Chung Ming Yu and Others v. Next Magazine Publishing Ltd and Another
Read the full judgment text of HCA 785/2011 on BabelCite. This High Court CFI judgment was delivered on 14 November 2017.
1. The trial of the present action was previously scheduled to commence on 8 October 2014 with 14 days reserved. At the 2 nd Pre-trial Review (“ PTR ”) on 27 August 2014, I dealt with various late applications on the part of the 1 st and 2 nd defendants (“ D1 ” and “ D2 ”, collectively “ Ds ”), and vacated the trial dates (“ Decision ”). On 15 October 2014, I handed down my reasons for decision (“ Reasons ”). I also dealt with some minor applications by the 1 st to 12 th plaintiffs (“ P1 ” to “
Cited by 3 cases · Cites 1 case
|
HCA 785/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 785 OF 2011 ____________
____________ Before: Deputy High Court Judge Marlene Ng in Chambers Date of Hearing: 16 November 2016 Date of Handing Down Judgment: 14 November 2017 ________________ DECISION ________________ I. INTRODUCTION 1.The trial of the present action was previously scheduled to commence on 8 October 2014 with 14 days reserved. At the 2nd Pre-trial Review (“PTR”) on 27 August 2014, I dealt with various late applications on the part of the 1st and 2nd defendants (“D1” and “D2”, collectively “Ds”), and vacated the trial dates (“Decision”). On 15 October 2014, I handed down my reasons for decision (“Reasons”). I also dealt with some minor applications by the 1st to 12th plaintiffs (“P1” to “P12”, collectively “Ps”). 2.By the Decision/Reasons, I also directed inter alia all case management conferences (“CMCs”), directions hearings and interlocutory applications in the present action be docketed to be heard and/or dealt with by Master S Kwang (“Master”) who shall be at liberty, where appropriate, to refer any matter or application to be heard by a judge. 3.For convenience, unless otherwise stated, I adopt herein the abbreviations in the Reasons. I also adopt without repeating here (a) the summary of the parties’ pleadings, especially the ASoC[1] and AD (then AD Draft) referred to in paragraph 4 below, and (b) the procedural developments in the present action up to 15 October 2014. 4.By the Decision/Reasons, I granted leave for Ps to amend the SoC (a) in the manner marked in red as per the ASoC Draft, and (b) by adopting the certified English translation of the Words in the Article. On 10 September 2014, Ps filed the Amended SoC (“ASoC”). I also granted leave for Ds to amend the Defence (i) in the manner marked in red as per the AD Draft,[2] and (ii) with amendments consequential to the ASoC. On 29 October 2014, Ds filed the Amended Defence (“AD”). I further granted leave for Ps to file/serve their Amended Reply within 42 days thereafter. At the CMC on 21 January 2015, the Master ordered that unless Ps do file/serve the Amended Reply on/before 5:00pm on 4 February 2015, Ps shall be debarred from filing such pleadings. On 4 February 2015, Ps filed the Amended Reply (“AR”). 5.By the Decision/Reasons, I granted leave for Ds to file/serve (a) the supplemental witness statement of Ngai dated 18 June 2014 and the witness statements of Tam and Pang both dated 18 June 2014 as per the Ngai Draft,[3] Tam Draft and Pang Draft,[4] (b) the witness statement of Tse dated 24 June 2014 as per the Tse Draft,[5] and (c) the witness statement of Yeung as per the Yeung Draft.[6] On 29 October 2014, Ds filed the witness statements of Tam, Pang, Tse and Yeung and the supplemental witness statement of Ngai. Thus, Ds introduced 4 new witnesses and 5 new witness statements. 6.On 29 October 2014 and 7 January 2015, Ds and Ps filed their respective Supplemental List of Documents. On 4 February 2015, Ps filed their 2nd Supplemental List of Documents. 7.By the Decision/Reasons, I granted leave for Ps to serve additional/supplemental witness statement(s) as to fact in reply within 42 days. By a Consent Order dated 21 November 2014, leave was granted for Ps to file/serve such additional/supplemental witness statement(s) as to fact in reply by 10 December 2014. At the CMC on 21 January 2015, the Master ordered that unless Ps do file/serve such additional/supplemental witness statements as to fact in reply to the AD on or before 5:00pm on 4 February 2015, Ps shall be debarred from relying on at trial any additional/ supplemental witness statements in reply to the AD. 8.On 4 February 2015, Ps filed and served the witness statement of 何俊文 dated 31 January 2015, the witness statements of 何雪玲, 周康傑, 許鳳蓮, 周筱穎, 曾慶恒, 黃溢軒, 葉國基 and 藍家銘 all dated 1 February 2015, and the 2nd witness statements of 黃梓琳, 袁愛琼 and 鍾明宇 all dated 1 February 2015. Thus, Ps introduced 9 new witnesses and 12 new witness statements. By this stage, Ps had in total 24 witnesses and 27 witness statements, whilst Ds had in total 8 witnesses and 9 witness statements. 9.As alluded to above, the Master heard the CMC on 21 January 2015. For the purpose of such CMC, Ps and Ds filed their respective Listing Questionnaire (“LQ”) on 13 and 14 January 2015. 10.On 1 April 2015, Ds filed a summons (“Ds’ 4th Summons”) to seek the following reliefs, and filed the affidavit of their solicitor Cheung Bing Keung Peter (“Cheung”) in support (“Cheung Aff”):
11.On 13 April 2015, the Master ordered inter alia that (a) Ds were to file/serve a table summarising their grounds for striking out the Impugned AR/WS together with estimation of time to be spent on substantive argument for each ground, (b) within 14 days of receipt of the table in (a) above Ps were to apply for affidavit evidence (if so required) otherwise they would be debarred from adducing any affidavit evidence for Ds’ 4th Summons, (c) if no such application was made then no further affidavit evidence was to be filed by any party, and (d) within 14 days of receipt of the table in (a) above Ps were to give their estimation of time to be spent on substantive argument of each ground for striking out. Ps did not apply to file affidavit evidence but they provided their time estimations, so on 17 June 2015 Ds filed the table in (a) above that incorporated Ps’ time estimations (“Ds’ Table”). 12.On 24 June 2015, the Master scheduled the substantive hearing of Ds’ 4th Summons to be heard on 19-20 November 2015. 13.The CMC was scheduled to be heard on 22 July 2015. Ps’ LQ filed on 20 July 2015 confirmed (a) their pleadings were in order and did not require amendment, (b) they did not intend to take out any other interlocutory application, and (c) it was appropriate in all the circumstances to set the case down for trial. On 21 July 2015, the Master adjourned the CMC to be heard immediately after the disposal/determination of Ds’ 4th Summons. On 11 and 13 November 2015, Ps and Ds respectively filed their LQs. Ps’ LQ again confirmed the matters in (a)-(c) above. 14.At the substantive hearing for argument for Ds’ 4th Summons on 19 November 2015, Ps orally applied to re-amend the AR. The Master declined to entertain such unformulated oral application, so he adjourned Ds’ 4th Summons and CMC for substantive hearing with 2 days reserved in consultation with counsel’s diary, and directed Ps to take out application for leave to re-amend the AR supported by affidavit to explain the reasons why such application was necessary at that stage. The Master further directed such summons (if made) to be heard together with Ds’ 4th Summons, but Ds had to state whether they would oppose such summons, and if so, to give brief grounds of their objections with estimation of time to be spent on argument. 15.On 2 December 2015, Ps filed a summons (“Ps’ 4th Summons”) to seek leave to re-amend the AR in the manner marked in green as per the draft annexed to such summons (“RAR Draft”). On the same day, Ps filed the affidavit of their solicitor Lau Kwok Fai (“Lau”) (“Lau Aff”) in support. On 4 January 2016, the Master directed inter alia that Ps’ 4th Summons, Ds’ 4th Summons and CMC be heard before him on 13-14 April 2016 with 2 days reserved, and no further affidavit evidence be filed without leave of the court. 16.On 5 April 2016, Ps filed their LQ. Just before the hearing on 13-14 April 2016, Ps by their counsel’s skeleton submissions dated 11 April 2016 stated that upon review of the case Ps were willing to voluntarily withdraw the witness statements of 黃琪成 and 葉秀華 both dated 2 December 2012, the witness statement of 何俊文 dated 31 January 2015, the witness statements of 何雪玲, 周康傑 and 許鳳蓮 all dated 1 February 2015, and paragraphs 51-53 and 255 of the witness statement of 藍家銘 dated 1 February 2015. Since Ds had no objection to such withdrawal, the Master eventually granted leave for Ps to withdraw such witness statements (in whole or in part), and ordered they be expunged from the court record (see paragraph 18(b)(ii) below). 17.On 14 April 2016, Ds submitted and served revised grounds for striking out parts of various witness statements filed by Ps (“Ds’ Revised Table”) as follows:
The main focus of Ds’ complaints concerned 2 matters: (i) “the Church” (see (a) above) and (ii) the biblical references (see (b) above). 18.After hearing arguments, on 14 April 2016 the Master granted inter alia the following order (“Master Order”):
19.For Ps’ 4th Summons, Ds took no issue over the proposed re-amendments in the preamble of paragraph 9(1) and paragraphs 9(1)(d), 9(2)-(4) and 9(7)-(8) in the RAR Draft that essentially alleged “the Group” did not exist, and the Master allowed such re-amendments (see paragraphs 18(a)(i)(1)-(4) and 18(b) above). 20.The Master disallowed the proposed re-amendments in paragraphs 9(1)(a) and 9(2)-(3) in the RAR Draft (“Disputed Re- amendments”) (see paragraph 18(a)(i) above), which essentially alleged “the Church” (see paragraph 17(a) above) as used in the RAR Draft was synonymous with “the Group”, ie “a religious group which is associated with the name and/or term “真理天城” as averred in the AD[8] save and except Ps denied the Church had/has any association with the name/term “真理天城”. 21.On 27 April 2016, Ps filed Notice of Appeal to Judge in Chambers against the Master Order, and sought the following reliefs (“Appeal”):
22.On 10 and 11 May 2016, Ps and Ds respectively filed their LQs. Upon the parties’ joint application, on 12 May 2016 the Master granted an order by consent that (a) the witness statements of 周筱穎, 曾慶恒, 黃溢軒, 葉國基 and 藍家銘 and the 2nd witness statements of 黃梓琳, 袁愛琼 and 鍾明宇 all dated 1 February 2015 be expunged from the court record, and (b) fresh statements of 周筱穎, 曾慶恒, 黃溢軒, 葉國基 and 藍家銘 and fresh 2nd statements of 黃梓琳, 袁愛琼 and 鍾明宇 without the words/passages struck out under the Master Order be filed/served within 14 days, but (c) compliance with the above directions be stayed until 14 days after disposal of the Appeal. The CMC scheduled to be heard on 13 May 2016 was also vacated. 23.On the same day, the Master assessed the quantum of costs under the Costs Order at the agreed sum of $280,000. 24.To date, Ps failed to file/serve the Re-Amended Reply. II. AFFIDAVIT EVIDENCE FOR Ds’ 4TH SUMMONS 25.Cheung noted a plaintiff in a defamation action must prove the impugned words/statements are defamatory, but he must first identify their meaning as reasonably understood by ordinary people using general common sense, which may include inferences/implications or indirect meanings that do not require the support of extrinsic facts or special knowledge. Cheung complained that by putting in issue various biblical references/meanings the Impugned AR sought to introduce extrinsic facts to establish the meaning of the allegedly defamatory Words and to request court’s adjudication on the truth of religious belief, both of which were impermissible. Thus, the Impugned AR (a) disclosed no reasonable cause of action, (b) was scandalous, frivolous or vexatious and/or (c) might prejudice, embarrass or delay the fair trial of the action, so they ought to be struck out. 26.Cheung alleged the Impugned WS contained statements of information, belief and/or expression of opinion and also biblical references, which were not admissible. Further, Ps only had leave to serve “additional and/or supplemental witness statement(s) as to fact in reply”, but the Impugned WS were not in reply to Ds’ supplemental/further witness statements of Ngai, Tam, Tse, Pang and/or Yeung. Thus, the Impugned WS (a) contained inadmissible evidence, (b) was scandalous or irrelevant, and/or (c) was otherwise oppressive, so they ought to be struck out. III. AFFIDAVIT EVIDENCE FOR Ps’ 4TH SUMMONS 27.Lau claimed that prior to the 2nd PTR Ds had only served 4 witness statements, ie 3 statements by Ds’ employees mainly on compilation of the Article, and a 2-page pre-printed and pro-forma statement by Ngai who was an ex-member of “the Church” that merely adopted what was stated in the Article. It was said Ds’ case prior to the 2nd PTR fell squarely within the four corners of the Article. 28.At the 2nd PTR, despite Ps’ objections, leave was granted for Ds to amend their Defence and to serve 5 more witness statements (but some parts of the proposed drafts were redacted/disallowed) with consequential directions, which led to vacation of the original trial dates. On 29 October 2014, Ds filed/served the AD (which Lau said went beyond the scope of the Article to cover new substantial matters) as well as the 2nd witness statement of Ngai and the witness statements of Tse, Pang, Yeung and Tam (which Lau said covered new substantial matters “apparently in support of [Ds’] allegation that [Ps] were a religious cult”). Lau claimed “[the] religious group of which [Ps] were members was for the first time described in pleading and witness statements as a religious cult”. At the CMC on 21 January 2015, the Master inter alia required Ps to serve their AR and additional/supplemental witness statements in reply by 4 February 2015, and directed the parties to take out all interlocutory applications by 31 March 2015 (and no further interlocutory application be made after that day without his leave). On 4 February 2015, Ps filed/served the AR and additional witness statements. 29.Lau claimed Ps did not take out any interlocutory application at that stage as they genuinely considered they were ready for trial and indeed wished to have the present action set down for trial again. But Ds filed Ds’ 4th Summons on 1 April 2015 to strike out parts of AR and parts of Ps’ additional/supplemental witness statements. During the substantive hearing of Ds’ 4th Summons on 19 November 2015, the Master made observations (as understood by Ps’ legal representatives) to the effect that the AD referred to “the Group” and the AR referred to “the Church”, but the pleadings did not expressly equate “the Church” as “the Group”, so the pleas in the AR on the former might be irrelevant. Lau suggested this was the “first time that such a possible pleading problem occurred to [Ps]” as (a) “[hitherto], both parties had apparently treated “the Church” and “the Group” as being synonymous terms, employed by [Ps] and [Ds] respectively, to refer to the religious body of which the [Ps] herein were members”, and (b) Ds did not raise such point in D’s Table as a ground for striking out the AR. Ps therefore wished to re-amend the AR to remove any possible confusion caused by the use of “the Group” and “the Church” in the pleadings, and the hearing of Ds’ 4th Summons was adjourned for Ps to take out Ps’ 4th Summons. Lau urged the court to grant leave for Ps to re-amend the AR “as the need to amend did not occur to [Ps] until the hearing on 19 November 2015, and [Ds] would suffer no prejudice by reason of the proposed amendment, which is merely technical in nature”. IV. LEGAL PRINCIPLES (a) Appeal from Master’s decision 30.It is trite that an appeal from the master to judge in chambers is dealt with by an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time. The judge will give the weight it deserves to the previous decision of the master; but he is in no way bound by it.[9] (b) Striking out pleadings 31.Ds’ 4th Summons was made under Order 18 rule 19 of the Rules of the High Court (“RHC”) [10] and the inherent jurisdiction of the court. The principles governing striking out applications are well established. Hong Kong Civil Procedure 2018 provides as follows:[11]
But the fact a question of law appears difficult/obscure does not necessarily preclude the court from striking out a claim if it is satisfied it has all the necessary information to decide the question, and has come to the conclusion after full argument in the face of all relevant information that the case is plainly and obviously one for striking out. In such circumstances, the court “should not decline to do so on the ground that the issues are difficult or complicated”.[12] 32.In respect of the ground of no reasonable cause of action, a reasonable cause of action means “a cause of action with some chance of success when only the allegations in the pleading are considered ……”[13] In respect of the ground that the plea was frivolous or vexatious, Hong Kong Civil Procedure 2018 states that:[14]
(c) Striking out witness statements 33.Order 38 rule 2A(8) of the RHC provides that nothing in this rule shall make admissible evidence that is otherwise inadmissible. Thus, the court has discretion to expunge witness statement or parts thereof on the grounds that such statement evidence is inadmissible because it is irrelevant, scandalous, oppressive and/or embarrassing.[16] 34.In Re Linea Trading Company Limited, Barma J (as he then was) summarised the legal principles on striking out affidavits under Order 41 rule 6 of the RHC as follows:[17]
I agree with Mr Ho, counsel for Ds, that generally speaking these principles apply mutatis mutandis to striking out of witness statements. Irrelevant and/or inadmissible evidence in witness statements are liable to be struck out as otherwise it will lead to embarrassment and unnecessary confusion, and it will also be a waste of time/effort for the other party to respond to it. V. EXISTING PLEADINGS 35.In the present action, Ps sued Ds for libel in respect of the Article published in the 1088th issue of the Magazine on 13 January 2011. The Article was a cover story titled “換妻邪教” with the Words and Photos on the cover, contents and inside pages that Ps claimed were defamatory of them in their natural and ordinary sense. Ds claimed it was a piece of investigative journalism; they denied Ps’ claim and put forward various defences, including justification, fair comment and Reynolds privilege. (a) ASoC 36.In the ASoC, Ps pleaded that (i) Ds deliberately printed/ published or caused to be printed/published the Article in the Magazine, (ii) the Article and Photos were understood and meant to refer to them, and (iii) no less than 42 phrases/sentences/passages of the Words were grossly defamatory of them in their natural and ordinary meaning. I shall adopt but not repeat here the summary in paragraph 40 of the Reasons in respect of P’s pleas as to the natural and ordinary meaning of the impugned Words, and highlight below only a few of the pleaded “natural and ordinary meaning” of the Words:
The Words and their “natural and ordinary meaning” as pleaded in paragraphs 15 and 17 of the ASoC only referred to the Cult being “真理天城教” [23] or “真理天城教派”,[24] and not “the Church” as described in paragraph 17(a) above at all. P went on to plead that by reason of the publication of the Words they suffered damage to their reputation, and they were distressed/embarrassed. They also asked for injunctive relief and loss/damages, including aggravated and/or exemplary damages and special damages being P1’s loss of income. (b) AD 37.Since the Cheung Aff alleged P’s 4th Summons was triggered by the AD referring to “the Group” and the AR referring to “the Church”, I shall revisit the Defence (summarised in paragraphs 41-43 of the Reasons) that was subsequently amended to become the AD. 38.Ds denied the Article referred to Ps or it had been or could have been shown to have been published to persons who knew P3 to P12. But if, which was denied, the Words were understood to refer to the Ps, Ds denied the Words in their natural and ordinary meaning and in their proper context bore any of the meanings set out in paragraph 15 of the ASoC. But if the Words bore or were understood to bear or capable of bearing the meaning in paragraph 15 of the ASoC, Ds relied on the defences of justification, fair comment and Reynolds privilege. 39.For the justification defence, Ds pleaded under “Particulars of meaning” (“Meaning Particulars”) in paragraph 10 of the AD (“Para 10 / AD”) “meaning” of the Words in the natural and ordinary sense set out in (a)-(m) below that was said to be true in substance and in fact, and if necessary Ds would rely on section 26 of the Defamation Ordinance Cap 21:
40.Ds also relied on the defence of fair comment, ie insofar as the Words contained the following comments or expressions of opinion they constituted fair comment made in good faith and without malice on a matter of public interest[30]:
41.Ds pleaded the following particulars of facts/matters in support of the justification defence (and relied on some of such particulars for the defences of fair comment and Reynolds privilege):
42.Ds also averred the Article (of which the allegedly defamatory Words formed part) was published on an occasion of qualified privilege, and if necessary they would rely on section 27 of the Defamation Ordinance Cap 21:
(c) AR 43.The AR traversed many of the facts/matters pleaded in the AD that helped to elicit the disputed issues for the trial of the present action. In the AR, Ps averred the Words/Photos depicted Ps, and (a) by reason of the small number of believers associated with “the alleged Cult” Ps could be readily identified and referred to as believers of “the alleged Cult”, [31] (b) other persons (including relatives, friends and neighbours residing in/around San Tau Kok Village, Tai Po) were able to identify and refer to P9, P11 and P12 from the references to their English names alongside a reference to and a Photo of their residence at the 1st Premises in the Article and those readers would be able to identify/refer to P10 as P9’s wife, and (c) by reason of a reference to and a Photo of their residence at the 2nd Premises together with the Photos depicting P3 and P4 in the Article, other persons (including relatives, friends and neighbours residing in/around Fu Shin Estate, Tai Po) would be able to identify and refer to P3 and P4 after reading the Article. 44.In reply to the justification defence, Ps denied the Words in their natural and ordinary meaning merely bore the meanings Ds alleged. Ps reiterated their pleas in the ASoC, and further averred that:
45.Ps also denied the meaning of the Words under the Meaning Particulars was true in substance and in fact by reiterating their pleas in the ASoC and by further averring as follows:
46.Ps admitted the Words in their natural and ordinary meaning bore or were understood to bear the meanings set out in paragraph 39, 39(b), (d)(i), (e) and (g)-(i) and (k) above. In respect of the meaning in paragraph 39(j) above, Ps repeated that the Words in their natural and ordinary meaning bore or were understood to bear the meaning in paragraphs 39(b), (d)(i), (e) and (g)-(i) and (k) save and except that P1 in fact denied to D1’s reporter “the Church” practised wife switching and marriage matching/rearranging, not that he denied “the Church” “does not practise” wife changing and marriage matching. Ps claimed the “meaning” Ds pleaded in paragraph 39(b), (d)(i), (e), (g)-(j) and (k) above amounted to admission of Ps’ contentions in paragraph 44 above, but they were not true in substance and in fact (see paragraph 45 above). 47.Ps denied the justification defence or any reliance on section 26 of the Defamation Ordinance Cap 21. As regards the facts and matters Ds pleaded that went to the justification defence, Ps averred that:
48.Ps denied the words complained of by Ds constituted fair comment or comment on a matter of public interest, and claimed D1 was not entitled to rely on the defence of fair comment since the publication of the Article and Words was actuated by malice:
49.Ps also denied the contents of the Article were matters of public interest, or Ds were entitled to the defence of qualified privilege. Ps repeated some of the matters in paragraphs 44-47 above. VI. Ps’ 4TH SUMMONS 50.The dispute under Ps’ 4th Summons concerned Ps’ application to re-amend paragraph 9(1)(a), 9(2) and 9(3) of the AR (see paragraphs 18(a)(i) above) by the Disputed Re-amendments which had the effect of alleging that “the Church” as used in the AR (ie “the Lord Jesus Christ Church (主耶穌基督教會), a family church with orthodox Christianity belief – paragraph 9(1)(a) of the AR) was synonymous with “the Group” as used in the AD (ie “a religious group which is associated with the name and/or term “真理天城”” – see sub-paragraph (1) under the Meaning Particulars of Para 10 / AD) save and except Ps denied “the Church” had/has any association with the name and/or term “真理天城” (“Exception”). Ds opposed the Disputed Re-amendments, which Mr Lam accepted must stand or fall together as they were premised on the same grounds/reasons. 51.Generally speaking, all amendments of pleadings ought to be made for the purpose of determining the real question in controversy between the parties to any proceedings or for correcting any defect or error in any proceedings, and the court is not to punish parties for mistakes they made in the conduct of their cases unless it would cause injustice to the other party.[45] Both DHCJ Lok (as he then was) in Li Shiu To v Li Shiu Tsang & ors[46] and Recorder Horace Wong SC in Igal Dafini v CMA CGM SA[47] put in a caveat brought about by the Civil Justice Reform (“CJR”). Order 1A of the RHC makes clear that court will give effect to the underlying objectives when it exercises its powers, including increasing cost-effectiveness of litigation, ensuring a case is dealt with as expeditiously as is reasonably practicable, and promoting a sense of reasonable proportion and procedural economy in the conduct of proceedings. “If the amendment application is made in circumstances offending these underlying objectives, the court may have to balance all the factors in the case in determining whether to grant the application.”[48] Further, Order 20 rule 8(1A) of the RHC prescribes that “[the] Court shall not …… order a pleading to be amended unless it is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs”, and the burden and onus lies on the party applying for such an amendment to demonstrate so.[49] Hong Kong Civil Procedure 2018 states as follows:[50]
52.I have explained the relevant principles on applications for late amendment of pleadings in paragraphs 34-36 of the Reasons, which I adopt but not repeat here. Although the original trial had been vacated and the case had not been set down again for trial, there was no shying from the fact this was a late application as it was (a) well past the time for the original trial, and (b) well after opportunity (with time extensions) was given for Ps to file amended pleadings in reply to the AD. The latest round of amendments of pleadings was completed by February 2015, and in July and again in November 2015 Ps confirmed by their LQs no further amendments to pleadings were required and (as far as Ps were concerned) the present action was ready to be set down again for trial. But notwithstanding the CJR-driven edicts of efficiency and effectiveness, I accept the lateness in the present context was somewhat blunted by the need to deal with Ds’ 4th Summons, which meant the present action could not have been set down for trial until final disposal of both summonses. 53.In my view, notwithstanding the alleged reasons for the Disputed Re-amendments in the Lau Aff, the need to introduce the Disputed Re- amendments was a matter of Ps’ own making since they arose out of their understanding of the AD and/or matters raised in “reply” in Ps’ own pleadings:
54.Before I proceed to consider Ps’ ground for the Disputed Re-amendments in paragraph 53(c) above, it is useful to set out a few matters to put this ground in context:
I shall proceed to address both sub-paragraphs (c)(i) and (c)(ii) above, and turn first to the “meaning” D sought to justify in sub-paragraph (c)(i) above. 55.According to Gatley on Libel and Slander, the natural and ordinary meaning of disputed words is “the meaning in which reasonable people of ordinary intelligence, with the ordinary person’s general knowledge and experience of worldly affairs, would be likely to understand them. The question is what would the words convey to the mind of the ordinary, reasonable and fair-minded reader?”[51] The expression “natural and ordinary meaning” of words encompasses the direct and literal meaning of the disputed words, and an inferential meaning inherent in those words that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning that is capable of being detected in the language used.[52] This is contrasted to a true/legal innuendo where the defamatory meaning only arises because of extrinsic facts which are known to the recipients, and in this sense a true/legal innuendo only exists where the extended meaning arises from facts passing beyond general knowledge[53] such that extrinsic facts alleged to give rise to that meaning had to be pleaded and proved.[54] 56.As explained in paragraph 73 of the Reasons, generally speaking, in pleading and proving a defence of justification, a defendant (with limited exceptions) is not permitted to justify (a) a more serious meaning for the words complained of than that asserted by the plaintiff or (b) a meaning which is wholly distinct from that asserted by the plaintiff, but he is entitled to justify a shade of meaning or a less injurious meaning or any meaning which the words are reasonably capable of bearing. It was for this reason that a defendant is required to specifically plead the defamatory meaning that he seeks to justify. 57.Thus, the natural starting point would be the Article, but the Article never referred to “the Church” as defined in paragraph 9(1)(a) of the AR at all (see paragraph 17(a) above). Since the Article made no mention of “the Church” at all, the suggestion that “the Group” was synonymous with “the Church” (subject to the Exception) was not a meaning the Words were reasonably capable of bearing in the natural and ordinary sense on the basis of general and not extrinsic knowledge. 58.A careful study of the ASoC also showed Ps never pleaded that the Words in their natural and ordinary sense referred to “the Church” or meant Ps were members of “the Church”. Indeed, Ps never referred to “the Church” (as defined in paragraph 9(1)(a) of the AR – see paragraph 17(a) above) in paragraph 17 of the ASoC that set out the natural and ordinary meaning of the Words that Ps claimed were defamatory of them. Rather, the relevant pleas in paragraph 17(1)-(2) of the ASoC averred the Words meant and were understood to mean Ps were found to be believers and/or otherwise were involved in or associated with “a religious denomination under the name of “真理天城教派” (English Translation: “the Heavenly Kingdom of Truth Denomination”)”, which was a “heretical religious cult which is similar to 「The Children of God」 famous for their fornication” (see paragraph 36(a)-(b) above). Paragraph 17(1) defined this religious denomination and/or heretical religious cult as “the Cult” (see paragraph 36(a) above). So to put it in another way, Ps never pleaded the “the Cult” and “the Church” were synonymous terms. Indeed, as seen below, even when one read the ASoC and RAR Draft (ie inclusive of the Disputed Re-amendments) together, such pleadings still drew difference/distinction rather than synonymity between “the Cult” and “the Church”. 59.In such circumstances, what shades of meaning Ds could seek to justify were circumscribed by Ps’ pleas as to the meaning of the Words in their natural and ordinary sense, and it was not open to Ds to plead in the AD, whether expressly or implicitly, as part of its justification defence that “the Group” was synonymous with “the Church” (whether subject to the Exception or otherwise), which purported meaning of the Words was wholly distinct from the meaning Ps asserted in the ASoC. In any event, Ds never pleaded the Words bore or were understood to bear or were capable of bearing such meaning. Rather as an alternative defence, Ds in the AD sought to justify the meaning of the Words in the natural and ordinary sense (that were defamatory of Ps) inter alia that (a) “[there] was a religious group associated with the name/term “真理天城””, and (b) it was a religious cult. [55] It was this religious group associated with “真理天城” being a religious cult that was defined as “the Group” in the AD. Nowhere could one find any reference in the AD to “the Church”, which according to the AR was “the Lord Jesus Christ Church (主耶穌基督教會), a family church with orthodox Christianity belief” (see paragraph 17(a) above). 60.In my view, it was erroneous to say Ds as a matter of pleadings treated “the Church” (subject to the Exception or otherwise) and “the Group” as synonymous terms that referred to the religious body of which Ps were members. This was not what Ds averred as borne out by the pleadings themselves:
In my view, as explained above, there was plainly no synonymity in the pleadings between the two terms of “the Group” in the AD and “the Church” in the AR, which “meaning” must be viewed in their natural and ordinary sense. 61.Turning to the AR, since (a) Ps’ primary case on the natural and ordinary meaning of the Words as set out in the ASoC did not refer to “the Cult” as synonymous with “the Church” (whether subject to the Exception or otherwise), and (b) under the Meaning Particulars in Para 10 / AD Ds did not seek to justify the “meaning” of the Words in their natural and ordinary sense by allusion to “the Group” being synonymous with “the Church”, I am unable to see how Ps could “reply” to Ds’ allegation as to the “meaning” of the Words (in their natural and ordinary sense that Ds sought to justify) by averring “the Group” would equal to “the Church” (subject to the Exception). In my view, Ps could not seek to slip in by reply a “meaning” of the Words they did not even aver in the ASoC. 62.Turning to Ps’ pleas in reply to Ds’ justification defence that the “meaning” of the Words as pleaded in the AD was true in substance and in fact (see sub-paragraph 54(c)(ii) above), I note there was much commonality and/or synonymity between “the Cult” used in the ASoC and “the Group” used in the AD in contra-distinction to “the Church”. As alluded to in paragraphs 58-61 above, both “the Cult” and “the Group” were defined in the pleadings as a religious denomination/group associated with or under the name/term “真理天城” and as a religious cult. I agree with Mr Ho (a) Ds could not have adopted the term “the Cult” (as pleaded in the SoC) in their original Defence and had to coin the term “the Group” because at that stage Ds could not justify a meaning of the Words that the Group was a religious cult when they did not yet have the supplemental/further witness statements of Ngai, Tse, Yeung, Pang and Tam to hand, but (b) Ds by amendment pleaded such meaning in sub-paragraph (7) under the Meaning Particulars in Para 10 / AD when those supplemental/further statements became available. From that point onwards, Ps’ and Ds’ pleadings as to the meaning of the Words in their natural and ordinary sense showed that “the Cult” was practically synonymous with “the Group” but not with “the Church”. 63.The difference/distinction between “the Cult” / “the Group” and “the Church” was also inherent in Ps’ own pleadings:
In view of the above and the matters in paragraphs 58-61 above, I am unable to see any alleged common understanding between the parties all along that “the Group” was synonymous as “the Church” (subject to the Exception). In my view, the Disputed Re-amendments were quite inconsistent with paragraph 14(2) of the AR (even if the words “(which did not exist)” were to be ignored), which plea was/is still very much part of Ds’ pleadings, and also inconsistent with the ASoC that branded the Words to mean and to refer to the “Cult”, which I have found to have commonality and/or synonymity with “the Group”, but the ASoC did not even hint “the Cult” was synonymous with “the Church”. As explained in paragraph 51 above, an inconsistent amendment would not be allowed. 64.This was also echoed in paragraph 9(1)-(3) of the AR and RAR Draft. Ps pleaded paragraph 9(1) of the AR in “reply” to the meaning of the Words in their natural and ordinary sense as set out in sub-paragraph (1) under the Meaning Particulars in Para 10 / AD that Ds sought to justify (ie “[there] is a religious group which is associated with the name and/or term “真理天城” (the “Group”)”):
In a nutshell, Ps’ pleaded case (first made more than 6 years ago in September 2011) was that (i) “the Cult” and “the Group” did not exist, (ii) “真理天城 (the Heavenly Kingdom of Truth Denomination)” was merely a website forum of which some editors (including P1) were members of the Church but had no real connection with the Church, and (iii) Ps were members of “the Church”. 65.In paragraphs 9(2)-(3) of the AR, Ps replied on the “meaning” of the Words in their natural and ordinary sense set out in sub-paragraphs (2)-(3) under the Meaning Particulars in Para 10 / AD that Ds sought to justify:
In a nutshell, Ps’ pleaded case (first made more than 6 years ago in September 2011) was (i) “the Group” did not exist, and (ii) Ps were equal members and P1 was an elder of “the Church”. 66.Plainly, by the AD and AR, Ps clearly drew careful distinction between “the Group” and “the Church”. The former was a religious cult associated with the name/term “真理天城”, but the latter was a family church that was not a religious cult and not associated with the name/ term “真理天城”. But Ds had no objection to and the Master allowed Ps to re-amend the AR by removing the averments in paragraphs 64(a), (b) and (i) and 65(a) above. Therefore, but for the Disputed Re-amendments, Ps’ revised pleadings would have averred that (1) Ps were members of “the Church”[60] but not “the Cult”[61], (2) “真理天城 (the Heavenly Kingdom of Truth Denomination)” was merely a website forum of which some editors (including P1) were members of the Church but it had no direct/official connection with the Church, (3) P1/P2 were leader/member of the Church, and (4) it was still incorrect to refer to P1 as deacon of the Church. It was quite clear from (1) above that even the undisputed re-amendments in the RAR Draft drew a careful distinction between “the Cult” (which I have found to have commonality and synonymity with “the Group”) and “the Church”. This reinforced the above analysis that there was no synonymity between “the Group” and “the Church” in the parties’ pleadings, and in the circumstances, the suggestion of synonmity in the Disputed Re-amendments raised an inconsistency. 67.Mr Lam argued Ps must be entitled to refer to “the Church” in reply to Ds’ pleas in relation to “the Group” in Para 10 / AD. But I note Ds quite fairly took no objection to Ps’ pleas concerning “the Church” in paragraphs 9(1)-(3) of the RAR Draft as summarised in paragraph 66(1)-(4) above. The only matter that drew Ds’ ire was the suggestion that their averment of “the Group”, which natural and ordinary meaning of the Words they sought to justify, was the same as “the Church” (subject to the Exception) which was not their pleaded meaning at all. 68.For the above reasons, there was no basis for Ps to introduce by way of re-amendment the extrinsic matter of equating “the Group” with “the Church” (subject to the Exception) either on Ps’ primary case that the Words in their natural and ordinary meaning were defamatory or on Ps’ response to Ds’ alternative defence that the particularised shades of meaning or less injurious meaning could be justified. Since the Disputed Re-amendments were proposed in “reply” to the AD, they could not stretch (or be inconsistent with) Ps’ primary case set out in the ASoC, and certainly they could not give colouring to Ds’ justification defence that Ds never asserted in the AD. As analysed above, there was nothing express or implicit in the existing pleadings to the effect that “the Group” was synonymous with “the Church”, and imposing the Exception on the latter in fact highlighted its difference rather than its synonmity with the former. 69.In my view, the Disputed Re-amendments purported to raise new/inconsistent contentions that was not in “reply” to the AD, and in this respect I bear in mind there was no proposed re-amendment to P’s primary case as pleaded in the ASoC. As explained above, the Church, according to Ps, had/has no association with the name/term “真理天城” and was not a religious cult. In my view, to allow the Disputed Re-amendments would introduce impermissible confusion and contradiction to Ps’ case that did not rely on any plea of true/legal innuendo, which would be embarrassing and/or unfair to Ds, and would not be necessary for fairly disposing of the cause or matter or for saving costs. The Disputed Re-amendments must be refused, and the Master was correct to disallow them. In the circumstances, Ps’ appeal against the Master Order in respect of Ps’ 4th Summons in this respect must be dismissed. VII. Ds’ 4TH SUMMONS 70.In dealing with Ds’ 4th Summons, both Mr Lam and Mr Ho agreed (a) the Impugned AR in respect of the Concern Group in paragraph 14(1)(d) of the AR (“Concern Group Plea”) and the biblical references in paragraphs 14(3)(b), 14(3)(f)(i)-(iii), 14(3)(g)(i), 14(3)(h)(iii) and 14(3)(k) (ii)-(iii) of the AR (“Biblical References Pleas”), and (b) the Impugned WS in respect of matters relating to the Church (see paragraph 17(a) above) and biblical references (see paragraph 17(b) above) would stand and fall together by the grouped pleas/statements as a matter of broad principle without minute study of individual words, phrases, sentences and passages. The fate of other parts of the Impugned WS (see paragraph 17(c)-(d) above) depended on the outcome of the application to strike out matters in (b) above. Mr Ho accepted the burden was on Ds to show Ps should not be allowed to raise those pleas and to lead evidence on those matters. 71.I first turn to Ds’ application to strike out the Biblical References Pleas that essentially averred biblical references and religious belief in relation to inter alia casting out of demon (paragraph 14(3)(b) of the AR), communicating directly with Jesus and the Holy Father (paragraph 14(3)(f) (iii) of the AR), prophet/prophetess (paragraph 14(3)(f)(i)-(ii) of the AR), Millennium (paragraph 14(3)(g)(i) of the AR), rapture (paragraph 14(3)(h) (iii) of the AR) and Twelve Chosen (paragraph 14(3)(k)(ii)-(iii) of the AR). 72.Ps’ case against Ds rested on the natural and ordinary meaning of the Words that were allegedly defamatory of Ps. I have explained in paragraph 55 above such natural and ordinary meaning may include inferences, implications or indirect meanings which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The important thing to note is that such meaning does not require the support of extrinsic facts passing beyond general knowledge.[62]I have also explained in paragraph 73 of the Reasons and paragraph 56 above that, generally speaking, the defendant in raising a defence of justification is not permitted to justify (a) a more serious meaning for the words complained of than that asserted by the plaintiff or (b) a meaning which is wholly distinct from that asserted by the plaintiff. But Ds still had to justify the Words by natural and ordinary rather than innuendo meaning. 73.In the pleaded “meaning” under the Meaning Particulars in Para 10 / AD that Ds sought to justify, there was no reference to casting out of demon, communicating directly with Jesus and the Holy Father, prophet/ prophetess, Millennium, rapture and Twelve Chosen at all. So neither Ps nor Ds could introduce extrinsic facts (eg biblical references and Christianity beliefs in the Biblical References Pleas) to establish the natural and ordinary meaning of the Words that were allegedly to be defamatory. The position on evidence is clear: [63]
It was likewise clear that Ps’ state of mind and subjective interpretation of the Words were irrelevant. “Where the claimant relies on the natural and ordinary meaning he is equally subject to the rule that evidence cannot be given as to meaning. Thus he cannot be asked what he understood the words to mean. The claimant may be able to give evidence on meaning, if he has pleaded an innuendo ……” (my emphasis), [64] which Ps did not so plead. In any event, although “…… the burden is generally upon the claimant to satisfy the jury that the words in their natural and ordinary meaning convey a defamatory imputation ……” (but it is unnecessary to prove anyone did understand the words in the defamatory sense alleged),[65] in a defence of justification “[the] onus is upon the defendant to prove the truth of the words in their natural and ordinary meaning ……”[66] 74.In the course of submissions, Mr Lam accepted the aforesaid principles in relation to the natural and ordinary meaning of words alleged to be defamatory, but suggested (a) sub-paragraphs (1)-(7), sub-paragraphs (1)- (5) and sub-paragraphs (1)-(3) under “Particulars of facts and matters relied upon in support of the plea of justification” (“Facts/Matters Particulars”) in Para 10 / AD respectively for the defences of justification, fair comment and Reynolds privilege were “no doubt to support Ds’ allegation that Ps’ group was a religious cult (邪教)”, and (b) the Biblical References Pleas were in reply to Ds’ “factual allegations” without which Ps would not be able to put forward a complete response, which would be unfair to them. 75.Given Mr Lam’s contentions, it is necessary to revisit the precise pleas/averments in the AD. As explained in paragraph 56 above, Ds could justify different shades of meaning or less injurious meanings of the Words. In the “meaning” detailed under the Meaning Particulars in Para 10 / AD, Ds did not (as Mr Lam suggested) seek to justify any meaning that the Group was “邪教” (heretical religious cult – see paragraph 15(3) of the ASoC and sub-paragraphs (1) and (7) under the Meaning Particulars of Para 10 / AD) was true in substance and in fact. Rather, Ds sought to justify the meaning that the Group was a religious cult (see sub-paragraph (7) under the Meaning Particulars of Para 10 / AD). Further, in sub-paragraph (11) under the Meaning Particulars in Para 10 / AD, Ds did not seek to justify any meaning that P2 was actually a prophetess of the Group, but rather to justify the meaning that P2 admitted she was such. 76.Still further, Ds did not seek to justify any meaning that casting out of demon, being prophet/prophetess, communicating directly with Jesus and the Holy Father, Millenium, rapture and Twelve Chosen were something mysterious or non-orthodox. This did not feature as any meaning that Ds wished to justify as true in substance and in fact. What was pleaded in sub-paragraph (3) under the Facts/Matters Particulars of Para 10 / AD was that Ngai told D1’s staff certain matters without ascribing any meaning, definition or explanation to the terms or activities Ngai mentioned,[67] and without seeking to justify that they were mysterious or unorthodox. But Ps’ reply in paragraph 14(3) of the AR ascribed meaning, definition and explanation to the terms or activities Ngai mentioned by pleas of biblical references and Christianity belief, and suggested they had solid biblical basis. Since, as Mr Ho conceded, for the purpose of the defence of justification Ds in the AD did not ascribe meaning or question the orthodoxy of these matters, I am unable to see any necessity or pertinence in raising this fresh and distinct issue in reply. 77.Mr Lam suggested Ps were entitled to plead in reply to Ds’ allegation that Ps’ Group was “邪教” (see paragraph 76 above). In fact, Ds only pleaded “換妻邪教” as fair comment (see paragraph 40 above) and not as a meaning of the Words that they sought to justify as true in substance and in fact. 78.In relation to the defence of fair comment, Gatley on Libel and Slander explained such defence had 5 elements:
79.As to the question whether the Words in paragraph 40(a)-(b) above were statements of fact or expressions of opinion, it would be “decided upon a consideration of the words themselves. It is not permissible to have regard to some other article, letter, document or publication in response to which the words were written which have not been repeated or summarised on the defendant’s words. It is submitted, however, that the words must be appraised within their entire relevant context in adjudicating whether they are fact or comment. No oral evidence is admissible on this issue” (my emphasis).[69] As to the fairness of the comment, this is to be judged objectively, applying the test whether any man, however prejudiced and obstinate, could honestly hold the view expressed by the defendant on the facts known to him.[70] Thus, the burden of proof fell on Ds on the facts known to them in contra-distinction to Ps’ state of mind and/or subjective interpretation of the Words. 80.Where, as here, Ps alleged malice to defeat the plea of fair comment (ie Ds were not expressing genuine opinion), the burden was on Ps to establish malice, and Ds were to give evidence to rebut the charge.[71] Although Ps could rely on extrinsic evidence (ie something outside the Article),[72] here Ps merely relied on the facts and matters pleaded in paragraph 18 of AR to infer malice (see paragraph 48 above), and in making the 2 points that (a) the Article was grossly untrue/false and D1 knew/believed what was published in the Article and Words was untrue and/or not caring whether what was published was true or false and (b) excessive language was used in the Article and the Words, Ps relied on inter alia paragraphs 8-14 of the AR, which would include the Biblical Reference Pleas. But there was no plea in paragraphs 18-19 of the AR that Ds were aware of Ps’ state of mind, Ps’ subjective interpretation of the Words, or Ps’ subjective understanding of the biblical references and Christianity belief when they published the Article, or Ds shared Ps’ understanding of the Words, biblical references and Christianity belief and yet published the Article with an improper motive. In such circumstances, Ps had no pleaded basis to use the Biblical References Pleas to establish malice to defeat the defence of fair comment. 81.In respect of the defence of Reynolds privilege, this is a form of qualified privilege for publication that concerns a matter of public interest where there has been responsible journalism on the part of the defendant. Lord Nicholls in Reynolds v Times Newspapers Ltd[73] set out a non-exhaustive list of the 10 “Nicholls factors” as follows:[74]
82.I have no doubt that the burden was on Ds to show they had complied with the standards of responsible journalism. As explained in Jameel v Wall Street Journal (No 1), it is not relevant to qualified privilege whether the publication is true or not.[75] Further, the defence of Reynolds privilege cannot be defeated by malice. As Gatley on Libel and Slander states,
Indeed, Eady J in Miller v Associated Newspapers Ltd said “[if] a particular publication passes the privilege test now [ie under Reynolds], it is very difficult to envisage circumstances where there would be room for it to be overridden by malice”.[78] 83.In light of the above, I am unable to see how the Biblical References Pleas, being matters of Ps’ state of mind, subjective interpretation of the Words, and subjective understanding of biblical references and/or Christianity belief or being matters of extrinsic facts would be of any relevance to any rebuttal of the defence of Reynolds privilege. 84.Given the above analysis, there was no basis at all to introduce the Biblical References Pleas in “reply” to or rebuttal of the defences of justification, fair comment and Reynolds privilege in the AD. In coming to the above decision that the Biblical References Pleas ought to be struck out, I (like the Master) consider there was no need to consider the issue of justiciability of the subject matter of those pleas. But I will deal with it briefly for completeness. Mr Lam submitted that fairness required Ps to be allowed to refer to biblical references and Christianity belief and to explain what those terms/activities meant to them and to further explain that such terms/activities had solid biblical basis and were not something mysterious or non-orthodox. As I have explained above, these matters had no relevance in “reply” to the defences pleaded in the AD. But if Ps introduced the Biblical References Pleas for other purpose, Mr Ho argued it would be tantamount to inviting the court to adjudicate on whether the casting out of demon, whether P2 was in fact a prophetess, whether P1/P2 (if they are in Hong Kong at the time of the 1st resurrection) will be the Millennium king and queen of Hong Kong, and whether rapture and the Twelve Chosen had solid biblical basis, but these matters were non-justiciable by the secular court that respects believers of different faiths. 85.Mr Lam referred to Shergill & ors v Khaira & ors[79] that concerned questions of who had power to appoint and remove trustees, who were resident and held property in England, the trust deeds having given such power to the First Holy Saint (spiritual leader of the sect by believers adhering to his teachings) or his “successor”. After the First and Second Holy Saints died, dispute arose over who was the “successor”. It was held although the courts do not adjudicate on the truth of religious beliefs or validity of particular rites, where a claimant asks the court to enforce private civil rights and obligations which depend on religious issues, the judge can determine such religious issues as are capable of objective assessment and necessary to decide the disputed legal rights, including questions of disputed doctrine (see also paragraph 78 of the Reasons). But the above analysis showed the adjudication of Ps’ claim herein did not depend on the religious issues raised in the Biblical References Pleas, which were not necessary to decide the alleged tort of defamation. I am not persuaded Shergill & ors took Ps’ case on the Biblical References Pleas any further. 86.Turning to the Concern Group Plea, such plea averred the Concern Group was a controversial organisation within the Christian community that had been criticised as being too keen in labelling others as cults or heresies without due inquiries, investigations or basis, and without regard to theological differences that might properly exist amongst Christians of different denominations. 87.Sub-paragraph (1) under the Facts/Matters Particulars put forward the Concern Group as the source/informant that gave the lead for Ds’ journalistic investigation for the Article rather than put forward the Concern Group as the contents of the Article or the Words themselves. So such plea would only have been pertinent to alleged rebuttal of the defence of Reynolds privilege, and would merely be factual background rather than going to the heart of any defence based on (a) the natural or ordinary meaning of the Words that Ds sought to justify (ie the justification defence) or (b) any genuine opinion on a matter of public interest (ie the fair comment defence). After all, the Concern Group was not mentioned in the Article. 88.Mr Lam’s point was a simple one: if Ds were allowed to plead allegation by a member of the Concern Group that “the Group” was a fringe Christian group that the public should be warned about, why should Ps be precluded from pleading that the Concern Group itself was a controversial organisation within the Christian community criticised by many as being keen to label others as cults or heresies? 89.In my view, the answer lies in the law which was not cited by Mr Lam or Mr Ho. In GKR Karate (UK) Ltd v Yorkshire Post Newspapers Ltd & ors,[80] May LJ referred to inter alia item 3 of the Nicholls factors (ie the source of the information) and said as follows at pp 2578-2579:
90.GKR Karate (UK) Ltd was cited with approval by the English Court of Appeal in Jameel v The Wall Street Journal Europe SPRL.[81] Simon Brown LJ said at p 106 as follows:
91.This is nicely summarised in Gatley on Libel and Slander as follows:[82]
92.Thus, as regards the source/informant of the published material, it was what appeared to the defendant at the time that is relevant.[83] Further, “[one] must be realistic about what the defendant can do in these cases, however, since a newspaper is not a secret service and if the defendant has pursued what other inquiries are open to him he is not deprived of the protection of privilege because the original source had an obvious axe to grind”.[84] 93.Gatley on Libel and Slander also reminds that since it is generally not the truth of the allegations as such that is in issue in a Reynolds public interest case, so the important consideration in determining whether the defence of Reynolds privilege is met is what steps the journalists took to verify the allegations, hence it is the conduct of the publisher/defendant by reference to the circumstances known at the time of the publication (not information that subsequently came to his attention) that will decide the question.[85] That is why it has been said that in many cases where there is a Reynolds or public interest defence, evidence from the claimant on this issue will unnecessary or rare. Gatley on Libel and Slander[86] cited Charman v Orion Publishing Group Ltd where Gray J observed:[87]
94.Bearing in mind these principles, it was plainly redundant and inappropriate to plead the Concern Group Plea when there was no averment that Ds knew of the matters alleged, and a plea that went to the issue of actual or objective reliability of the source was not permissible. Plainly, the Concern Group Plea was not to address the question whether or not Yeung or the Concern Group gave the relevant information to D1’s staff for Ps already pleaded they had no knowledge whatsoever about any contact between Ds’ staff with Yeung or anyone from the Concern Group, and were unaware of anything that might have been said by Yeung (see paragraph 47(a)(i) above). Ds fairly took no objection to pleas in the AR that dealt with steps taken or omission of steps by Ds in investigating/verifying the lead. Further, Yeung / Concern Group was not an anonymous source. The Concerned Group Plea ought to be struck out. 95.In the circumstances, I agree with the Master that the Impugned AR were pleas on matters that were inadmissible, irrelevant and/or unnecessary for the eventual trial on the issues raised by Ps’ case (ie whether the words were defamatory in their natural and ordinary meaning) and/or raised by Ds’ case (ie denial of Ps’ claim and the defences of justification, fair comment and Reynolds privilege). The Impugned AR ought to be struck out. This aspect of the Appeal must also be dismissed. 96.Turning to the Impugned WS, the starting point is that pursuant to my order set out in paragraph 7 above Ps were only given leave to reply to the amendments in the AD and the supplemental/further witness statements of Ngai, Tse, Pang, Yeung and Tam. If Ps wished to adduce statement evidence outside the scope of such “reply”, they had to take out independent application for leave to serve supplemental/additional witness statements, and they were not entitled to slip in extraneous matters under the guise of “reply”. 97.Both Mr Lam and Mr Ho agreed that for the court to deal with the Impugned WS it would unnecessary for this court to delve into the specific sentences, phrases and words of the impugned passages in each witness statement (see paragraph 70 above), and that I should deal with the matter on broad principle. Indeed, Mr Lam accepted the fate of the Impugned WS necessarily followed that of the Disputed Re-amendments and Impugned AR. I shall proceed on such basis, but that said I have read and considered impugned passages in coming to my conclusions below. 98.As explained in paragraph 17 above, the focus of Ds’ complaints against the Impugned WS concerned the Church as well as biblical references and Christianity belief. Given the striking out of the Biblical References Pleas and refusal of the Disputed Re-amendments, I agree the corresponding matters in the Impugned WS that gave detail as to the history/ideology of the Church and various biblical references were irrelevant and unnecessary. Further, they were not in “reply” to the defences raised in the AD. The Church was not any of the Ps, and there was no claim by the Church against Ps. There was no averment/reference in the Article to the Church. Neither Ps nor Ds averred the natural and ordinary meaning of the Words that was defamatory of Ps (whether as claimed by Ps or raised in justification by Ds) concerned the Church. I have also explained the irrelevancy of the biblical references and Christianity belief in purported “reply” to the defences pleaded in the AD, and the fallacy of the suggestion that “the Group” was synonymous with “the Church” (subject to the Exception). I agree the Impugned WS concerning matters relating to the Church and biblical references (set out in paragraphs 17(a)-(b) above as adjusted by the Master Order) ought to be struck out. 99.Since the Concern Group Plea was struck out as being inadmissible, it followed the corresponding paragraphs 224 and 226 of the witness statement of 藍家銘 (see paragraph 17(c) above) ought to be struck out as well. Further, since parts of the witness statement of 藍家銘 were struck out (see the above paragraph), Ps’ other witnesses could no longer adopt those parts of the witness statement of 藍家銘, and the corresponding passages in the witness statements of such other witnesses (referred to in paragraph 17(d) above as adjusted by the Master Order) ought to be struck out too. 100.For all of the above reasons, I see no basis to disturb the Master Order in striking out the Impugned WS, which decision I agree. The Appeal against the Master Order in this respect is also dismissed. VIII. CONCLUSION 101.The Appeal is dismissed. I grant the following consequential orders:
102.I will ask my clerk to provide a copy of this Decision to the Master with directions for the Master to fix a CMC (with consequential directions as he may deem appropriate) as soon as practicable. In respect of the forthcoming CMC, the Master and the parties should note that the Glossary referred to in paragraph 128 of the Reasons would no longer be needed for the eventual trial, especially in light of the clarification above and the eventual provision of proper English translations of documents and witness statements as alluded to in paragraph 127 of the Reasons. 103.There is no reason why costs should not follow event. I grant a costs order nisi that costs of and occasioned by the Appeal be paid by Ps to Ds including all costs reserved if any (save and except that in respect of the hearing bundle Ds were only entitled to recover half of the costs of and occasioned by the preparation, lodgment and service of the hearing bundle), and such costs shall be summarily assessed. Ds had put in a lot of historical documents in the hearing bundle that were not pertinent to Ps’ 4th Summons, Ds’ 4th Summons and Appeal. It was a waste of costs and effort, and more importantly it was burdensome on Ps and the court. 104.I also give directions for the summary assessment of costs as follows:
Mr Simon Lam, instructed by Tony Lam & Co, for the 1st to 12th plaintiffs Mr Raymond Ho, instructed by Hampton, Winter & Glynn, for the 1st and 2nd defendants [1] save that the ASoC Draft referred to in the Reasons did not yet adopt the certified English translation of the Words in the Article [2] save and except the sentence “Yeung met at least five former members of the Group” and sub-paragraphs (i) and (ii) in sub-paragraph (1) under “Particulars of facts and matters relied upon in support of plea of justification” in paragraph 10 of the AD Draft were redacted and disallowed [3] save and except certain parts as particularised in paragraph 6(a) of my order dated 15 October 2014 were redacted and disallowed [4] unless Ds do within 35 days discover and disclose a copy of the statement given by Pang to the police as referred to in the 4th sentence of paragraph 37 of the Pang Draft, the last 3 sentences of paragraph 37 of the Pang Draft shall not be adduced or be admissible as evidence at trial notwithstanding the leave granted [5] save and except the 2nd sentence of paragraph 6 and paragraphs 43-44 of the Tse Draft were redacted and disallowed [6] save and except the 3rd and 4th sentences of paragraph 12, paragraphs 13-16, the 2nd sentence of paragraph 19 and paragraphs 20-48 of the Yeung Draft were redacted and disallowed [7] see paragraph 9(1)(a) of the AR [8] see sub-paragraph (1) under “Particulars of Meaning” in paragraph 10 of the AD [9] see Hong Kong Civil Procedure 2018 Vol 1 para 58/1/2 at p 1118 [10] the court may at any stage strike out pleadings or any parts thereof on the ground that it (a) discloses no reasonable cause of action, (b) it is scandalous, frivolous or vexatious; (c) it may prejudice, embarrass or delay the fair trial of the action; or it is otherwise an abuse of the process of the court [11] Vol 1 para 18/19/4 at pp 476-477 [12] see Byjoy Ltd v Thorogood Estates Ltd [1985] 2 HKC 746, 758 [13] see Hong Kong Civil Procedure 2018 Vol 1 para 18/19/5 at pp 477-478 (see Order 18 rule 19(2) of the RHC) [14] Vol 1 para 18/19/7 at p 479 [15] To J in Falcon Private Bank Ltd v Borry Bernard Edouard Charles Limited & anor HCA1934/2011 (unreported, 9 July 2012) at para 212(d) stated that: “…… In an appropriate case, the court ought not to be slow to exercise the power to strike-out in order to dispose of proceedings which are hopeless and without foundation in law. In those cases, such power is required by the very essence of justice to be exercised, so as to prevent the defendant from being harassed and put to expense by frivolous vexatious or hopeless claims: Riches v DPP [1973] 1 WLR 1019 at 1027” [16] see also Hong Kong Civil Procedure 2018 Vol 1 para 38/2A/13 at p 851 [17] HCCW350/2004, Barma J (as he then was) (unreported, 11 July 2005) [18] see paragraph 17(1) of the ASoC [19] see paragraph 17(2) of the ASoC [20] see paragraph 17(3) of the ASoC [21] see paragraph 17(4) of the ASoC [22] see paragraph 17(8)-(9) of the ASoC [23] eg paragraph 15(2), (8)-(10), (15)-(16), (22), (25), (29), (36), (41) and (42) of the ASoC [24] see paragraph 15(3) and (7) of the ASoC [25] see sub-paragraph (1) under the Meaning Particulars of Para 10 / AD [26] see sub-paragraphs (7)-(8) under the Meaning Particulars of Para 10 / AD [27] see sub-paragraph (2) under the Meaning Particulars of Para 10 / AD [28] see sub-paragraphs (3) and (11) under the Meaning Particulars of Para 10 / AD [29] Mr Lam, counsel for Ps, in his written submissions suggested Ds did not aver “Ps practiced wife switching or marriage fixing” as a meaning they sought to justify, but this contention was not understood in light of paragraph 39(g) to (i) above [30] ie “the organisation of a religious group in Hong Kong and the practices engaged by the group”, and “…… an active fringe Christian group, adopting questionable religious practices, and the public should be informed of it” (see paragraph 12 of AD) [31] see paragraph 7(2) of the AR [32] see paragraph 8(1) of the AR [33] see the preamble of paragraph 9(1) of the AR [34] see paragraph 9(1)(a) of the AR [35] see paragraph 9(1)(d) of the AR [36] see paragraph 9(2) of the AR [37] see paragraph 9(3) of the AR [38] see paragraph 14(1)(d) of the AR [39] see paragraph 14(3)(b) of the AR [40] see paragraph 14(3)(f)(i)-(iii) of the AR [41] see paragraph 14(3)(g)(i) of the AR [42] see paragraph 14(3)(h)(iii) of the AR [43] see paragraph 14(3)(k)(ii) of the AR [44] see paragraph 14(3)(k)(iii) of the AR [45] see Order 20 rules 5(1) and 8(1) of the RHC and Hong Kong Civil Procedure 2018 Vol 1 para 20/8/6 at pp 512-513 [46] HCA416/2003 (unreported, 14 August 2012) paras 14 and 16 [47] [2013] 2 HKLRD 73, 81 [48] see Li Shiu To at para 16 [49] see Hong Kong Civil Procedure 2018 Vol 1 para 20/8/4 at p 512 [50] see Hong Kong Civil Procedure 2018 Vol 1 para 20/8/24 at pp 522-523 [51] 12th ed (2013) para 3.17 at pp 124-125 [52] see Gatley on Libel and Slander 12 ed (2013) para 3.18 at pp 125-128 and Kam Lan Koon & ors v Tong Cun Ming HCA336/2012 (unreported, 9 October 2014) paras 15-19 [53] see Gatley on Libel and Slander 12 ed (2013) para 3.21 at pp 130-132 [54] see Kam Lan Koon & ors at paras 20-23 (see Order 82 rule 3(1) of the RHC) [55] see sub-paragraphs (1) and (7) under the Meaning Particulars of Para 10 / AD [56] see paragraph 9(1) of the AR [57] see paragraph 9(1)(b) of the AR [58] see paragraph 9(1)(c) of the AR [59] see paragraph 9(1)(d), 9(2), 9(3), 9(4), 9(7), 9(8) and 14(2)(b) of the AR [60] see paragraph 9(1)(a) of the RAR Draft [61] see preamble of paragraph 9(1) of the RAR Draft [62] see Jones v Skelton [1963] 1 WLR 1362, 1370-1371 [63] see Gatley on Libel and Slander 12th ed (2013) para 32.26 at p 1238 [64] see Gatley on Libel and Slander 12th ed (2013) para 32.30 at p 1242 [65] see Gatley on Libel and Slander 12th ed (2013) para 32.32 at p 1243 [66] see Gatley on Libel and Slander 12th ed (2013) para 33.12 at pp 1277-1278 [67] such as casting out of demon, prophet/ prophetess, direct communication with Jesus and the Holy Father, Millennium, rapture and Twelve Chosen [68] 12th ed (2013) para 12.2 at pp 424-425 [69] see Gatley on Libel and Slander 12th ed (2013) para 33.20 at p 1282 [70] see Gatley on Libel and Slander 12th ed (2013) para 33.21 at pp 1282-1283 [71] see Gatley on Libel and Slander 12th ed (2013) para 33.21 at pp 1282-1283 [72] see Gatley on Libel and Slander 12th ed (2013) para 32.38 at p 1248 [73] [2001] 2 AC 127, 205 [74] see Gatley on Libel and Slander 12th ed (2013) para 15.8 at p 649 [75] [2004] EMLR 6, 89 at pp 105-106 – not cited by Mr Lam or Mr Ho (see also Reynolds at p 406 and Gatley on Libel and Slander 12th ed (2013) para 32.49 at pp 1253-1255) [76] 12th ed (2013) para 15.21 at pp 667-669 [77] 12th ed (2013) para 17.21 at pp 755-758 [78] [2004] EWHC 2799 QBD para 10 (see also Jameel (Mohammed) & anor v Wall Street Journal Europe SPRL [2007] 1 AC 359, 381) – not cited by Mr Lam or Mr Ho [79] [2015] AC 359, 382-383 (which case I first referred the parties to at the 2nd PTR) [80] [2000] 1 WLR 2571 [81] [2004] EMLR 6 at p 89 [82] 12th ed (2013) para 32.49 at pp 1253-1254 [83] see Gatley on Libel and Slander 12th ed (2013) para 15.11 at p 653 [84] see Gatley on Libel and Slander 12th ed (2013) para 15.11 at p 654 (citing Charman v Orion Publishing Group Ltd [2008] EMLR 16) [85] see Gatley on Libel and Slander 12th ed (2013) paras 15.11 and 32.49 at pp 655 and 1254-1255 [86] see Gatley on Libel and Slander 12th ed (2013) para 32.50 at pp 1255-1256 [87] [2007] 1 All ER 622 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under HCA 785/2011