Regina Ip Lau Suk-yee v. Cheng Albert Jianghan and Another

HCA 1458/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1458 OF 2014

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BETWEEN

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D E C I S I O N

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INTRODUCTION

1.Mrs Ip (the plaintiff), Mr Cheng (the 1^st defendant) and Ms Yuen (the 2^nd defendant) are all well known public figures.  Mrs Ip complains that she was defamed by Mr Cheng in a phone-in programme broadcasted in an internet radio station known as D100.  Mrs Ip further complaints that the defamation was republished by Ms Yuen because she uploaded the programme onto her YouTube account.

2.Mr Cheng and Ms Yuen have filed their respective defences to Mrs Ip’s claims against them and now wish to amend their defences.  The main proposed amendments are objected to by Mrs Ip.

3.The issues that I have to decide are:-

(1) whether Mr Cheng’s proposed amendments in relation to the defence of fair (or honest) comment should be disallowed because he has failed to (a) identify the defamatory meaning or meanings sought to be made the subject of fair comment, and/or (b) identify the relevant comment(s) in the words complained of;

(2) whether Mr Cheng’s proposed amendments in relation to the defence of qualified privilege should be disallowed because:-

(a) he has failed to provide proper particulars in relation to (i) certain alleged information provided by a confidential informant, and (ii) an alleged attempt to verify the facts with Mrs Ip via a telephone call; and/or

(b) the defence of qualified privilege is “highly likely” to fail; and

(3) whether Ms Yuen’s proposed amendments in relation to the defence of qualified privilege should be disallowed because it is bound to fail.

BRIEF BACKGROUND FACTS

4.Mrs Ip is a member of the Executive Council and Legislative Council, and the co-founder and chairperson of a political party in Hong Kong known as the New People’s Party.

5.Mr Cheng is a well known host of phone-in radio programmes on political and current affairs.  He was formerly a member of the Legislative Council, and the host of a phone-in programme known as “風波裏的茶杯 ” (“the Programme”) which was broadcasted in an internet radio station known as D100.

6.Ms Yuen was the chairperson of a political party in Hong Kong known as People Power. She was one of the candidates who participated in a by-election of the South Horizons West Constituency of the Southern District Council held on 23 March 2014.  At that election, she was defeated by another candidate, Ms Chan, who was a member of the New People’s Party.

7.In April 2014, it was reported in the local media that the owner (“the Owner”) of Marina Square, a shopping mall located in South Horizons, intended to renovate the mall and transform it into a shopping outlet for luxury brands with the aim of attracting tourists from Mainland China (“the Plan”).  That plan was controversial and met with strong oppositions from some tenants and residents in the South Horizons West Constituency.

8.Apparently, Ms Chan and other members of the New People’s Party went to Taipei on 8 May 2014 to meet the Owner or its representatives with a view to persuading it to abandon the Plan.  There was a further meeting in Hong Kong on 27 May 2014.  After the meetings, Ms Chan posted up news about the decision of the Owner not to carry out the Plan.  However, the Owner changed its stance later and decided to proceed with the Plan.

9.On 29 May 2014, in the course of the Programme, Mr Cheng published words which Mrs Ip complains to be defamatory of her.  The words complained of are set out in paragraph 9 of Mrs Ip’s statement of claim and I shall not repeat them here.

10.In paragraph 11 of the statement of claim, Mrs Ip contends that the words complained of bear the following meanings:

(1) Prior to the by-election, Mrs Ip already knew that the Owner was going to implement the Plan.  However, Mrs Ip colluded with the Owner and was involved in a scheme of delaying the announcement of the implementation until after the by-election to ensure that Ms Chan could be elected.

(2) Since Ms Chan was duly elected, Mrs Ip has to return favour to the Owner.  But since the New People’s Party cannot persuade the residents into accepting the Plan, Mrs Ip has to adopt a delaying tactic.

(3) Mrs Ip actually met the Owner prior to the by-election in March 2014 but lied to the public that the meeting took place after the by-election.

(4) Mrs Ip collaborated or conspired with businessmen to trick, deceive and/or fool the public.

(5) Mrs Ip and the Owner staged a show to fool the public so as to assist Ms Chan in winning the by-election.

(6) Mrs Ip was involved in tricking, fooling and/or deceiving the public.

(7) Mrs Ip was not honest and/or reliable.

11.Mr Cheng denies that the words complained of concern Mrs Ip, or that they bear the meanings alleged by her.  In his defence, he also relies on the defences of fair comment and qualified privilege which I shall refer to in greater detail below.  He alleges that he was informed by a confidential informant, who was a predominant figure within the pro‑establishment camp and whose information he considered to be reliable and credible, of the following prior to the broadcast of the Programme on 29 May 2014:-

(1) Prior to the by-election, Mrs Ip (and/or her alter ego) met with the Owner, and Mrs Ip knew about the Plan.  But due to the District Council by-election, Mrs Ip (and/or her alter ego) went to Taiwan to meet the Owner once and explained the pros and cons upon the arrangement of the Liaison Office of the Central People’s Government in the HKSAR, or the HKSAR Government.  Mrs Ip (and/or her alter ego) told the Owner that since the New People’s Party were preparing for the election, the Owner should not announce the Plan.  That was the reason why the announcement was delayed until after the by-election.

(2) After the by-election, as the New People’s Party were given benefits by the Owner, they had to return favour to the Owner, and that was the reason why the implementation and the announcement of the Plan was made immediately after the by-election.

(3) The New People’s Party had reached a prior agreement with the Owner, and all of them merely staged a show.

(4) The New People’s Party was involved in collusion with the Owner.

12.Ms Yuen denies that the words complained of concern the reputation or character of Mrs Ip. She also denies that they bear the meanings alleged by Mrs Ip.  She admits that she shared a link to the Programme which was accessible via the website of D100 on her own political blog at YouTube.  In her defence, she relies on the defence of qualified privilege.

13.Mr Cheng and Ms Yuen now apply to amend their respective defences by a summons dated 29 December 2015.  Mrs Ip objects to Mr Cheng’s proposed amendments in respect of the defence of fair comment and qualified privilege, and Ms Yuen’s proposed amendments in respect of the defence of qualified privilege.

DISCUSSION

(i)    Mr Cheng’s proposed amendments in respect of the defence of fair comment

14.Mr Cheng’s proposed amendments in respect of the defence of fair comment appear in paragraph 12 of his draft amended defence.  The proposed amendments are substantial and consist of 31 sub‑paragraphs.  It is not necessary to set out the proposed amendments here.  It is of note that:-

(1) The proposed amendments do not state or identify the defamatory meaning or meanings sought to be made the subject of fair comment, contrary to the pleading requirement for raising the defence of fair comment (see Mak Shiu Tong v Yue Kwok Ying (2004) 7 HKCFAR 228, at paragraph 19 per Ribeiro PJ; and Gatley on Libel and Slander, 12^th edition, at paragraph 27.17).

(2) Under sub-paragraphs (1) to (6) of paragraph 12, the words complained by Mrs Ip are set out verbatim as “particulars of comments”.  It is, however, apparent that the words contain a mixture of allegations of fact and comment.  In my view, it is incumbent on a defendant seeking to raise the defence of fair comment to clearly identify the comment(s) which he says attracts that defence (see Control Risks Ltd v New English Library Ltd [1990] 1 WLR 183, at 189 per Nicholls LJ, quoted with approval by Ribeiro PJ in Mak Shiu Tong).

15.For the above reasons, I consider the proposed amendments in respect of the defence of fair comment do not comply with the pleading requirements for raising the defence of fair comment and should not be allowed.

(ii)   Mr Cheng’s proposed amendments in respect of the defence of qualified privilege

16.Mr Cheng’s proposed amendments are set out in paragraph 13 of his draft amended defence. Quite a number of new sub‑paragraphs are proposed to be added.  Again, I do not propose to set out the proposed amendments here, suffice it for me to point out that:-

(1) sub-paragraphs (1) to (7) of paragraph 13 relate to the defence of qualified privilege based on the principles established in Reynolds v Times Newspapers Ltd [2001] 1 AC 127; and

(2) sub-paragraphs (8) to (11) of paragraph 13 relate to the form of qualified privilege commonly referred to as “reportage”.

17.Two main objections have been raised by Mr Victor Dawes SC on behalf of Mrs Ip to the proposed amendments.

18.First, Mr Dawes complains that Mr Cheng has failed to provide proper particulars in relation to:-

(1) the information allegedly provided by the confidential informant to Mr Cheng, eg the date, time and location of the meeting with the informant, how the informant came to know of the relevant facts which he/she imparted to Mr Cheng, and the reason for the provision of the information to Mr Cheng; or

(2) the alleged attempt to verify the facts with Mrs Ip via a telephone call, eg the date or time of the telephone call, the person who made the call, whether Mrs Ip picked up the call and what she said in response to the request for comment.

19.The missing particulars are, it seems to me, relevant in so far as Mr Cheng is seeking to run the defence of qualified privilege based on Reynolds.

20.Mr Li argues, on behalf of Mr Cheng, that if particulars are missing, they can be provided upon request or application.  However, it is trite that where a party is seeking the court’s indulgence to permit his pleadings to be amended, the amended pleadings must be properly particularised.  Where objection is taken that the proposed amendments are not properly particularised, it is not an answer to say that particulars can be provided upon request or application.

21.It has not been suggested by Mr Li that without the pleas objected to (ie paragraph 13(3) and (5) of the draft amended defence), the rest of paragraph 13 would be sufficient to support the defence of qualified privilege based on Reynolds. It seems to me that without those sub-paragraphs, the rest would plainly be insufficient.

22.In so far as “reportage” is concerned, I consider it to be clear from the words complained of that Mr Cheng cannot be said to be merely reporting what he had allegedly been told by the informant in a full, fair or disinterested manner (see Flood v Times Newspaper Ltd [2012] 2 AC, at paragraph 34 per Lord Phillips of Worth Matravers PSC).  In particular, Mr Cheng made it clear in the Programme that he believed that Mrs Ip and/or the New People’s Party were colluding with businessmen to stage a show, and he adopted what he had allegedly been told by the informant.

23.In all, I am not prepared to allow the proposed amendments in paragraph 13 of the draft amended defence.

(iii)  Ms Yuen’s proposed amendments in respect of the defence of qualified privilege

24.I wish to make it clear at the outset that I leave open the question of whether Ms Yuen can be said to have republished the Programme by merely providing or sharing a link to the Programme on her own political blog at YouTube for the purpose of the law of defamation.  This issue has not been debated before me and is not relevant to the present discussion.  It is an important question which will have to be considered at the trial.

25.Subject to the issue of “republication”, if what Ms Yuen did was simply to “republish” the alleged libel by Mr Cheng without carrying out any investigation of the allegations, it is difficult to see how the defence of qualified privilege based on Reynolds can be made out.  None of the matters pleaded in paragraph 9 of her draft amended defence, whether singly or cumulatively, can, in my view, support the defence of qualified privilege based on Reynolds.

26.In so far as “reportage” is concerned, I agree with Mr Dawes that, as a matter of principle, if the original publication cannot be regarded as a full, fair or disinterested reporting, the republication of the same cannot be so regarded either.

DISPOSITION

27.For the above reasons, I dismiss Mr Cheng and Ms Yuen’s summons dated 29 December 2015.  There are some house-keeping or minor amendments in the draft amended defences which should not be controversial.  I shall leave it to the parties to sort out those amendments.  I shall now hear the parties on the question of costs.

Mr Victor Dawes, SC, instructed by Wilkinson & Grist, for the plaintiff

Mr Jeffrey Li, instructed by K B Chau & Co, for the defendants