Asia Television Ltd and Another
Read the full judgment text of HCA 2217/2012 on BabelCite. This High Court CFI judgment was delivered on 20 November 2015.
1. The plaintiffs commenced this action in libel against the defendants in November 2012.
Cited by 2 cases · Cites 12 cases
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HCA 2217/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE HIGH COURT ACTION NO 2217 OF 2012 ____________
_______________ JUDGMENT INTRODUCTION 1.The plaintiffs commenced this action in libel against the defendants in November 2012. 2.The libel concerns two newscasts by the 1st defendant (“ATV”) respectively on Saturday 24 November 2012 and Monday 26 November 2012 (collectively “the said newscasts”). The said newscasts show the 2nd defendant (“Shing”) making statements parts of which are relied upon to ground the libel claim (collectively “the said statements” and respectively “the 24 Nov statement” and “the 26 Nov statement”). It is undisputed Shing made the said statements also on behalf of ATV. 3.The said statements are admitted, but the defendants’ pleading denies liability principally on the following grounds:
4.The said statements are relatively short, and are annexed to this judgment for ease of reference. BACKGROUND 5.The 2nd plaintiff (“Wong”) is and was the cofounder, chairman and executive director of the 1st plaintiff (“City Telecom”). 6.ATV is one of the licensed free television broadcasters in Hong Kong. 7.Shing was an executive director of ATV since March 2010 but has ceased to be so by now (Shing claimed in his closing submissions his tenure was from 2009 to 2013). Wong became ATV’s chief-executive officer (“CEO”) for a short period (4 to 15 December 2008). Thus, Shing has not yet become ATV’s executive director during Wong’s brief tenure as ATV’s CEO. 8.City Telecom has operated an internet television business called “BBTV” from 2003 to 2012. It applied for a free television broadcast licence (“the free TV licence application” and “the free TV licence”, as the case may be) in December 2009 (about one year after Wong has left ATV). The application was later rejected by the Chief Executive-in-Council in October 2013. THE SAID STATEMENTS 9.As stated above, the said statements, the contents of which should be self-explanatory, have been annexed to this judgment. 10.Below is a summary of the contents of the said statements (given only for the convenience of the readers of this judgment). 11.The 24 Nov statement can be summarized as follows:
12.The 26 Nov statement can be summarized as follows:
ARE THE SAID STATEMENTS LIBELOUS ? 13.The statement of claim avers in gist that the natural and ordinary meaning of the said statements was libelous:
14.Of the above natural and ordinary meaning, the defendants’ pleading avers the following. In relation to the 24 Nov statement:
15.The relevant legal principles for determining whether a statement is libelous are trite. I will quote from one of my earlier decisions:
16.The following imputations are defamatory:
17.Even on the defendants’ pleaded meaning (see para 14 above), the said statements will carry the above imputations:
18.Based on the above, I conclude that the above imputations are libelous. JUSTIFICATION / FAIR OR HONEST COMMENTS 19.As stated above, the defendants seek to rely on the defence of justification and fair or honest comments; but only in relation to the meaning set out in para 14 above. 20.The plaintiffs correctly submit that it is settled a defamatory meaning is presumed to be false, with the consequence that the burden of establishing the above lines of defence rests with the defendants: Gatley, para 11.4, especially text to nn 24 and 27 to 29; Lo Sam Shing v Li Fong HCA 1803/2011 (14 March 2014), para 18; 陳雄偉及另十二人訴麥耀祥 CACV 112/1998 (15 February 1999), para 32. 21.I already found for the plaintiffs in relation to the said statements’ libelous meaning. But irrespectively of which libelous meaning is to be preferred (the plaintiffs’ or the defendants’), the defendants are unable to establish their defence for the reasons given below. 22.The witnesses who testified for the plaintiffs were:
23.ATV did not attend the trial (see also para 54 to 58 below). Shing appeared in person, but he chose not to testify. Although a number of witness statements were filed by the defence (and copied in the trial bundles), and some of them attended court (outside the court room), none of them have been called to testify. 24.As a result, the testimony of the plaintiffs’ witnesses was not contradicted by any testimony to the contrary. This is particularly so with regard to whether any of ATV’s information or documents (confidential or otherwise) have been removed by or for City Telecom and/or Wong. There are no contemporaneous records or documents to contradict the testimony either. 25.As the plaintiffs correctly point out, the credibility of the testimony is strengthened by the following circumstances:
26.Shing levies a number of criticisms against the testimony of the plaintiffs’ witnesses. They are summarized and considered below. 27.First, Wong’s testimony has been contradicted by a newspaper article published in November 2012 (as regards whether Wong already intended in 2008 to venture into the free television broadcast business). Wong has not been questioned about this, and therefore did not have the chance of confirming or refuting the said article. The said article was not said to have been written by him. Consequently, no (or at most little) weight can be placed on it for the purpose of assessing Wong’s credibility. Besides, the statements attributed by the said article to Wong can at best be said to be ambiguous. 28.Secondly, the language used in Wong’s witness statement is relied on as showing that his account is inherently incredible (such as shredding documents despite having to leave hastily, instead of simply leaving the documents behind). However, as the plaintiffs point out, there is no evidence of documents being shredded; that part of Wong’s statement may well have been an imperfect recollection of his instructions to his staff. 29.Thirdly, the language used in the plaintiffs’ witness statements is alleged to be deliberately unclear and misleading (such as, the witness statements only state that ATV’s confidential documents or records have not been removed, but do not mention anything about other ATV’s documents or records). I consider Shing’s argument to be too pedantic, and is trying to make a case out of pure linguistics. In any event, the witness statements have expressly denied this (see Wong’s witness statement, para 39 to 41 for example). Finally, the “sting” of the defamation is not purely about the removal of confidential documents or records, but also their subsequent improper use by the plaintiffs. 30.Accordingly, I consider the testimony of the plaintiffs’ witnesses to be truthful and reliable, and I reject any suggestion that any of them has misappropriated ATV’s confidential materials (or of any improper conduct as against ATV). 31.The defence of justification therefore fails completely. 32.It is trite law that, among of the ingredients of the defence of fair or honest comments, the comments must be based on true facts: Gatley, para 12.15. The material underlying fact in this action is the alleged misappropriation of ATV’s confidential materials and their alleged misuse for the benefit of City Telecom and/or Wong. 33.Because there is no evidence to support that material factual basis, the defence of fair or honest comments also fails. RELIEF 34.The plaintiffs’ written closing submissions seek the following relief:
35.The legal principles relating to damages appear in more than a few judicial authorities and legal textbooks (see below for details). (a) Compensatory damages 36.In relation to compensatory damages, the plaintiffs emphasis the following:
37.A convenient summary of the law on compensatory damages has been set out in the decision of the Court of Final Appeal in Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd (2012) 15 HKCFAR 299, para 35 to 41, and 112 to 113. Those principles have been borne in mind when assessing damages in this action. 38.The plaintiffs rely on several “precedent cases” as references for the amount to be awarded in this action:
39.Of the above cases, the plaintiffs submit that the salient facts of this action (see para 36 above) have the greatest similarity to those in the Choy Bing Wing decision. 40.Besides the Choy Bing Wing decision, there were at least two other decisions where very serious allegations have been made:
41.The libel in this action is no doubt serious: the said statements impute on the plaintiffs conduct which can both be dishonourable as well as criminal. The extent of circulation was likely to be large (the said statements being broadcast on the evening and late news). 42.As the plaintiffs correctly point out, what makes this libel more serious is that the defendants persisted in publishing it; the plaintiffs attempted to refute the 24 Nov statement only to find that the defendants repeated the libel by making the 26 Nov statement. That the said statements were probably taken seriously by more than a few is evidenced by the attitude of the government in its letter dated 30 July 2013. 43.However, I am not persuaded that the plaintiffs’ unsuccessful free TV licence application was caused by the libel (para 34(a) above). It is true the government at one stage mentioned in its correspondence the allegations of theft of confidential materials (the alleged theft was in effect the libel in this action). However, various other matters have also been mentioned at the same time. The language used in the document notifying the plaintiffs of the unsuccessful free TV licence application was too vague to enable a causal link to be drawn between the outcome and the said allegations. 44.The plaintiffs have therefore correctly not persisted in relying on the unsuccessful free TV licence application as a matter for increasing the quantum of loss. 45.I also agree with the plaintiffs that the libel has also been made worse by the defendants’ failure to retract it, or to apologize. But I do not consider their conduct in this action to have further aggravated the matter. 46.Taking all of the above into account, I consider compensatory damages of $1.3 million to be appropriate. (b) Exemplary damages 47.As regards exemplary damages, I do not consider the libel, seriously though it may be:
48.The libel in the Lo Sam Shing decision was published during the plaintiff’s election campaign. The court found:
49.The evidence in this action is insufficient to affirmatively establish the kind of conduct mentioned in either the Lo Sam Shing decision or the Kuddus decision. 50.For this reason, I will decline the plaintiffs’ invitation to make an award under this head of claim. CONCLUSION 51.Judgment is entered in the plaintiffs’ favour against the defendants for $1.3 million being the amount of compensatory damages. OTHER MATTERS (1) Adjournment application on 6 November 52.The first day of trial (Wednesday 4 November) was relatively short (from about 10 am to noon) as ATV was absent and Shing did not cross-examine any of the 5 plaintiffs’ witnesses called on that day. 53.The plaintiffs then indicated Wong could only be called to testify on Friday (there was consequently no trial on Thursday 5 November). 54.On the second day of trial (Friday 6 November):
55.The adjournment applications were opposed by the plaintiffs. I refused the applications to adjourn giving brief extempore reasons (in short, the applications were refused because the defence failed to show good reasons for failing to properly prepare for the trial). Those reasons are elaborated below. 56.Both defendants were legally represented earlier. By a summons taken out on 30 September 2015 (and served on both defendants), their former solicitors sought to cease to act for them. The said application was granted on 13 October 2015 and the order was sealed and served on the defendants on 16 October 2015. 57.Neither defendant has satisfactorily (if at all) explained the reason for seeking an adjournment of the trial only at such a late stage (there should be more than adequate time to seek legal representation (or leave to act in person in ATV’s case) either during the second half of October, and at least from Wednesday 4 November to Thursday 5 November). 58.Bearing in mind the above circumstances, and the provisions of the civil justice reform (which took effect as early as in 2009), I refused the adjournment applications on the ground that no satisfactory justification had been given for such applications. 59.In relation to Shing, during his application to adjourn, he indicated that:
60.I have had reservations about the above indications because they did not quite match previous litigation experience. The reservation has subsequently been proven to be correct. In an affirmation dated 10 November 2015 (filed in support of Shing’s application to re-open the trial (see para 63 to 69 (especially 63 and 65) below)), Shing deposed that he attempted to seek legal assistance from two solicitor firms after the first day of trial, but they refused to accept the instruction because of insufficient time for preparation (para 11 thereof). 61.Thus, as subsequent events have confirmed, an adjournment of the trial from Friday 6 November to Monday 9 November 2015 would not have assisted Shing in the manner he asserted. (2) Re-open trial application on 13 November 62.The parties’ respective case was closed on Friday 6 November 2015 (Shing elected not to testify, and decided not to call any witness). After discussing with the parties, the trial was adjourned to Friday 13 November with the following directions:
63.A summons was taken out by Shing on Tuesday 10 November (with supporting affirmation). After his clarification at the Friday hearing, the application sought to re-open the defence case so as to enable him to call defence witnesses. 64.After hearing submissions, the application was refused. Below are the reasons for the refusal. 65.The following were the main reasons given by Shing for the application:
66.In relation to para 65(1) above, ignorance of law does not provide a sufficient reason for not following the usual trial procedure. Besides, on the first day of trial Shing has been given a brief explanation of the trial procedure, including the procedure for calling witnesses. In this connection, Shing should have the sophistication to comprehend the explanation, having been an executive director of a sizeable television broadcast company for more than a while (leaving aside his other work experience). 67.In relation to para 65(2) above, besides the rather inconsistent accounts given by Shing for seeking legal assistance earlier (para 59 and 60 above), it was noted that:
68.In relation to para 65(3) and (4) above, it was firstly noted that those claims were inconsistent (one cannot logically think at the same time that witnesses did not need to be called (para 65(3) above) and that they could not be called (para 65(4) above)). Further, I have hesitation in accepting the veracity of this claim:
69.Having considered the above matters, I did not find it appropriate to accede to Shing’s application, which in any event was made at an extremely late stage of the trial. (3) Other points 70.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 71.Costs were discussed with the parties. The plaintiffs seek costs to be taxed on an indemnity basis, being of the view the defence has acted oppressively or with based ulterior motive (including the failure to apologise, and the failure to effectively defend this action). 72.There could well be other less sinister reason(s) for ATV’s absence at the trial; it is noted ATV has made attempts to seek leave to act in person. Shing, acting in person, has behaved with reasonable efficiency and circumspection when conducting his defence. 73.I therefore do not consider this action to warrant indemnity costs to be awarded. 74.There is no apparent reason to depart from the usual rule that costs should follow the event. There will accordingly be a costs order that the costs of this action (including any costs earlier reserved) be paid by the defendants to the plaintiffs to be taxed if not agreed. For the same reason, the costs of Shing’s application to re-open the defence case are to be paid by Shing to the plaintiffs to be taxed if not agreed (to assist those involved in the taxation of costs, the hearing lasted from about 10 am to 10:45 am).
Ms Queenie Lau, instructed by Hogan Lovells, for the plaintiffs The 1st defendant was not represented and did not appear The 2nd defendant appeared in person Annex The 24 Nov Statement 盛：「王維基先生嗰陣時喺ATV呢做咗12日嘅CEO，咁欸…佢嗰陣時呢有…我都係聽講，聽同事講，就有5位美女秘書，咁呢就係話去每一個department呢，都係話見到佢哋就等如見王維基，咁樣呢去攞一啲好多裡面機密嘅資料，商業嘅資料，咁佢亦都連…不斷print呢…連嗰啲影印呢影印機都影到壞咗啦就基本上，咁再將呢啲資料一箱一箱咁車走，咁而家佢仲用呢啲咁樣嘅ATV…屬於ATV內部裡面嘅機密資料，裡面一啲數據去做一個電視台同我哋惡性競爭，依個係咪喺職業操守有啲問題呢？大致上係咁多。」 記者：「可唔可以講下，佢攞咗啲咩資料呀？」 盛：「所有既資料，哈哈…我諗所有啲contract呀，裡面嘅…欸基本上電視台上面嘅數據佢都攞咗好多，基本上攞晒，我覺得係屬於公司裡面嘅嘢所有都係有商業機密嘅，同埋所有嘢都係。」 The 26 Nov Statement 盛：「當佢當日離職係冇帶走任何資料，但係喺佢呢十二日喺ATV任職CEO 嘅時候，佢有冇拎過任何資料呢？而係拎完資料之後，佢離職嘅時候有冇將呢啲資料歸還番比亞洲電視呢？呢個係我對佢第一點嘅回應，第二點就係呢，照我… 大家都眾所周知，阿Ricky呢係零八年嘅十二月十五日離開亞洲電視嘅，咁佢申請免費牌照嘅時候呢係零九年十二月三十一日，係一年零十六日。咁佢話四年前嘅資料對佢申請免費牌照有冇幫助，我覺得佢呢個係咪有個講大話呢？」 盛：「有消息講呢，喺今年十一月五號呢，佢(何安達)參加民建聯嘅二十周年大會嘅時候呢，就陪同王維基一齊出席，咁不斷游說各路人士就參加欸呢個即係說服欸呢個申請免費牌照…(何安達)佢喺今年二零一零年七月一號離職嘅，就由前任行政長官及政治委員官員離職後工作諮詢欸委員會發佈消息嘅，咁我或者讀一讀啦，佢呢個就係喺二零一三年七月一號至二零一四年六月三十號期間呢，何先生就唔可以參與任何有關政府事宜嘅游說工作。咁我唔知道呢度有冇啲違規喇。我就希望阿何先生唔單止向我哋，應該向政府同公眾解釋同回覆嘅。」 盛：「商業機密…公司內部嘅資料商業機密，呢啲大家都眾所周知喇，我諗呀…我基本上我入嚟亞洲電視好多果陣時候，之前管理層之前嘅老闆都有同我提及呢件事，就係攞咗一啲…聽講就係話攞咗一啲嘅資料之後隔一年就去申請呢個免費牌照。」 盛：「照我所知王維基先生之前呢除咗果十二日之外呢，佢係冇接觸過任何免費電視嘅業務同埋參與嘅，所以呢相隔一年之後，佢可以將咁多龐大嘅proposal去申請呢個欸免費牌照呢，係值得...係令人值得懷疑嘅。」 | ||||||||||||||||||||||||||||||
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