Law Chi Ching v. Apple Daily Ltd and Others
Read the full judgment text of CACV 221/2015 on BabelCite. This Court of Appeal judgment was delivered on 13 January 2017.
1. This is an appeal by the defendants against the judgment of Chung J who awarded, among other things, general damages in the sum of $700,000 to the plaintiff for beingdefamed by an article that appeared in the Apple Daily of 25 May 2008 and another article that appeared at the newspaper’s website until 23 November 2011. While originally the appeal is both on liability and damages, the issue now is solely on the correctness of the award of general damages of $700,000.
Cited by 2 cases · Cites 3 cases
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CACV 221/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 221 OF 2015 (ON APPEAL FROM HCA NO. 2155 OF 2009) ________________________ BETWEEN
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________________________ J U D G M E N T ________________________ Hon Cheung JA : I. The appeal 1.This is an appeal by the defendants against the judgment of Chung J who awarded, among other things, general damages in the sum of $700,000 to the plaintiff for beingdefamed by an article that appeared in the Apple Daily of 25 May 2008 and another article that appeared at the newspaper’s website until 23 November 2011. While originally the appeal is both on liability and damages, the issue now is solely on the correctness of the award of general damages of $700,000. II. Background 2.1The plaintiff was employed by the Hong Kong government as a general worker of the Workmen II grade. She worked at the Cheung Sha Wan Police Station in Kowloon. Her duties included cleaning, moving various office furniture or equipment and serving food and drinks. She worked in a team of nine workers. 2.2The plaintiff cohabitated with a Mr Cheung who owned and operated three Chinese dessert shops (‘the shops’) in the Shamshuipo and Yaumatei areas. 2.3The 1st defendant was the publisher of the Apple Daily and owner of the website. The 2nd defendant was the newspaper printer. The 3rd defendant was the editor of the newspaper and the 4th defendant was the reporter employed by the 1st defendant (‘Ms Jae’) who wrote the article in question. 2.4On 9 May 2008, Ms Jae received a complaint concerning the plaintiff. She made an oral enquiry with the Police on the same day and followed by a written enquiry dated 9 May 2008. 2.5Earlier on 8 May 2008 another local newspaper had made a similar enquiry with the Police concerning the plaintiff. 2.6The enquiry by Ms Jae was that a general worker by the name of the plaintiff at the Cheung Sha Wan Police Station had been accused of stealing from the station articles that were used for cleaning and other articles like eating utensils, such as plastic forks and knifes. These articles were then used at the Chinese dessert shops operated by the plaintiff. 2.7As a result of the enquiry, the plaintiff was interviewed by the Police on 13 May 2008. On 26 and 27 May 2008, other workers in the plaintiff’s team and Mr Cheung were also interviewed by the Police. The plaintiff was cleared of any misconduct by the Police after the investigation. 2.8On 25 May 2008, the article appeared in the newspaper. 2.9The Judge summarised the content of the article as follows :
2.10In the afternoon of 25 May 2008, one of the plaintiff’s friends, Ms Ho, telephoned her and asked her to read the article that had been written about her. The plaintiff then purchased a copy of the newspaper and read the article. Although the article did not identify her by name, the plaintiff said that she was the person referred to in the article in that the article referred to female general worker belonging to the Police establishment who had been working over 10 years at Cheung Sha Wan Police Station and aged 40 plus and who had opened three dessert shops at Shamshuipo and Yaumatei. The plaintiff said she was the only female general worker of 40 years of age working at the Cheung Sha Wan Police Station. There were three males and six female workers in her team and she was the youngest one. The rest of them were at about 50 plus. 2.11The next day when she went back to work, her colleagues all approached her and asked what had happened because of the article. 2.12The plaintiff said in her witness statement that :
2.13The plaintiff applied for, and was granted, special leave without pay from 2 January 2009 (about half a year after 25 May 2008) which lasted until 4 January 2010. Her wages were $10,595 per month and the amount of wages which would have been payable for the leave period totalled $127,140. The Judge did not allow this claim. 2.14The plaintiff’s friend, Ms Ho, who gave evidence on her behalf stated that when she visited one of the shops she saw eight to ten colleagues of the plaintiff there and they called the plaintiff ‘Boss’ 「事頭婆」. This is in support of the plaintiff’s case that she was the person who was accused by the article as stealing things for the shops. 2.15In respect of her illness, the plaintiff had consulted a psychiatrist, Dr David Chan between 14 October 2008 and 13 November 2009. From 30 September 2009, she also attended the West Kowloon Psychiatric Centre for treatment. 2.16The parties had, for the purpose of the case, jointly instructed Dr Wong Chung Kwong to prepare an expert psychiatric report on the plaintiff. Dr Wong was of the view that the plaintiff was suffering from a major depressive disorder arising from the incident. Dr Wong in his report of 8 October 2013 stated that the plaintiff ‘has reached maximal medical improvement on psychiatric grounds. She is now only suffering from mild symptoms of Major Depressive Disorder.’ In terms of impairment of function caused by the Major Depressive Disorder, Dr Wong made the following assessment :
III. The Decision 3.1This is how the Judge assessed the figure of $700,000 for general damages :
IV. The defendants’ submission 4.Mr Paul Shieh SC (who did not appear below) took two points on the award of general damages which he said is plainly wrong. First, the Judge erred in finding that the readers who knew the article referred to the plaintiff were a few hundred in number when there was no evidential foundation for such a finding. Second, Dr Wong had not addressed an important issue namely, whether the mental injuries suffered by the plaintiff were all caused by the publication or whether the injuries were caused by some other means, namely, the earlier police investigation. Mr Shieh did not challenge the award as being manifestly excessive by itself. V. Principles 5.1The Court of Final Appeal in Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd (2012) 15 HKCFAR 299 laid down guidelines for appellate court’s interference with an award of damages. Ribeiro PJ at [42] stated that :
5.2Ribeiro PJ at [35] to [41] further restated the principles applicable to general damages in libel : 1) It is compensatory in nature. 2) In performing the assessment, the Court must take into account all the circumstances of the case. This includes : (1) The gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation etc, the more serious it is likely to be. (2) The extent of the publication; the libel published to millions has a greater potential to cause damage than the libel published to a handful of people. V. Reference to the plaintiff 1) The law 6.1The law, which is not in dispute, is that if a plaintiff is not referred to by name and the facts linking the plaintiff to an article are not generally known, there is no actionable publication unless it is shown that the words are published to persons with knowledge of extrinsic facts and that reasonable persons with such knowledge would have understood the words as referring to the plaintiff. Gatley on Libel and Slander (12th ed) paragraph 7.3 states :
6.2This is known as ‘reference innuendo’. In Baturina v Times Newspapers Ltd [2011] 1 WLR 1526 Lord Neuberger of Abbotsbury MR at paragraph 23 held :
2) The Judge’s view 6.3The Judge was seized of the issue whether the article was referrable to the plaintiff since her name was not mentioned in the article. This is what the judge held :
6.4As pointed out earlier, the Judge held that the readers of the article who knew that the article referred to the plaintiff ‘would be more like a few hundred’. 3) My view 6.5I have to say immediately that the evidence about the number of people who would be able to link up the plaintiff with the person mentioned in the article either by the publication in the newspaper or in the website is extremely sketchy. From the extreme of a thousand workers working in all the Police Stations knowing her to be the one accused in the article, there is the more concrete evidence of her being in a team of nine workers and Ms Ho’s evidence who saw eight to ten colleagues of the plaintiff calling her by the name of ‘Boss’. 6.6The plaintiff in her evidence stated that after the news came out, all the world and all the people in the police station, her friends and the kaifongs of the shops knew about her stealing from the police station. When asked in cross‑examination if she could give a figure of the number of people who knew, such as one hundred, five hundred, one thousand or two thousand, she said that she was unable to provide an answer. In re‑examination, she said the staff at the Cheung Sha Wan Police Station amounted to two to three hundred people. She also claimed that there were a thousand workmen in the other police stations who knew about her being arrested and investigated. 6.7Mr Shieh accepted that there would be rumours circulating among the staff at the Cheung Sha Wan Police Station and amongst the friends and acquaintance of the plaintiff after the news came out. Nonetheless, the burden is on the plaintiff to identify by credible evidence those readers who have read the article and who would be in a position to link up the plaintiff with the person mentioned in the article. 6.8The Judge had clearly discounted the plaintiff’s claim that ‘the whole world’ or a thousand people knew about her being the person mentioned in the article as an exaggeration. But even with that discount, my view is that the Judge’s assessment that there were a few hundred people who were in the know is also not supported by evidence. 6.9There is no evidence that every one of the two to three hundred workers in the Cheung Sha Wan Police Station would have read the article and those who read it had the requisite knowledge to link it up with the plaintiff. It may be due to her distressed mental state that the plaintiff mistakenly thought that everyone around her would know about her case. This is understandable as a human reaction but this cannot be the proper basis for drawing inference on the extent of the people who knew about her case. This is not a case where the plaintiff, who was legally represented, would be placed in an impossible position to adduce the necessary evidence because, in the context of this case, the person who possessed this knowledge would be confined to those who worked with the plaintiff at the Cheung Sha Wan Police Station, her friends, kaifongs and patrons of the shops. The plaintiff’s evidence showed that she had referred to a group photograph taken of the workers of the Cheung Sha Wan Police Station. This is certainly a means where she could adduce some credible evidence as to those who knew about her case. She also said she had joined some leisure groups in the Cheung Sha Wan Police Station. Again, this is an area where credible evidence can be adduced on those in these groups who would likely to link up the plaintiff with the article. The same can be said of her friends, kaifongs and patrons. The plaintiff had really not provided any useful evidence in establishing the necessary linkage. 6.10The task of the Court is to draw inference on the extent of the people with such knowledge by reference to the available evidence. In doing so, it is important to lay emphasis on the context of the case. The plaintiff is not a celebrity or a well-known figure in her community. She is not, for example, someone holding office in her local mutual aid associations or residential building management committee. 6.11My view is that a more realistic assessment of those readers who would be able to draw the link between the plaintiff and the person referred to in the article would be a few tens and not a few hundred. In the absence of credible evidence, it will not be possible to give a more precise figure but it is unlikely to exceed 100 people. As such the Judge had made an error which affected the assessment of the general damages. This is a ‘plainly wrong’ situation where this Court is entitled to interfere. VII. Causation 7.1Dr Wong was jointly instructed by the parties to give an opinion on causation namely, whether the plaintiff’s mental injuries were all caused by the publication or whether the injuries were caused by some other means. The ‘other means’ in this case is the investigation of the plaintiff by the Police before the publication of the article. Dr Wong did not give such an opinion. This led to disagreements by the lawyers for the parties as to how Dr Wong should be approached to address this issue. Eventually, the parties had to attend before the Judge for the issue to be resolved. The long and short of it is that the Judge disallowed the parties from obtaining a further opinion from Dr Wong on causation. 7.2The Judge had probably misunderstood the parties’ case for the application. He thought that the concern was with the subsequent developments after the publication of article whenin fact the concern was on the police investigation of the plaintiff that took place prior to the publication. But, as the defendants conceded, it is not necessary to go into the reasons for the Judge’s refusal. Mr Shieh was not asking this Court to exclude the entirety of the plaintiff’s psychiatric injuries from the assessment of damages, he merely asked this Court to discount the general damages award to reflect the uncertainty over causal connection between the article and the psychiatric injuries. 7.3I am not prepared to accede to this request because there is simply no evidence on the respective impact of the police investigation of the plaintiff and the publication of the article on the psychiatric illness of the plaintiff. In the absence of such evidence, the Court would go into a realm of speculation as to whether the interview had partially caused the psychiatric illness. VIII. The award 8.In considering the appropriate amount of general damages, the position is that those readers who would be able to link up the plaintiff with the person mentioned in the article are in the few tens rather than in the few hundreds and bearing in mind the serious allegation of dishonesty against the plaintiff in the article and her psychiatric problem caused by the publication of the article (no issue being taken that such damages are recoverable), my view is that the award should be $450,000. IX. Conclusion 9.Accordingly, the appeal is allowed and the award for general damages is reduced to $450,000. X. Costs 10.The parties are required to lodge written submissions within 14 days on the costs of the appeal and below. Hon Kwan JA : 11.I agree with the judgment of Cheung JA. Hon Poon JA : 12.I agree.
Mr Bernard Yuen, instructed by Johnny Chu & Co., for the plaintiff Mr Paul Shieh SC, instructed by Hampton, Winter and Glynn, for the 1st to 4th defendants |
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