Dr Chan Hin Keung Henry v. Apple Daily Ltd and Others
Read the full judgment text of DCCJ 1474/2013 on BabelCite. This District Court judgment was delivered on 22 March 2018.
1. On 26 November 2012, Apple Daily published a story on page A8. The story takes up more than half of the page and comprises three articles, four photographs and two tables. All these appear under a big heading printed horizontally across the page:
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DCCJ 1474/2013 [2018] HKDC 219 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 1474 OF 2013 ---------------------------
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-------------------- JUDGMENT -------------------- INTRODUCTION 1.On 26 November 2012, Apple Daily published a story on page A8. The story takes up more than half of the page and comprises three articles, four photographs and two tables. All these appear under a big heading printed horizontally across the page:
2.The first article of the story (“the 1st article”) refers to a company known as “CKB168”, and 「嘉高賓尼」 in Chinese, running a pyramid scheme. Investors in this company allegedly could earn substantial commission, potentially reaching US$100 million. It reports, amongst other things, two cases where members of the public had invested money in the online educational courses offered by the company. 3.The second article of the story (“the 2nd article”) appears under the following heading:
4.The 2nd article refers to the plaintiff in this action, Dr Chan Hin Keung Henry, a few times. It is these references which have given rise to the present libel action. 5.The 2nd article reveals that a number of companies in Hong Kong bore the name of either “CKB168” or 「嘉高賓尼」. One of them was CLAP Group Ltd (嘉高賓尼(集團)有限公司). Dr Chan is identified as one of the four directors and shareholders of this company. 6.The third article of the story (“the 3rd article”) describes features of recent pyramid schemes in Hong Kong and common tactics employed by them. 7.A copy of the story is annexed to this judgment, mainly to show the layout of the articles. The material words relied on by the parties will be set out below. 8.The Apple Daily website carried the story on the same day. 9.Dr Chan is a chiropractor by profession and has practised in Hong Kong since 1994. He is also a consultant doctor at Kiang Wu Hospital in Macau. In addition, he holds a number of positions:
10.Dr Chan says that he found out about the story when some of his friends contacted him that day and asked him about his involvement in a pyramid scheme. He was shocked. Similar queries followed over the next few days, including those from the chiropractor profession and contacts from the honorary consul community. 11.Ms Ng Ka Wai (“Bonnie Ng”), the office manager of Dr Chan’s chiropractic practice in Causeway Bay, also received enquiries from two chiropractors, asking about the story and what Dr Chan had done. 12.On the day of the story, the following messages were posted online:
13.Dr Chan says that the story is seriously defamatory of him. Through his solicitors, he sent two rounds of letters to the defendants in December 2012 and February 2013 demanding, amongst other things, a full apology and an undertaking not to repeat the defamatory words. Having received no reply, he commenced the present action in April 2013. 14.At trial, Dr Chan seeks injunctive relief and claims general damages in the sum of $800,000 and aggravated damages of $200,000. 15.The 1st defendant is the registered proprietor and publisher of Apple Daily and Mr Cheung Kim Hung, the 2nd defendant, the newspaper’s editor-in-chief. The 3rd and 4th defendants may broadly be described as the owner/registrant of websites related to Apple Daily. 16.The defendants deny liability. They say that the story bears no meaning which is defamatory of Dr Chan at all. But, even if it does, the defences of justification and Reynolds privilege apply. It is not in dispute that if liability is established, all the four defendants are liable together. In this judgment, I shall refer to them collectively as either “the defendants” or “Apple Daily”, as the context requires. 17.This case primarily turns on two matters. First, what meaning is to be attributed to the articles as far as Dr Chan is concerned. The choice is between the defamatory meaning pleaded by Dr Chan (referred to as the Chase level one meaning in submissions), two lesser defamatory meanings discussed at trial (namely, the Chase level two and level three meanings) and the non-defamatory meaning pleaded by Apple Daily. If the court rules in favour of any of the three defamatory meanings, the issue then becomes whether Apple Daily can successfully invoke the defence of Reynolds privilege. Justification is not really a viable defence and will be quickly dealt with below. 18.There are a number of factual disputes. They mainly revolve around what investigation Apple Daily had conducted, and the manner in which it had been done, when compiling the story. This has an important bearing on the issue of whether the newspaper has met the standard of responsible journalism in the context of Reynolds privilege. 19.Dr Chan testified at trial and called Bonnie Ng as his witness. 20.The defendants called four witnesses.
THE ARTICLES 21.The story is comprised of three articles. (It is more accurate to say that there are five articles in total. But throughout the pleadings and in submissions, the plaintiff has referred to three articles only, apparently treating three of the five articles collectively as “the 1st article”. I shall follow that approach in this judgment.) 22.According to the 1st article, while the business of CKB168 was the sale of four online educational courses sourced from a Canadian company called Cackleberries, each costing US$1,380, it was in effect promoting a pyramid scheme, where participants could allegedly earn substantial commission (of up to 85%) and bonus points by purchasing the courses and introducing new members to join the scheme. The income could potentially reach US$100 million and the bonus points could be converted to shares upon the listing of the company. 23.The 1st article goes on to report two particular incidents of members of the public investing in the company. One person (the mother of a Mr Chow) invested $22,000 in September 2012, without knowing anything about the online courses. Another person (a Madam Cheung) invested $1,000,000, notwithstanding objections from her family. 24.Dr Chan pleads that the heading and the following words appearing in the 1st article are defamatory of him:
25.These words are translated in the pleadings as follows:
26.The second part of the 1st article reports on a CKB168 event which was held two days prior to the day of the story. Two photographs taken on that day appear in the centre of the page. The bigger photograph shows a group of individuals, including two persons identified as Shern Hung Wai (「沈雄偉」) and Santos (「姍杜施」), and two guest artistes, standing on stage. The caption refers to Shern as the major shareholder and director of CKB168 and Santos as the “founder”. The smaller photograph shows what appeared to be a fairly packed audience, with the caption saying there were about 200 people attending the event. 27.The third part of the 1st article contains a report on an “undercover” visit paid by the Apple Daily reporter to a retail shop in Tsim Sha Tsui pretending to be interested in the courses offered by CKB168. A Ms Lau at the shop told her about the commission and mentioned about the prospective listing of the company two years later. The 1st article includes a photograph of Ms Lau. 28.The 2nd article is the only article which expressly refers to Dr Chan. It is necessary to reproduce it in full.
29.The following is an English translation of the 2nd article, largely taken from the amended statement of claim:
30.The photograph referred to in the 2nd article appears right next to the heading. It is the smallest of the four photographs on the page – just smaller than a passport-sized photograph. It is a close-up but slightly blurred shot of Dr Chan. 31.The table referred to in the 2nd article appears immediately underneath the article. It sets out information of the five companies which shared the same Tsim Sha Tsui address as their registered office, including their names, their shareholding and directorship and their paid-up capitals. Of relevance is the row on the company called “嘉高賓尼（集團）有限公司 CLAP Group Ltd.” It states that the company had four shareholders and directors, including Dr Chan who owned 25%. The source of the information set out in the table is stated to be the Companies Registry. 32.The relevant parts of the table are reproduced below, followed by the translation appearing in the amended statement of claim:
33.Dr Chan pleads that the heading, the words underlined above and those parts of the table extracted above, all forming part of the 2nd article, are defamatory of him. 34.The 3rd article has the following heading:
35.The 3rd article is a generic commentary on the features of pyramid schemes which surfaced in Hong Kong in recent years, such as allegations of imminent listing of the company and the hiring of well-known artistes in promotional events. There is a table under the 3rd article setting out a list of usual tactics employed by recent pyramid schemes. 36.Dr Chan pleads that the heading and the following words appearing in the 3rd article are defamatory of him:
37.The words are translated in the pleadings as follows:
38.I would pause here and make a few preliminary observations.
THE RIVAL MEANINGS 39.Dr Chan says that the 2nd article is seriously defamatory of him. It is common ground that when ascertaining the meaning of the 2nd article, the three articles are to be read together as a whole. On that basis, there are four rival meanings which may be attributed to the 2nd article. 40.Dr Chan’s pleaded case is, in essence, that the 2nd article conveys the natural and ordinary meaning that:
41.Under the classification made in Chase v News Group Newspapers Ltd [2003] EMLR 11, this is a level one meaning. 42.In a libel action, if it is ruled that the words in question do not bear the defamatory meaning pleaded in the statement of claim as its natural and ordinary meaning, the plaintiff is entitled to contend at trial that the words nevertheless bear some other meaning less injurious to the plaintiff but still defamatory of him: Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 175; Oriental Daily Publisher Ltd v Easy Finder Ltd [1998] 1 HKC 546 at 553D-H; Gatley on Libel and Slander (12th ed, 2013) at §34.8. That said, the lesser injurious meaning should come broadly within the meaning pleaded by the plaintiff: see, eg, Oriental Press Group Ltd v Next Magazine Publishing Ltd HCA 3831/1997, 14 November 2000 at p7. 43.Accordingly, Mr Lawrence Ng, appearing with Mr Victor Lui for Dr Chan, submitted at trial that the 2nd article bears at least two lesser defamatory meanings, namely:
44.These would be the level two and level three meanings under the Chase classification. 45.It is common ground that the three meanings, alternatively contended for by Mr Ng, are defamatory of Dr Chan. 46.On the other hand, Mr Paul Shieh, SC appearing with Ms Queenie Lau for the defendants, submitted that, in gist, the 2nd article simply means what it literally says. It carries no defamatory imputation against Dr Chan at all. It does not suggest that Dr Chan was culpably involved in any wrongdoing by CKB168. In the defendants’ opening submissions, the 2nd article is described as “moderately worded as far as [Dr Chan] is concerned, measured in tone, and does not overstate the position”. INVESTIGATION UNDERTAKEN BY APPLE DAILY 47.I shall first recount Apple Daily’s version of events as regards the steps it took in researching and publishing the story. The chronology starts from around October 2012. That is when Apple Daily started receiving complaints about a pyramid scheme operated by CKB168. Apple Daily’s account of events 48.In late October or early November 2012, Tam had a telephone conversation with a Mr Cheung, an acquaintance, about his wife’s investment in CKB168. The wife told Tam about the scheme. The wife appeared to believe that the company was genuine, partly because it had a park in Shenzhen which investors had visited. She also told Tam that her sister had bought courses worth $1,000,000. 49.Tam was critical of the investment plan. This prompted her to ask Carmen Ng to check Apple Daily’s hotline. It transpired that, apart from Mr Cheung, there were two other recent complaints made on the hotline on 11 October and 8 November. Tam instructed Carmen Ng to follow up and investigate these complaints. The telephone complaint records and Tam’s handwritten notes of her conversation with the Cheung’s are disclosed in these proceedings. 50.As all the three complaints were about “CKB”, Carmen Ng conducted searches on the name. She came across and reviewed various materials from the internet. The materials included:
51.At the instruction of Tam, Carmen Ng carried out searches at the Companies Registry. These searches revealed that there were a number of Hong Kong companies with names containing “CKB” or「嘉高賓尼」. The company search results are disclosed in these proceedings. They included the five companies listed in the table in the 2nd article. The search results showed that these five companies all shared the same Tsim Sha Tsui address as their registered office. 52.One of the companies was CLAP Group Ltd. The search results showed that one of the four directors and shareholders was Dr Chan. He was not named as either a director or shareholder in any of the other companies searched against. Howard Shern and Florence Leung, who were featured on the CKB website as members of the “Power Team” of CKB168, were both directors and shareholders of CLAP Group Ltd. 53.Carmen Ng also conducted searches at the Land Registry in respect of the addresses shown on the CKB website. 54.In addition to conducting the above public searches, on 2 November 2012, Carmen Ng paid a visit to Qutemart Ltd’s (one of the five companies in the table) retail shop in Tsim Sha Tsui. She collected a few promotional leaflets at the shop. They featured some educational courses and products for children, including products of CKB168 and CLAP. One of the leaflets was about a theme park called 「深圳市嘉高宾尼体验乐园」operated by CLAP and located on the second floor of a building in Shenzhen. 55.On the same day, Carmen Ng visited the registered office of the five companies. It was an office unit also in Tsim Sha Tsui. Carmen Ng expressed interest to the staff in purchasing the online courses and was given a pamphlet of CKB168. 56.Having by now come across Dr Chan in their research, Tam asked Carmen Ng to find out information about him. It would appear from the evidence of both Tam and Carmen Ng that prior to the investigation, they had not known or heard of Dr Chan. However, having researched into him, they both formed the view that he was a respected member of the community holding some positions and titles. On the other hand, the other shareholders and directors did not appear to share the same social profile. 57.In her witness statement, Tam described her thinking at that time as follows (at §36):
58.Carmen Ng expressed a similar sentiment in her witness statement:
59.Tam therefore instructed Carmen Ng to get in touch with Dr Chan. She decided that in order to get an immediate response, Carmen Ng should visit him at his clinic in Causeway Bay and confront him. 60.Carmen Ng first called the clinic by phone, pretending to be a patient trying to make an appointment. She was told that the time she asked for would not be available as Dr Chan would be seeing another patient. 61.Having secured the knowledge of a time when Dr Chan would be in the clinic, Carmen Ng and a photographer went there on 16 November 2012. It happened that when they took the elevator to go to the clinic, a man who looked like Dr Chan was already in there. However, at that time, she was unsure whether the man was actually Dr Chan as she had only seen photographs of him on the internet. They all got out on the same floor and the man entered the clinic. Carmen Ng then went inside the clinic, approached a nurse there, who was in fact Bonnie Ng, and asked for an interview with Dr Chan. 62.The conversation which then took place between Carmen Ng and Bonnie Ng is a matter of some dispute. 63.Carmen Ng’s version is that she made clear to Bonnie Ng the following:
64.Bonnie Ng then left the reception area for a short while. When she returned, she told Carmen Ng that Dr Chan was not in the clinic. She left her name card with Bonnie Ng. Carmen Ng and the photographer then left and waited at the ground floor. After a while, she saw the same man in the elevator leave the building. She went up to him and asked if he was Chan Hin Keung. The man denied that he was Chan Hin Keung, hurriedly got inside a car and left. 65.One subsequent development is that a woman telephoned Carmen Ng in the afternoon that day and scolded her over the phone for harassing her friend. She did not disclose either who she was or who her “friend” was. However, in the course of that telephone conversation, Carmen Ng felt that the “friend” was in fact Dr Chan and she tried to explain why she wanted to interview him. 66.Separately, Carmen Ng later telephoned Dr Chan’s clinic again, stating that she was a reporter from Apple Daily and wishing to speak to him. But the person who picked up the phone did not accede to her request. 67.In parallel with the above investigation, Tam found out more about the underlying product which was sold by CKB168. It was an online educational course aimed at young children and was called “Cackleberries”. 68.On 15 November 2012, Tam emailed Cackleberries International Language Corporation in Canada and asked about its relationship with “CKB168” in Hong Kong. In that email, Tam mentioned that CKB168 was the subject of complaints in Hong Kong. A reply was received on the following day, which stated that Cackleberries had no contract with CKB168. A subsequent email however confirmed that there was a contract between the company and Win168 but not CKB168. 69.On 24 November 2012, Carmen Ng went to the CKB168 event held in a hotel in Tsim Sha Tsui. She reported what she saw on that day in the 2nd article. She mentioned that she was not allowed entry into the event, which was only open to journalists from a couple of news outlets. 70.Two days after the event, Apple Daily published the story. Apart from one paragraph in the 1st article (which concerned Madam Cheung’s case and was written by Tam – see §48 above), the articles were drafted by Carmen Ng. They were edited by Tam who made fairly extensive changes to the draft. 71.In his evidence, Cheung (the 2nd defendant) explained that as a matter of general practice, an article such as the story in question would go through two separate editorial reviews prior to publication. The first review would be a general discussion where section heads and editors would be present and headlines would be chosen. The second review would be by the sub-editor’s desk when the presentation of the article would be reviewed and the article might be edited for style. 72.Cheung’s recollection about the story is limited to being told by Tam in very general terms about her research into a pyramid scheme. As Tam was a very experienced editor who had worked for Apple Daily for over 14 years, Cheung left the investigation and preparation of the story in her hands. Dr Chan’s account of events 73.Having recounted Apple Daily’s version of events, I now turn to set out Dr Chan’s account insofar as it conflicts with the former. The conflicting areas lie mainly in the encounter between Carmen Ng and Bonnie Ng at the clinic on 16 November 2012, and the encounter between Carmen Ng and Dr Chan in the street shortly afterwards. 74.I should, however, first set out Dr Chan’s own account of his relationship with CLAP Group Ltd. 75.He says that in early 2012, he was introduced to a business opportunity by Florence Leung, whom he had known for about 10 years. They had had business dealings relating to properties before. Florence Leung told him that she was a promoter of a business engaged in providing English tutoring services to students in Shenzhen and that the business had a main source of students from a school there and it was generating revenue. It was part of the operations of CLAP Group Ltd. Dr Chan visited the campus and eventually took up a 25% stake in the company. 76.In cross-examination, Dr Chan confirmed that the campus he visited was the CLAP theme park as shown in the CLAP leaflet collected by Carmen Ng at Qutemark Ltd’s retail shop. 77.Florence Leung was the chief operator of the company. Dr Chan did not participate in its daily management. He was appointed a director simply to ensure that he had an equal voting right in the company. 78.Dr Chan confirmed in evidence that when he invested in the company, he was not aware of the other CKB companies and had no idea that their Chinese names are similar to that of CLAP Group Ltd. He had no business dealings with those CKB companies and as far as he was aware, CLAP Group Ltd had no business dealings with them either. 79.As to what happened on 16 November 2012, Dr Chan says that he arrived at the clinic before 10am for an appointment and that was before Bonnie Ng came in for the day. He was engaged with that patient throughout the morning. At about 1pm, the session ended and he hurriedly left the clinic in order to catch the 1:45 pm Macau Jetfoil. On his way out, Bonnie Ng briefly mentioned that someone claiming to be from Apple Daily had come and requested to interview him. Dr Chan paid no attention to that as he knew he did not have any other appointment on that day. 80.When he walked out of the building, he was approached by an unidentified woman (who would be Carmen Ng) who shouted to him the words “Dr Chan?” in Chinese. He ignored her and hurried towards his car. He explained that he had reacted this way because of his “diplomat protocol” and concern for his personal safety. He stepped inside his car and just when the sliding door was coming to a close, a man forcibly pushed a camera inside the car and took some photographs of him, without identifying himself or seeking Dr Chan’s consent. In re-examination, Dr Chan said he was very upset at that time and found such encounter “humiliating”. 81.Bonnie Ng’s recollection of the day’s events is recounted in her witness statement as follows. At around 11:25 am, Carmen Ng and a man came to the clinic. Carmen Ng told her that she is a reporter from Apple Daily and said she would like to interview Dr Chan. Bonnie Ng did not wish to interrupt Dr Chan’s session. She went to check his diary and found that no interview appointment had been booked. Therefore she told Carmen Ng that Dr Chan was not in the clinic. 82.Carmen Ng then asked if Dr Chan is a director of 「嘉高賓尼」. Bonnie Ng found it improper and rude of Carmen Ng to ask such a question as it concerned Dr Chan’s personal information. Bonnie Ng therefore said she knew nothing and asked Carmen Ng to leave. The latter left a name card before leaving. 83.At about nearly 1pm when Dr Chan hurriedly left the clinic, Bonnie Ng told him about the visit. At that time, he did not pay much attention and left in a rush. 84.It can be seen from the above accounts that the factual disputes are not extensive. Materially, the dispute centres upon:
85.Apart from these disputes, in the cross-examination of Dr Chan and Bonnie Ng, the following evidence also emerged for the first time. They relate to the things done by Dr Chan and Bonnie Ng following the surprise visit by Apple Daily.
EVALUATION OF THE EVIDENCE 86.The factual disputes are not extensive. Where the parties’ factual accounts are in conflict, they are not giving diametrically opposite versions of the same events. Shortly put, their accounts are just different, but not vastly so. 87.Separately, it is for Apple Daily to prove that it had, through Tam and Carmen Ng, undertaken the investigation as alleged, as there is no eye witness from Dr Chan’s side to challenge or disprove it (save in respect of the encounters on 16 November 2012). 88.The court’s task is to evaluate the inherent probabilities of the parties’ factual cases and, to the extent available, test them against contemporaneous documents. 89.Having considered the evidence as a whole, I am of the view that Apple Daily’s factual case is coherent, consistent, inherently plausible and hence credible. By comparison, Dr Chan’s factual case at times does not accord well with inherent probabilities and there are some gaps in his case which, on its face, are inexplicable. 90.I have taken into account the following matters. Apple Daily’s case is coherent, consistent and inherently plausible 91.First, Apple Daily’s case as to how Tam and Carmen Ng investigated the pyramid scheme, the companies related to it and the individuals involved (including Dr Chan) is inherently plausible. The two witnesses together were able to describe coherently and in detail the whole process – from the start (the time when Tam received a complaint from an acquaintance) all the way to the end (the publication of the story on 26 November 2012).
92.Secondly, in their evidence, Tam and Carmen Ng managed to describe the things which they had done with detail. This is particularly apparent in Tam’s oral testimony. Also, their evidence in a number of areas is supported by contemporaneous documents.
93.Thirdly, there is no significant inconsistency detected in either Tam or Carmen Ng’s evidence. Mr Ng argued that there is a material contradiction between their written and oral evidence on whether they thought that Dr Chan was involved in the pyramid scheme.
94.In order to determine whether Mr Ng’s criticism is valid or not, it is necessary to set out the relevant parts of the Q&A. 95.When Tam was cross-examined, the following exchange took place:
96.Carmen Ng was cross-examined on the same issue:
97.After this exchange, Carmen Ng repeated at least two times that it was because she did not know the role of Dr Chan in the pyramid scheme that she paid him a visit to try to ask him about it. 98.As I understand it, Mr Ng’s submission is that in their written statements, both said they were surprised by Dr Chan’s involvement. This suggests that both positively thought at that time that Dr Chan was involved in the pyramid scheme in the sense that he knowingly participated in it. However, in their oral evidence, both said repeatedly that they did not think that he was involved. And there lies the contradiction. Mr Ng described their oral evidence as a “recent fabrication” and a “disingenuous” attempt to withdraw their admission in their written statements. 99.I do not accept that submission because I think the submission is based on a misreading of the evidence. 100.When the evidence is considered as a whole, I consider that there is one clear theme running consistently through both Tam and Carmen Ng’s evidence. And it is this.
101.In cross-examination, Tam explained the meaning of her written statement (see §57 above). She said that at that time, she was wondering why Dr Chan, a person of some status, would associate himself with these CKB people. And it was upon this thought that she instructed Carmen Ng to find out more from Dr Chan himself. 102.The oral evidence of Tam and Carmen Ng was presented as: “they did not think that he was involved in the pyramid scheme”. I have to say that at first blush one may easily equate that to mean “they thought that he was not involved”. However, when the whole of their evidence is considered, most importantly, their oral testimony as italicised in §§95-96 above, in which they said they did not know if he was involved, it is sufficiently clear that they were effectively saying that “they did not think one way or the other whether he was or he was not involved” as they simply did not know the answer. 103.For these reasons, I do not accept that there is a material contradiction as argued by Mr Ng. (I shall have to return to Tam and Carmen Ng’s state of mind under the Reynolds discussion as it is a material consideration on the issue of responsible journalism. In this part of the discussion, however, my focus is solely on whether there is any inconsistency in their evidence as far as their state of mind is concerned.) 104.Fourthly, the evidence of Tam and Carmen Ng, both written and oral, is generally consistent throughout. More specifically, there are several themes running through Tam’s evidence that she stood firmly by, notwithstanding challenges in a series of cross-examining questions. In addition to her state of mind (as discussed), those main themes are:
105.Fifthly, both Tam and Carmen Ng appeared to be credible and reliable witnesses.
By comparison, some aspects of Dr Chan’s case are open to doubt 106.Sixthly, by comparison, Dr Chan’s case is not as straightforward and coherent. His case does not accord well with inherent probabilities in a number of respects and there are a few obvious gaps within his case. For instance:
107.Seventhly, I think it is legitimate to take into account the fact that as far as Dr Chan and Bonnie Ng are concerned, the visit on 16 November 2012 had caught them by surprise. Dr Chan’s own evidence was that on that day he was in a rush to catch the Macau Jetfoil whereas Bonnie Ng’s evidence was that since she found Carmen Ng’s request for an interview improper and rude, what she wanted at that time was to get rid of her as soon as possible, so that she could carry on with her day’s work. In fact, she wrote down on Carmen Ng’s name card the remark “harassing” in Chinese. Against that background, there is a clear possibility that their subsequent recollection of what was said (or not said) may not be entirely accurate. This should be contrasted with Carmen Ng’s recollection which may be expected to be more reliable since, to her, the visit was a planned one and she did go there for a purpose. It would seem more likely that her recollection is more reliable. 108.For the same reason, it would also seem more likely that Carmen Ng would have a better recollection of her interaction with Dr Chan in the street on 16 November 2012 than Dr Chan himself. Carmen Ng specifically approached Dr Chan to ask him questions and would therefore be expected to pay attention to his response. On the other hand, Dr Chan was clearly caught by surprise and he described he was upset by the whole experience. His subsequent recollection of what had actually been said may not be as accurate or reliable. Factual findings 109.For the above reasons, I would, on a balance of probabilities, accept as true the account of events given by Tam and Carmen Ng on the steps taken in their research, investigation and publication of the story and their thought process throughout. To the extent of any conflicting accounts given by Dr Chan and Bonnie Ng, I prefer Apple Daily’s account to Dr Chan’s. 110.More specifically, I find as facts that when Carmen Ng spoke to Bonnie Ng at the clinic on 16 November 2012, she made clear to her the three matters set out in §63 above. Also, shortly afterwards in the street, Dr Chan did say words to deny that he was Chan Hin Keung. Accordingly, I find that the factual description of the encounter with Dr Chan in the 2nd article is accurate and correct. 111.Based on the above factual findings, I now turn to the legal issues on liability. There are two – meaning and Reynolds privilege. THE MEANING How to determine meaning in a defamation claim? 112.The general principles governing how a court should determine the meaning of words in a defamation claim are recently summarised by Lok J in BaWang International (Group) Holding Ltd v Next Magazine Publishing Ltd HCA 1190/2013, 23 May 2016 at §§26 to 34.
113.I would highlight three points from the above extracts which are of particular relevance in the present claim. 114.First, while a defamatory meaning or imputation may be conveyed by the actual words used in an article, it may also arise by implication or inference. So long as such indirect meaning can be detected in the language used, it would qualify as a natural and ordinary meaning of the words: see also Lewis v Daily Telegraph [1964] AC 234 at 258. 115.A distinction ought to be drawn between an implication and an inference. It has been said that an implication is what the reader understands the publisher as intending to say and is therefore included in or part of what is expressed in an article. On the other hand, an inference is what a reader adds to or puts upon what is stated in an article and is a conclusion drawn by the reader from what has been expressed. This distinction is highlighted in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158. Gatley summarises the distinction to be that between “what the speaker is understood as intending to convey” (an implication) and “what the hearer concludes from what the speaker says” (an inference): see §3.18 at footnote 207. 116.This point about indirect meanings is relevant because there can be no dispute that the meaning contended for by Dr Chan is not explicitly stated anywhere in the articles. Hence that meaning will have to be either implied or inferred. The question therefore becomes – what implication in relation to Dr Chan, if any, would possibly arise in the mind of a reasonable reader? Or, alternatively, what inference, if any, would a reasonable reader possibly draw from the articles? 117.Secondly, when construing the natural and ordinary meaning of the words, we are looking for the meaning in which a reasonable person of ordinary intelligence, with the ordinary person’s general knowledge and experience of worldly affairs, would be likely to understand them: see also Jones v Skelton [1963] 1 WLR 1362 at 1370-1371. This point is relevant because we are concerned with implied or inferential meanings in this case. The scope of such meanings (as opposed to the meanings of the actual words used) would often depend on what general knowledge a reasonable reader possessed when he read the story.
118.Thirdly, the hypothetical reasonable reader is taken to be representative of those who would read the publication in question. And it follows that the characteristics of the publication itself need to be borne in mind in order to identify or ascertain the profile of its general readership. Gatley cites (in §3.26 at footnote 296) as an example John v Times Newspapers [2012] EWHC B3 (at §51) in which readers of The Times newspapers were assumed to be amongst the more highly educated and better informed members of the public (cf the comment made in Gatley at §3.26 in footnote 283). In Lennon v Scottish Daily Record & Sunday Mail Ltd [2004] EMLR 18, it was suggested (at §18) that ordinary citizens are now perceived by the courts, both domestic and international, as having more discriminating judgment than was traditionally recognised. 119.One of the tasks of the court in this case is therefore to identify who would read Apple Daily and what these people are generally like. 120.In sum, in determining the natural and ordinary meaning of the 2nd article insofar as Dr Chan is concerned, I am to ask myself this – how would the articles as a whole strike a hypothetical reasonable reader of Apple Daily? More particularly, what would he read into, or what inference would he draw, if any, from the connection between Dr Chan and CKB168, as disclosed by the articles? In answering these questions, I need to bear in mind, amongst other things, what general knowledge he possesses concerning company directorship and shareholding. The single meaning rule 121.It would be immediately apparent from the questions posed above that insofar as Dr Chan is concerned, reasonable readers may understand the articles differently. It is because there is clearly room for differences or disagreement as to what the articles, in particular, the connection identified above, may imply or what one may infer from them. The reasonable readers may also possess a varying range of general knowledge when it comes to matters concerning company directorship and shareholding. As a result, there is likely to be a number of meanings in which the articles would be understood amongst the pool of hypothetical reasonable readers of Apple Daily. (For the avoidance of doubt, by this stage, we have already weeded out and are therefore not concerned with the untenable meanings held or perceived by the “unreasonable” readers.) 122.It is generally accepted that since language is an imprecise tool, many statements may carry a range of reasonable meanings. Different (but still reasonable) people may understand words in different ways. Where the words complained of are ambiguous, ie reasonably capable of an innocent and a defamatory meaning, it is a question of fact to determine in which of the two meanings they are to be understood: Gatley at §3.24. 123.It is well-established that in such an instance, there is only one single, “right” meaning for the question of “libel or no libel”: Gatley at §3.16. This is known as the single meaning rule in the law of defamation. Criticisms have been mounted against the rule from time to time. That said, the position in Hong Kong is clear – the single meaning rule applies. In Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd, Lord Neuberger NPJ, with whom Ma CJ expressly agreed, considered that such criticism is misplaced: §§1 and 138. 124.Where a libel case is tried by a judge sitting alone, he asks himself these questions: “Is the natural and ordinary meaning of the words that which is alleged in the Statement of Claim?” and “If not, what, if any, less injurious defamatory meaning do they bear?” See Slim at 174-175. 125.Some further (and more specific) guidance can be found in the English cases. 126.In Horlick v Associated Newspapers Ltd [2010] EWHC 1544, Eady J observed (at §9) that the meaning is “a question of how the particular article, put in its context, strikes the reader” and that “[i]f he or she thinks that the message conveyed by the article is defamatory, and towards the more serious end of the scale, there would be no reason to opt for an alternative possible meaning just because it is less serious”. 127.In Lord McAlpine of West Green v Bercow [2013] EWHC 1342, Tugendhat J observed (at §66) that the approach to meaning is to be determined by reference to what the hypothetical reasonable reader would understand in all the circumstances and that it would be unreasonable for such a reader to always adopt a bad meaning where a non-defamatory meaning was available but it would also be unreasonable for such a reader to always adopt the less derogatory meaning. 128.But the above guidance seems mostly to help steer the court’s mind when it seeks to answer the question of what meaning the publication would convey to a reasonable reader. But where the words are published in a popular newspaper and are in fact read by many members of the public, the chances are that some reasonable readers would understand the words to mean one thing and some other reasonable readers would understand them to mean another thing. (There is of course also the situation where the words employed are so unambiguous that there is only one thing that the words can sensibly mean. In that case, that would be the meaning of the words. Technically speaking, the single meaning rule is arguably not even engaged in the first place.) 129.Where there are multiple reasonable meanings understood amongst the pool of hypothetical reasonable readers of the publication in question, how should a court go about finding the single meaning? 130.On this point, Mr Shieh cited the English Court of Appeal’s decisions in Ajinomoto Sweeteners SAS v Asda Stores Ltd [2011] QB 497 and Cruddas v Calvert [2014] EMLR 5. 131.Ajinomoto was a case on malicious falsehood. Sedley LJ examined and analysed the origin, history, development, operation and effect of the single meaning rule, arrived at the conclusion that the rule is “anomalous, frequently otiose and, where not otiose, unjust”, and held that it does not apply to the tort of malicious falsehood. The other members of the Court of Appeal agreed. Sir Scott Baker referred to Sedley LJ’s judgment as a “masterly judgment”. 132.In §1 of the judgment, Sedley LJ outlined the problem which he saw with the single meaning rule – it is unproblematical where there is only one thing that the words can sensibly mean, but it can be highly problematical where reasonable people might put more than one construction on the words read in their proper context. 133.In the present discussion, the relevance of the case does not lie in its criticism of the single meaning rule. More relevantly, the judgment sheds some light on the test or criteria a court may adopt in deciding the single meaning where there exist multiple reasonable meanings. 134.First, it highlights that the task is to ascertain the collective meaning which is to be attributed to the reasonable readers as a whole. Sedley LJ cited (at §3) the well-known passage from Slim:
135.Secondly, his Lordship’s speech recounts counsel’s submissions of some of the formulations which can possibly be used as the guiding criteria in the search for the single meaning:
(Because of the refusal to apply the single meaning rule to malicious falsehood cases, the Court of Appeal did not actually have to decide how it should be applied. Sedley LJ expressed relief in not having to deal with the proper content of the rule: see §36.) 136.In Cruddas, Longmore LJ suggested that in a libel action, the single meaning rule requires the court to “find an approximate centre-point in the range of possible meanings” and “the single meaning has, generally speaking, to be the (or a) dominant one”. His Lordship did not elaborate on what he meant exactly by the term “approximate centre-point”. Is that “centre-point” to be reached by reference to the severity of the defamatory meanings, or by (mentally) estimating the respective proportions of readers subscribing to those meanings? Further, what exactly does the word “dominant” denote? Is a meaning “dominant” if it is a meaning subscribed by the majority of the readers, or (if there are more than two rival meanings) by most readers in the class? 137.Lastly, I note that in commenting on the single meaning rule in Oriental Daily, Lord Neuberger cited the example of Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd at §140 (a case on tenancy notice) to illustrate how the single meaning was arrived at by the court where there was disagreement amongst the judges as to the interpretation of a notice. The notice was held to take effect on one day by two Law Lords and on another day by the other three judges. The outcome was that “the notice had a single meaning as a matter of law, and took effect on the latter day”. 138.The single meaning rule is a fiction. It assumes that reasonable people will understand a particular statement in only one way when they do not. As pointed out in Cruddas (at §14), where a libel case is tried by a judge alone, since judges (unlike juries) have to give reasons for their conclusions, that single meaning has to be articulated. It should follow that there should at least be some fictional device or criteria by which the single meaning can be found. 139.In his closing submissions, Mr Shieh suggested that the single meaning may be the “dominant” one, the “most obvious” one, or even the “most reasonable” one within the range of reasonable meanings. That said, these catchphrases, it was submitted, should not yield different results. He further submitted that when jurors consider the single meaning, once they come to a meaning in their minds, “that’s it”. 140.In my view, given that (a) the question of meaning is ultimately a question of fact; (b) the context is that there are different meanings understood by different but still reasonable people; and (c) the task is effectively to attribute to the words a collective meaning which all the readers in the pool are assumed to hold (when in fact they do not), it may be apt to describe the single meaning to be the “most likely”, the “most tenable”, or the “dominant” meaning amongst the range of reasonable meanings which the words convey. Alternatively, it may well be the meaning which most reasonable readers would take the words to mean (and, in that case, that meaning is likely to be the “most likely”, the “most tenable” or the “dominant” meaning). 141.I have not adopted Mr Shieh’s suggestion of the “most obvious” meaning as one of the possible criteria or formulations. As will be discussed below, the word “obvious” has been adopted as a test for ascertaining the scope of verification required of a responsible journalist when he seeks to claim Reynolds privilege. It is therefore best avoided in the context of meanings. 142.In support of the above proposition, I would mention in passing the following remark made in the article “The Swing of the Pendulum: Reputation, Expression and the Recentering of English Libel Law” (2012), by Mullis and Scott, Northern Ireland Legal Quarterly, 63(1), 27-58 (referred to in the Preface of Gatley):
It seems implicit in the above statement that the authors take the view that the single meaning is the “most likely” meaning amongst the possible ones. 143.Here, the articles bear a range of reasonable meanings which are capable of being perceived or understood by reasonable readers of Apple Daily, the material question is therefore to, first, identify the range of reasonable meanings and, secondly, choose the single, “right” meaning from the range. I shall do so by applying the principles and criteria as discussed above. Application to the facts 144.The first task is to identify the general characteristics of the readership of Apple Daily. This issue was not explored in evidence. (Cheung, editor-in-chief of Apple Daily, was cross-examined on the style of the newspaper. Mr Ng relied on such evidence mainly under the Reynolds discussion.) This is perhaps not surprising. Apple Daily has been around for years. It is one of the Chinese language newspapers in wide circulation in Hong Kong. It is not a newspaper targeted at or marketed to a particular sector of the public. Nor does it profess to be a specialist publication. 145.Mr Shieh submitted in closing that it is not a tabloid style newspaper in the sense that it covers a full range of news, including, eg, international news and finance. On the other hand, Mr Ng at one point submitted that readers of Apple Daily are generally interested in sensational news and they would not care whether the credibility of the newspaper is low as long as the news is entertaining, sensational and interesting. This is a sweeping proposition. Later on he appeared to retract a little and described the readers as those interested in news which use pictures, tables, headings or colourful photographs. 146.While some of the readers of Apple Daily may be attracted to it because of its liberal use of photographs and graphics, I am not convinced that Mr Ng’s description is a suitable one to describe all its readers across the board. On the whole (and for the purpose of this claim), I think it is fair to say that Apple Daily has a broad readership. Its readers may generally be described as sharing the characteristics of the general public who read newspapers. 147.The next question is – insofar as Dr Chan is concerned, how would the articles strike a reasonable reader of the newspaper? 148.In my view, it is clear that the main theme of the story is the pyramid scheme run by CKB168. It is the central message of the story and that is evident from the big heading of the 1st article, “CKB168 pyramid scheme market sales of online courses”, which appears in big font and is printed horizontally across the entire page. Moreover, the 1st article, which is all about the pyramid scheme, together with the three photographs appearing within it, takes up more than half of the size of the whole story. 149.It is against this context that Dr Chan is featured in the 2nd article. His connection with CKB168 is spelt out in there. 150.It would therefore seem that the whole point of the 2nd article is to highlight, and make known to the readers, that connection between Dr Chan and CKB168. 151.But what impression would a reasonable reader possibly form as to the connection, if any, between Dr Chan and the pyramid scheme operated by CKB168? 152.Mr Ng submitted that the articles, when read as a whole, clearly convey to an ordinary reasonable reader the impression that Dr Chan was culpably involved in a pyramid scheme through his interest, involvement or participation in CKB168. In other words, he knew about the pyramid scheme and knowingly participated in it. Mr Ng drew support from both the content and the layout of the articles.
153.It is plain, Mr Ng submitted, that the articles bear the Chase level one meaning because the words mean that Dr Chan was guilty of criminal acts. 154.On the other hand, the thrust of Mr Shieh’s submissions is that the 2nd article simply means what it says. Of the three articles, only the 2nd article refers to Dr Chan. The 1st and 3rd articles do not mention him at all. It is conspicuous that the 2nd article does not refer to any wrongdoing on his part or any participation by him in a pyramid scheme. There is simply no suggestion of any culpable involvement by him. 155.Mr Shieh argued that the 2nd article is moderately worded as far as Dr Chan is concerned, measured in tone, and does not overstate the position. There is no sarcastic, pointed, harsh or teasing language. He criticised the meanings propounded by Dr Chan as an over-sensitive or imaginative reading of the 2nd article. 156.It was therefore submitted on behalf of Apple Daily that neither the 1st article nor the 3rd article can somehow “convert” the natural and ordinary meaning of the 2nd article into allegations of wrongdoing against Dr Chan. 157.For completeness, I should add that Dr Chan’s evidence on how his friends and acquaintances had reacted to the articles and the online posting is irrelevant on the issue of meaning. Evidence on how the words were in fact understood is inadmissible: Duncan and Neill on Defamation (4th ed) at §5.24. This is accepted by Mr Ng. He clarified that such evidence was only relied upon on the issue of damages. My ruling on meaning 158.Given that the 2nd article in fact seeks to highlight the connection between Dr Chan and CKB168, it is entirely plausible to envisage that a reasonable reader may gain the impression after reading the story that there is in turn some connection between Dr Chan and the pyramid scheme. 159.However, I accept Apple Daily’s submission that the tone of the 2nd article is moderate and balanced and the language used is plain. As such, I do not consider that there is much room for an implied meaning to arise. There is nothing in the articles which suggest that the author was implicitly conveying the message that Dr Chan knowingly participated in the pyramid scheme. Hence I do not expect that a reasonable reader would readily read into the story anything which is not expressly stated in there. 160.On the other hand, there is clearly room for a reasonable reader to draw inference or his own conclusion from the fact of the connection between Dr Chan and CKB168. Further, it can legitimately be expected that reasonable readers may differ as to what being a director and shareholder would involve or entail. The range of conclusions drawn would inevitably be affected by what general knowledge the readers possess concerning company directorship and shareholding or their own perception of what a director and a shareholder does (or does not do) in general. 161.In Hong Kong, the use of companies is common. In some cases, a director may actively participate in the management of a company’s business. In other cases, a director may be totally passive and does not know what is going on in the company. That is a reality of life. 162.Amongst the reasonable readers, some may appreciate that the role actually played by a director varies a great deal such that, to them, the mere fact of someone holding a directorship does not necessarily mean that he knows what is in fact going on with the company or he participates in its business in any way. Accordingly, having read the articles, these readers would not readily form the impression that Dr Chan was culpably or knowingly participating in the CKB168 pyramid scheme. 163.On the other hand, it should equally be anticipated that some other people would simply assume that a director is the person running and managing a company and therefore knows about, and actively participates, in the business of a company. To them, the articles would naturally convey to them the impression that Dr Chan was an active participant in the pyramid scheme. Yet, other reasonable readers may believe, as part of their general knowledge and perception, in some kind of participation of differing degrees which fall somewhere between these two ends. 164.For these reasons, in my view, the articles would strike reasonable readers differently, depending on, in part, their perceptions of what a company director and shareholder does. And the outcome is that they may gain different impressions as to the connection between Dr Chan and the CKB168 pyramid scheme. There is therefore a range of reasonable meanings which can be inferred from the articles. They would include:
165.The first three meanings are defamatory of Dr Chan whereas the fourth is not. 166.In concluding that there is a range of reasonable meanings which may be attributed to the articles, I reject Apple Daily’s argument that since the 1st and 3rd articles make no mention of Dr Chan at all, they cannot somehow “convert” the natural and ordinary meaning of the 2nd article into allegations of wrongdoing against Dr Chan. The argument overlooks one of the guiding principles on meanings, namely that in many cases, a meaning does not have to lie in the actual words used but may arise by inference. Reasonable readers may (and, in fact, often) add to the actual words their own conclusions and those conclusions would be treated as the natural and ordinary meanings of the words in a libel claim. As Cotton LJ explained in The Capital and Counties Bank v Henty (1880) 5 CPM 514 at 536 (cited in Gatley at §3.18 in footnote 205):
167.Having held that the articles give rise to the above range of meanings, which one of them should be chosen as the single meaning? 168.The search is for the most likely, the most tenable, or the dominant meaning amongst the four reasonable meanings. 169.On this issue, I accept Mr Ng’s submission which I have set out in §152 above. The alignment or juxtaposition of the three articles and their headings create a visual impact on the readers and immediately convey an impression of a link between Dr Chan and the pyramid scheme. This may create an uncomplimentary rendering of Dr Chan. Although the readers are expected to read not just the headings but the whole article from beginning to end, it may be expected that how they read the articles would be affected by the initial visual impact created by the layout. 170.I also accept that the recount of Dr Chan’s denial of his own identity in the street also has the effect of portraying him as being evasive or, at least, not entirely forthcoming. As a result, when it comes to Dr Chan, the general tenor conveyed by the articles is on the negative side. One should also bear in mind that a reasonable reader would likely read the articles only once without analysing the words in detail. For that reason, I would be inclined to think that the non-defamatory meaning advocated by Apple Daily would not be the most likely, the most tenable or the dominant meaning, amongst the four. 171. 172.That leaves us with the level two and level three meanings. In substance, the difference between the two meanings is bound to be small, if not marginal. But if I have to choose between the two, I would be inclined to think that the level two meaning is the “right” meaning, given the juxtaposition of the articles and the generally uncomplimentary rendering of Dr Chan in the articles. 173.Accordingly, I hold that the 2nd article, when read in conjunction with the 1st and 3rd articles, bears the natural and ordinary meaning that there are reasonable grounds to suspect that there is a nefarious connection between Dr Chan and the CKB168 pyramid scheme and that he knowingly participated in it. As such, the 2nd article is libellous of Dr Chan. JUSTIFICATION 174.Mr Ng submitted that the meanings pleaded in the re-amended defence and sought to be justified by the defendants are non-defamatory. In such a situation, the plea of justification is irrelevant and embarrassing: Au Yee Ming Ivan v Ng Fei Tip DCCJ 4595/2008, 25 August 2010 at §106. 175.I agree. The defence of justification must fail for that reason. 176.In any event, the defendants accepted in closing that they rely on the defence of justification only in the “narrow circumstances” that I rule that the words bear the defendants’ pleaded meaning and that meaning is defamatory. That is not the ruling which I have made. The defence is simply not engaged even on the defendants’ own submissions. REYNOLDS PRIVILEGE Introduction 177.The defence of Reynolds privilege was laid down in the landmark decision of the House of Lords in Reynolds v Times Newspaper Ltd [2001] 2 AC 127. It places emphasis on the question of whether the publication was on a matter of public interest and whether it was the product of responsible journalism: Gatley at §15.1. 178.The defence was applied (in favour of the newspaper) by the Privy Council in Bonnick v Morris [2003] 1 AC 300. Its scope was discussed in depth by the House of Lords in Jameel (Mohammed) v Wall Street Journal Europe Sprl [2007] 1 AC 359 and the Supreme Court in Flood v Times Newspapers Ltd [2012] 2 AC 273. In Hong Kong, the defence came up for consideration before the Court of Appeal in Blakeney-Williams v Cathay Pacific Airways Ltd [2011] 1 HKLRD 901 and Pui Kwan Kay v Ming Pao Holdings Ltd [2016] 2 HKC 518 and also in a number of first instance decisions including, notably and recently, in BaWang. 179.The significant development in England is of course the Defamation Act of 2013. Section 4 of the Act establishes a defence on matter of public interest. Its subsection (6) then abolishes the common law defence known as the Reynolds defence. But the statutory defence is said to reflect the principles established in the Reynolds decision and the subsequent case law: Gatley at §27.31; Duncan and Neill at §14.03. However, the Act is beyond the scope of the present discussion. 180.There are three components to the defence. First, whether the subject matter of the publication was of sufficient public interest. Second, whether it was justifiable to include the particular material complained of. And, third, whether the publisher had met the standards of responsible journalism. If all three components are made out, the publisher has a valid defence even though what it printed was in fact untrue and defamatory of the plaintiff: see, eg, Jameel at §32. 181.And the outcome is that the person who has been defamed would be left with no remedy against the publisher. 182.In Flood, Lord Phillips observed at §48:
183.On the same point, Lord Brown remarked at §112:
A balancing exercise 184.It is important to understand the rationale underpinning the defence and why the above outcome is considered justified as a matter of law. 185.In a defamation claim, two fundamental human rights are engaged – protection of reputation and freedom of expression. 186.In Reynolds, Lord Nicholls emphasised that it is for the public good that reputation should be protected (at 201A-B):
187.It has now been recognised in English and European jurisprudence that reputation is itself a right protected by the European Convention on Human Rights in the context of respect for private and family life under article 8: see Re Guardian News and Media Ltd [2010] 2 AC 697, §§37-42; Gatley at §§1.14, 15.3. 188.Freedom of expression is a fundamental right protected under article 10 of the Convention. 189.Lord Nicholls said (at 200G) in Reynolds:
190.The importance of the role of the media as a public watchdog in a democratic society is very well recognised and is to be given due weight.
191.Where an untrue and defamatory statement is made of a person by a newspaper, the two fundamental rights come in conflict with each other. The court’s task is to decide in each case how the balance should be struck – which of the two rights is to give way in the particular circumstances of the case? It is ultimately a balancing exercise. 192.In Flood, Lord Phillips said (§44):
193.In Jameel, Baroness Hale explained how Reynolds holds the balance:
194.Where that is the case, the balance would come down in favour of upholding the freedom of expression. And the newspaper concerned would not be held liable for the publication of the defamatory statement. 195.The second question posed by Baroness Hale is more often classified as the third component of the defence and is phrased as a test of whether there has been “responsible journalism”: see, eg, Jameel at §53; Gatley at §15.5. 196.The rationale for the test of responsible journalism was explained by Lord Bingham in Jameel, at §32:
197.Lord Phillips expanded on this rationale in Flood, at §78, placing an emphasis on the need to verify the truth of the allegation:
Application in Hong Kong 198.In Hong Kong, the nature of the balancing exercise and its jurisprudential underpinning was expressly acknowledged by the Court of Appeal in Pui Kwan Kay. Lam VP said (at §37):
(See also Lok J’s discussion in BaWang at §§361-366.) 199.Since Reynolds, there has been some debate as to the jurisprudential basis of the defence (see the discussion in Gatley at §15.2). On the one hand, it has been thought that the essential basis remains to be that of the traditional, reciprocal duty and interest test applicable in a particular journalistic context: see, eg, the remarks made by Lord Bingham, Lord Hope and Lord Scott in Jameel at §§30, 105, 135 respectively. On the other hand, it has been said it is a “different jurisprudential creature” from the law of privilege: see, eg, Baroness Hale’s view in Jameel at §146; Lord Phillips’ view in Flood at §38. 200.It would appear from Lam VP’s judgment in Pui Kwan Kay that he subscribed to the latter view. His Lordship said that notwithstanding its genesis from the traditional defence of qualified privilege, it is more accurate to describe it as a defence of public interest (§33). He also repeated Lord Phillips’ remark in Flood that it is a “different jurisprudential creature” from the traditional form of qualified privilege (§39). (Since parties mostly referred to the defence as “Reynolds privilege” in the trial, I use the same term in this judgment, instead of the “more accurate” description preferred in Pui Kwan Kay.) 201.More importantly, in Pui Kwan Kay,Lam VP echoed the English position that the court’s task is ultimately to undertake a balancing exercise when ruling on a Reynolds defence. His Lordship said, at §45:
202.He then continued to explain (at §46) that the logic of subsuming the different limbs into one single overall question has “the practical advantage” that “it places greater emphasis on the overall balancing of the relevant factors with particular reference to the facts and circumstances of the case.” Accordingly, in my analysis, in addition to addressing the three components one by one, I should also ask myself the ultimate question of how the factors arising in this case should be balanced on an overall basis. The three components 203.
204.In Hong Kong, the approach was adopted and referred to as a “three-pronged inquiry” in Blakeney-Williams v Cathay by the Court of Appeal (see §138). 205.The first component is not controversial in the present case. Dr Chan accepts that the issue of pyramid selling is a matter of public interest. 206.The law on the second component is in dispute. The dispute lies in the test to be applied when determining whether the offending statement should be included. Mr Ng contended that the proper question to ask is whether it was necessary to include the statement whereas Mr Shieh argued that the correct test is whether it was reasonable to do so. In any event, Mr Ng submitted that the statements concerning Dr Chan should not have been included whereas Mr Shieh submitted the opposite. 207.Under the third component of the defence, the court determines whether the journalist has met the standard of responsible journalism. 208.In Jameel, Baroness Hale encapsulated the requirement in the following statement (at §149):
209.The starting point is always the ten factors set out by Lord Nicholls in Reynolds (at 205A-D). 210.It is a list of circumstances which would be relevant to the issue of whether the standard of responsible journalism had been met in a given case. The list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case.
211.In evaluating whether Tam and Carmen Ng had met the standard of responsible journalism by reference to the above ten (and other relevant) factors, however, one preliminary issue arises. In addressing the requirements posed by Baroness Hale (stated in §193 above), what exactly was “the information” which the two of them were supposed to verify? 212.I have ruled above that the articles would be understood differently by the hypothetical reasonable readers of Apple Daily and the words therefore bear a range of reasonable meanings. In order to qualify as responsible journalists in the Reynolds sense, which of those meanings should Tam and Carmen Ng have verified? More relevantly, should they have verified the level two meaning as found by me to be the single meaning of the articles? The law on this is to be distilled from the decisions in Bonnick, Flood and Pui Kwan Kay. Inclusion of offending statement – necessary vs reasonable? 213.Mr Ng formulated the test for the second component as whether it was necessary to include the references to Dr Chan in the articles whereas Mr Shieh advocated for a test of reasonableness. 214.The different stances taken by the parties is perhaps understandable. The concept of necessity would, it seems, set a higher threshold for the defendants to meet than that of reasonableness and would therefore likely operate in favour of Dr Chan. In the present case, if I find that it was reasonable but not necessary to refer to Dr Chan in the articles, then, applying Mr Ng’s test, Apple Daily would fail at the second stage. 215.Mr Ng drew support from BaWang and the decision of the Supreme Court of Canada in Grant v Torstar Corp [2010] 4 LRC 316.
216.On this issue, Mr Shieh relied on the following passage from the decision of Eady J in Prince Radu of Hohenzollern v Houson [2007] EWHC 2735 at §14:
217.The principles governing the inclusion issue are to be found in Jameel, Flood and Pui Kwan Kay. 218.The starting point is Jameel. There, Lord Hoffmann framed the question to be whether it was justifiable to include the defamatory statement. The word “justifiable” was used twice in his speech – in §§48 and 51. The following passage in §51 is material:
219.The above passage sets out clear guidance on how the court should determine the second stage question. I derive two points from it:
220.I would pause here to note that the term “justifiable” was also used in Blakeney-Williams v Cathay (see §§145 and 151). In that case, however, an assumption was made at first instance that the first two components of the three-pronged inquiry were satisfied. The inclusion issue therefore did not fall to be decided. 221.The facts in Jameel are summarised in Gatley at §15.1 in footnote 11. In February 2002 (ie shortly after the 9/11 attacks in the United States), the Wall Street Journal published an article claiming that at the request of US law enforcement agencies the Saudi Arabian central bank was monitoring accounts of some of Saudi Arabia’s most prominent businessmen in a bid to prevent them from being used, wittingly or unwittingly, for the funnelling of funds to terrorist organisations. The accounts of the claimants, a prominent Saudi Arabian businessman and his trading company, were named as being among this group. 222.Applying the inclusion test to the facts in Jameel, Lord Hoffman said this (at §52):
223.Lord Scott commented, at §142, that “[t]he names gave credibility to the story” and Baroness Hale remarked, at §148: “Without names, [the story’s] impact would be much reduced.” 224.This aspect of the case and the inclusion issue was considered in depth by Lord Mance in Flood, at §§132 to 137. Gatley comments, at §15.7, that the idea of leaving room for editorial discretion was a key feature of the speeches in Flood. 225.At §132, his Lordship said this:
226.In the paragraphs which follow, Lord Mance referred to the speech of Lord Hope in Re British Broadcasting Corpn [2010] 1 AC 145 (a case on anonymity order) which recited a number of judicial statements made in other areas which concern the inclusion of names. Of note are the following references (the emphases are mine):
227.The idea that one of the reasons that newspapers editors should be given latitude in deciding what to print in order to keep the newspapers in business had earlier been commented on by senior judges in England. In A v B plc [2003] QB 195 (a case, again, on anonymity order), Lord Woolf remarked that in the context where the information is something which the public have a legitimate interest in being told, “[t]he courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest.” (at §208). The idea was shared by Baroness Hale in Campbell, a case on the balance between an individual’s right to privacy and the freedom of expression. (“One reason why press freedom is so important is that we need newspapers to sell in order to ensure that we still have newspapers at all.”: at §56, my emphasis) 228.These statements should of course be understood in their proper context, namely that we are here concerned only with those newspaper stories which are on the whole legitimate stories concerning matters of public interest in the first place and should thus be published. They are not taken to mean that newspapers have a totally free hand to write whatever stories they wish so as to sell more papers and generate more revenues. Also, the consideration that press freedom should be allowed in order to maintain the viability of the press as a business is just one of the reasons why the court should generally defer to editorial judgment. 229.Having gone through the authorities discussing the issue of editorial judgment, Lord Mance set out the proper approach to follow when an issue arises as to whether the offending statement should be included:
230.In Pui Kwan Kay, at §§36 and 40, Lam VP expressly referred to this passage as one of the points “which are of particular relevance” and stressed that “the courts must give weight to the editorial judgments of journalists given their role in the overall equation of public interest” (emphasis added). 231.The above represents the approach which has been adopted by the courts in England and in Hong Kong when tackling the inclusion issue and the thinking behind. On the premise that the subject-matter of a publication as a whole is a matter of public interest, I would summarise the position of the second component of the Reynolds privilege as follows:
232.Having gone through the above analysis, I return to the “necessary vs reasonable” question. First of all, I would say that if I have to give a label to the test, I would follow Lord Hoffmann’s formulation by asking whether the inclusion was “justifiable”. But if I have to choose between the rival meanings put forward by the parties, I would prefer to adopt the “reasonable” label. 233.In my view, to the extent that the “necessary” test contended for by Mr Ng imposes a higher threshold than the approach which is outlined above, I would reject that to be the right test for the issue of inclusion. 234.It is true that from time to time judges use the words “necessary” and “unnecessary” when dealing with the second component. There are many examples. BaWang is one of them. Also see the extracts of judgments, with the references italicised in §§222, 225, 226 above. However, I would think that these references have been used, and should be understood, in accordance with the approach set out in the three important decisions on this issue, namely Jameel, Flood and Pui Kwan Kay. Put shortly, the “necessary” (or “unnecessary”) references, when used, simply signify the court’s acknowledgment (or disagreement) that it was legitimate for the editors in question to conclude that the relevant offending statement was needed to present the story in the best way. 235.On the other hand, the notion of reasonableness is a fluid one and is capable of being adapted for use as a legal test or control mechanism in different types of situations. 236.Broadly speaking, it would be reasonable to include the offending statement in the publication if the editors or journalists in charge, acting responsibly and within legitimate bounds, considered that there was a need for inclusion in order to better present the story. If such Reynolds reasonableness can be made out on the facts, then the publication passes the second stage test. 237.Was it justifiable for Apple Daily to include the references to Dr Chan in the 2nd article? I have to say that the answer is clear to me – it was. I take this view for the following reasons. 238.First, I agree with the proposition stated in the defendants’ pleadings that not only is the emergence and existence of pyramid schemes a matter of public interest, the identity of persons who may be involved in such schemes in Hong Kong is also a matter of public importance. It is therefore legitimate for Apple Daily to include the references to Dr Chan, given the connection he had to CKB168 through CLAP Group Ltd. 239.Second, the story as a whole was to inform the readers of the CKB168 pyramid scheme. The disclosure of individuals and companies connected to the scheme or CKB168, in one way or another and whether culpably or not, can be seen as, and does form, part of the story. The inclusion was clearly justifiable in that sense. 240.Third, on the facts as found, the decision to include references to Dr Chan in the 2nd article was one which Tam and Carmen Ng could legitimately make.
241.For these reasons, I reject Mr Ng’s submission that since the core target of the articles was the CKB168 pyramid scheme, the naming of Dr Chan would have meant nothing to the readership in general. I also reject the suggestion that the naming was an allegation that served no public purpose. Mr Ng also relied on the decision in BaWang. But the facts there are of course different and the decision itself has no bearing on the present case. Responsible journalism – what meaning(s) should Apple Daily have verified? 242.I now turn to address the question posed in §212 above. This concerns the extent of verification required of Apple Daily in the publication of the references to Dr Chan in the 2nd article. Subsumed in this issue is the requisite state of mind of Tam and Carmen Ng at that time. 243.In Reynolds, Lord Nicholls set forth what conduct is expected of the journalist who seeks to rely on the defence:
(This passage was adopted and cited in Blakeney-Williams v Cathay, at §135, by the Hong Kong Court of Appeal.) 244.In determining whether the journalist was acting responsibly, the court would look into what he had done, including (importantly) what verification he had performed, and what he believed in, when publishing the offending article. The following passages are relevant. 245.On the requisite state of mind, in Jameel, Lord Hoffmann remarked, at §62:
246.In Flood, Lord Phillips explained (at §79):
247.It is necessary to recall, on the facts as found, what verification Tam and Carmen Ng had undertaken and what they believed in when publishing the 2nd article.
248.Each of Tam and Carmen Ng were asked in cross-examination as to whether she considered that the articles would cause an ordinary reasonable reader to think that CLAP Group Ltd or Dr Chan was involved in the pyramid scheme. 249.Carmen Ng answered that she had not considered that. 250.Tam was more forthcoming and elaborate in her reply:
251.She was pressed on the same issue later on. She answered the question negatively. 252.The summation of the evidence and the inference to be drawn is therefore that when the articles were published, Tam and Carmen Ng did not believe in the level two meaning as true (because they simply did not know if it was true or not), did not go about trying to verify that meaning and did not consider that an ordinary reasonable reader of Apple Daily would understand the articles to bear that meaning. Verification was only done to the extent of the non-defamatory meaning, based on publicly available information. 253.Put shortly, the question therefore is this – was such conduct and belief good enough for the Reynolds defence? Should they have verified the the level two meaning? 254.On this issue, the relevant law is to be found in Bonnick, Flood and Pui Kwan Kay. 255.The issue arose before the Privy Council in Bonnick and the answer was determinative of the outcome. The article in question appeared in a leading newspaper in Jamaica and concerned two supplies contracts placed by a government-owned company (JCTC) with a foreign company (Prolacto). Mr Bonnick was JCTC’s managing director during the period when the contracts were entered into. The article quoted two sources – “one authoritative source” and Mr Bonnick himself. The article reported that according to the former source, there were irregularities and unusual aspects in these contracts. It then set out Mr Bonnick’s response which, in gist, was that everything had been done according to the rules. Then came the offending words: “Mr Bonnick’s services as managing director were terminated shortly after the second contract was agreed.” 256.The issues before the Privy Council were meaning and Reynolds privilege. It was held (at §12) that, when read against the context, the words would be understood by the ordinary reader to mean that Mr Bonnick had been dismissed because JCTC was dissatisfied with his handling of the Prolacto contracts as identified by the anonymous source. 257.In her evidence, the journalist did not ask her source about the reasons for Mr Bonnick’s dismissal. But, when approached, Mr Bonnick told the journalist that he was dismissed for a completely unrelated and innocuous reason. The journalist’s evidence was that she considered that both her source and Mr Bonnick honestly believed their versions of the disputed events and she did not know whose account was correct. She left it to the readers to make up their minds (see §5). (This aspect of the case therefore raises a parallel to the present one – see Tam’s reference to “the readers’ own judgements” in her oral testimony.) 258.The court therefore had to consider whether by failing to verify the single (defamatory) meaning, the Reynolds defence would fail. 259.Lord Nicholls answered the question and provided his reasoning at §§24 and 25 judgment. They are material to the present case and I reproduce them below.
260.The actual ruling is in §27, in which Lord Nicholls said:
261.Two main points emerge:
262.In Flood, however, Lord Phillips took a different view on this issue and took a much stricter stance and imposed a much higher standard of conduct on a responsible journalist. (The outcome of the case did not turn on this issue because it was agreed at trial that the two rival meanings put forward by the parties (a Chase level two meaning and a Chase level three meaning, respectively) were so close that it was not necessary to choose between them for the purpose of Reynolds privilege: see §§9, 10 and 22.) 263.Nevertheless, his Lordship posed the following question:
264.In §51, extracts from §25 in Bonnick was quoted. While Lord Phillips endorsed the Bonnick approach by saying that it “makes sound sense”, he went on to answer the question he earlier posed as follows:
265.The requirement for a journalist to have regard to the range of meanings was reiterated in subsequent paragraphs (see §§52 and 81). 266.It is a little difficult to understand this part of the speech. While his Lordship explicitly endorsed the Bonnick approach, he nevertheless went on to say that the responsible journalist would be expected to verify the full range of meanings. The notion of “obviousness” was altogether omitted from his test. It seems clear that Lord Phillips would have decided Bonnick differently, because of the more stringent test he had in mind. In fact, his Lordship expressly remarked that he found the result reached in Bonnick “surprising” (§51). 267.Pausing here, Tam and Carmen Ng would fail the Flood test miserably as they had not even set out to verify the level two meaning save for the attempt to interview Dr Chan, which did not yield any result. Mr Ng relied heavily on Flood to contend that they were therefore not responsible journalists in the Reynolds sense. 268.Mr Shieh did not address this aspect of Flood in his written submissions at all. However, in his oral closing, he submitted that Flood has obviously gone too far. 269.It seems that Lam VP might have taken the same view in Pui Kwan Kway as Mr Shieh. His Lordship noted (at §48) that Lord Phillips “might be going further than [Bonnick]” and went on:
270.By adding the qualification italicised above, his Lordship was in effect re-introducing the notion of “obviousness” as a test or control mechanism for determining the extent of verification required of a responsible journalist. Lam VP’s approach represents the latest position in Hong Kong. 271.In sum, when determining the verification issue, I am to apply the Bonnick approach, as explained by Lam VP in Pui Kwan Kay. (The issue did not fall for consideration in the latter case though, as counsel did not argue the case on an alternative meaning. The issue there was whether the newspaper could establish responsible journalism in respect of the single (defamatory) meaning as found by the jury: see §§64-66.) 272.Just as the hypothetical reasonable reader is a device to control liability in the context of meanings and to strike a balance between free speech and reputation (see Gatley at §3.26, footnote 287), in the context of responsible journalism, the notion of “obviousness” is the device to gauge the extent of verification required of a responsible journalist and hence the viability of the defence in each case. It is therefore important to consider how the notion should operate in principle. 273.The word “obvious” is a commonly used word in our everyday vocabulary. It conveys the meaning of plain, clear or evident to see. However, it is not often employed as a legal concept or test to determine liability or viability of a defence. (The more familiar concept would be the test of “reasonableness”). And I would say it is not an easy concept to apply in the present context of responsible journalism. 274.As discussed at some length above, the single meaning which the court attributes to the article in question is the “most likely”, the “most tenable” or the “dominant” meaning within the range of reasonable meanings which the article conveys, then in what circumstances would such a meaning not be an “obvious” one? By definition, shouldn’t the single meaning be plain, clear or evident to see? 275.In fact, in his submissions on meaning, Mr Shieh suggested that one of the possible formulations for the single meaning may well be the “most obvious” one within the range. Applying this formulation, the Chase level two meaning would be the “most obvious” meaning. It would follow that Tam and Carmen Ng ought to have believed in and verified that meaning. They did not. They would fail the responsible journalist test. 276.But that cannot be right because it is implicit in the approach set out in Pui Kwan Kay and the actual outcome in Bonnick that the failure to verify the single meaning does not by itself defeat a Reynolds defence. I therefore think that the word “obvious” will have to be understood and applied in a special sense in the present context. 277.In Bonnick, in arriving at his decision that the defamatory meaning was “not so glaringly obvious”, Lord Nicholls highlighted a few features. I think they provide valuable insight on the present issue.
278.It is not possible to formulate any precise rules as to how to determine “obviousness”. It is probably not right to do so, as it is a question of degree and the issue must be resolved as part of an “overall assessment” of all the circumstances of the case. However, broadly speaking, I would think that the following factors are to be taken into account when the court considers the issue of obviousness:
279.Here, I have ruled that the articles convey four reasonable meanings insofar as Dr Chan is concerned. My task is to evaluate the “obviousness” of the level two meaning and consider whether the failure to verify that meaning would defeat the Reynolds defence. 280.Having considered all the relevant circumstances, I am of the view that the level two meaning is not so “obvious” that Tam and Carmen Ng’s failure to verify it should deprive them of the Reynolds privilege. I highlight below the considerations which feature more prominently in my deliberation process. 281.First, it must be acknowledged that it was a serious allegation to suggest that there are reasonable grounds for suspecting that Dr Chan knowingly participated in the CKB168 pyramid scheme. This was particularly so, given the high social profile he enjoyed in his profession and amongst his circle of friends and acquaintances. This was not a matter which a journalist in Tam or Carmen Ng’s position should ignore or take lightly when publishing the story. 282.Secondly, I accept Mr Shieh’s submission that the 2nd article is a moderately worded and balanced article. Amongst other things, it reports the facts of Dr Chan’s directorship and shareholding in CLAP Group Ltd and the latter’s registered office. These are stated to be information obtained from the Companies Registry. It reports the objective facts accurately. The language used is plain. As found, the account of Dr Chan’s denial in the street was also done in an objective and accurate manner. In fact, as noted at the outset, the story is structured such that the 2nd article, which is the only article referring to Dr Chan, is presented, in terms of both layout and content, as a standalone article. 283.Thirdly and consequently, I think Tam was justified in taking the position that all she had done was to lay out the objective facts before the readers. (And presumably that explains why she or Carmen Ng did not take any steps to verify the defamatory meanings.) I accept that on the face of the articles, she or Carmen Ng did not seek to imply or insinuate any wrongdoing on the part of Dr Chan. In Bonnick, it was observed that the article there did not associate itself with either of the two divergent versions of the events (§26). I think that observation applies with equal force in the present case. In other words, Tam or Carmen Ng did not take sides. 284.Fourthly, the single defamatory meaning did not arise by any actual words used in the articles. As I have ruled, it did not even arise by implication. It arose by inference. And I think the distinction between implication and inference is significant here. The journalists were not implying any wrongdoing in the articles. That was not the message which the readers would objectively understand the journalists to be sending. It was the readers themselves (those who subscribe to the level two meaning) who drew a conclusion of their own from the facts reported. It was a conclusion put upon the words by the readers. In Amalgamated Television v Marsden, an inference was described (at 167B-C) as follows:
285.There was clearly room for differences for what conclusion could arise. 286.Fifthly, we are as a consequence dealing with a fairly diverse range of reasonable meanings, with the meanings at the two ends being opposite to one another. At the one end, there is the most serious allegation of guilt on the part of Dr Chan. At the other end, the article simply informs the readers of the connection between Dr Chan, CLAP Group Ltd and CKB168, which is an innocuous meaning. This is a clear case where reasonable readers would genuinely and significantly differ over what the articles mean as far as Dr Chan is concerned such that no one meaning can be said to be “obvious”. 287.In conclusion, I am of the view that although, on the one hand, the single meaning which I have ascribed to the words in the 2nd article is the most likely meaning amongst the four reasonable meanings under the single meaning rule; on the other hand, in the context of responsible journalism, the “obviousness” of that meaning is much diminished by reason of the matters highlighted above. I hold that it was not such an obvious meaning that Tam and Carmen Ng’s failure to verify it should disqualify them as responsible journalists. In the circumstances, they would be quite entitled to rely on the steps taken by them in verifying the innocuous meaning in establishing responsible journalism. I shall now address this issue in the final part of the discussion. Responsible journalism – did Apple Daily pass the test? 288.The focus of this part of the discussion is the conduct of the journalists. Had Tam and Carmen Ng measured up to the standard of responsible journalism when publishing the articles? 289.The court is guided by the ten factors set out in Reynolds. I shall follow the approach adopted in Blakeney-Williams v Cathay at §149. It is not necessary to traverse all the factors in the list. I will instead address the considerations most pertinent to this case. And I shall do so by reference to the non-defamatory meaning relied upon by the defendants. 290.Mr Ng contended that most, if not all, of the ten factors militate against the availability of the Reynolds privilege as a defence to Apple Daily. However, that contention was premised on the basis that Tam and Carmen Ng should have verified the defamatory meanings the articles convey whereas I have held above that they were not so bound. Accordingly, many of the submissions made by Mr Ng no longer apply. 291.On the whole, having considered the steps taken by Tam and Carmen Ng, as set out above under the section “Investigation undertaken by Apple Daily”, I am satisfied that they acted fairly and responsibly in the gathering and publishing of the articles. The matters which I have highlighted in the previous section do apply here. In addition, the following factors are relevant. 292.On factors 3 and 4, as far as Dr Chan is concerned, the information comprises two matters – first, the information concerning Dr Chan’s connection with CKB168 through CLAP Group Ltd; and, second, his reaction when approached by Apple Daily. The sources are, respectively, information gathered from searches at the Companies Registry, which every member of the public can do (with a fee), and Carmen Ng’s first-hand knowledge of her encounter with Dr Chan on 16 November 2012. There is no suggestion that the company information reported in the articles is in any way inaccurate. It is entirely reasonable in a piece of investigative article for the journalists to include publicly available information as part of their story. On the facts as found, Dr Chan’s reaction on that day was accurately recounted in the 2nd article. Mr Ng criticised this part of the story as portraying Dr Chan to be evasive and having something to hide. The articles contain no express wording to that effect. If one was to gain such an impression by reading the articles, it would be a conclusion drawn by the readers themselves, notwithstanding the neutral and accurate language used. 293.On factor 7, Mr Ng described the way in which Apple Daily sought comments from Dr Chan as oppressive and the encounter on 16 November 2012 was “nothing more than an ambush”. The complaint here is twofold.
294.On this factor, I think the key consideration is whether Dr Chan was afforded a genuine and meaningful opportunity to answer the queries and put his side of the story to the newspaper if he so wished. It is clear, on the facts as found, that he had had ample opportunity to do so but he chose not to take it up. 295.The facts in Grobbelaar are of course very different and are not comparable to the present case. In any event, there was a difference of opinion between the judges of the Court of Appeal on whether Mr Grobbelaar had indeed been given a sufficient opportunity to respond. (Simon Brown LJ seemed to think so, at §33, whereas Jonathan Parker LJ thought not, at §208.) 296.I accept Mr Shieh’s submissions on this factor. It was a conscious decision of Tam and Carmen Ng to confront Dr Chan on his connection with, or knowledge of, the CKB168 pyramid scheme. They wanted a direct response from him. That is understandable. Carmen Ng did not have any success on her visit because she had not made a prior formal appointment. Nonetheless, Bonnie Ng had her name card. Dr Chan could have contacted Apple Daily if he wanted to. The articles were not published till 26 November 2012. It was also stressed that the journalists tried to seek out Dr Chan twice – after the visit on 16 November 2012, Carmen Ng called again by telephone for comments. Furthermore, on the facts as found, Carmen Ng did explicitly tell Bonnie Ng the purpose of her visit and mention “CKB168” and “pyramid scheme”. 297.It is clear from their evidence that both Dr Chan and Bonnie Ng took an unfavourable view of Apple Daily as a newspaper. Dr Chan said repeatedly in evidence that he did not want to have anything to do with Apple Daily. That might explain why he did not try to speak to Carmen Ng either on 16 November 2012 or subsequently. Whether to speak or not was obviously his choice. No criticism can be made of how he had handled the situation. However, the key consideration here is whether the newspaper had acted responsibly in giving him a genuine chance to comment before publishing the story. It did so. In the circumstances, very little weight can be given to the personal feelings or inconveniences experienced by Dr Chan during that short encounter on 16 November 2012. 298.On factor 9, Mr Ng’s complaint was that the articles did not raise queries or call for an investigation. I have to disagree. On the other hand, I find that the tone of the articles, in particular, the 2nd article, is mild, balanced and not sensational. As remarked in the previous section, it is clear from the language used that the articles did not take sides – it did not expressly or impliedly suggest guilt (or no guilt). 299.Lastly, on factor 10, no criticism can be made of the timing of the publication. Just two days before the articles were published, there was an event held by CKB168 at a hotel. The photograph showed a large turnout. The timing is accordingly legitimate and justified. 300.For the above reasons, I conclude that Tam and Carmen Ng had acted fairly and responsibly in gathering and publishing the articles. My conclusion on Reynolds privilege 301.In Pui Kwan Kay, Lam VP pointed out that in every Reynolds case, ultimately the question is whether it is in the public interest to publish the statement notwithstanding its defamatory sense. Asking this ultimate question has the “practical advantage” of placing greater emphasis on the overall balancing exercise. Following that approach, I now sum up my views on how the balance should ultimately be struck in this case. 302.I shall start with the right to protection of reputation. Here, Dr Chan has been defamed by the Apple Daily articles with an untrue imputation. Harm was caused to him. Prima facie he should be able to have recourse to the newspaper in order to vindicate his reputation. On the other hand, the subject-matter of the articles, namely the CKB168 pyramid scheme, was clearly a matter of public interest. This is something which the public have a right to know. The public should be told about such fraudulent scheme, particularly where there had been known cases of members of the public putting sizable sums of money into the scheme. One would think that it was indeed the responsibility of the press to report such matters so as to raise the public awareness. 303.Tam emphasised in evidence that that was indeed the purpose of the articles – to warn small investors to be careful about the companies they are investing in. I accept that that was the subjective intention. Objectively, the message was conveyed by the very first sentence of the 1st article: 「近年層壓式推銷「加料」混入投資騙局，市民須小心。」 (“In recent years pyramid marketing schemes have been ‘enhanced’ and blended in investment scams, citizens need to beware.”) Furthermore, it was legitimate for the journalists to include information about individuals and companies who were, in one way or another, connected to CKB168. That was part of the whole story. 304.In their investigation, Tam and Carmen Ng acted responsibly. It was logical for them to approach Dr Chan and feature him in the articles as he was a person of some social profile. They laid out the facts in the articles, without take sides or in any way suggesting culpability on the part of Dr Chan. In the end, some (reasonable) readers would infer that there were reasonable grounds to suspect wrongdoing while some others would not. What they have done seems to me to accord with the role of the press as a public watchdog and having the duty to disseminate information so that informed public debate on matters of public interest can follow. 305.In the present case, I am therefore satisfied that the incursion into the reputation rights of Dr Chan is justified. 306.Finally, to complete the balancing analysis, I would also approach the matter from the perspective of freedom of expression by the media. 307.I accept Tam’s evidence that what she and Carmen Ng had done in this case was essentially to lay out the objective facts before the readers on a matter of public interest. In my view, there is one key point here. The facts which connected Dr Chan to the CKB168 pyramid scheme were facts ascertained from public searches. They were facts which are in general accessible to members of the public. They were facts which were already in the public domain. It is the placing of those facts alongside the CKB168 story which has given rise to the Chase level two inference, perceived by some but not all of the readers. 308.But there is nothing inherently improper or irresponsible in the reporting of these objective facts in the first place. One asks rhetorically – is that not the very function of the press, which is to “communicate important information upon matters of general public interest”to the public? Is that not what “a free and vigorous press” is all about, ie “to keep the public informed”? If the press is to be prohibited from such type of reporting, ie the setting out of objective, publicly available facts in a matter-of-fact manner in the proper context in an investigative article, there must be a very strong countervailing factor. 309.I would accept that if the articles had been written in such an unambiguous way that would lead all or almost all readers to think that there are reasonable grounds to suspect wrongdoing by Dr Chan (ie the meaning was “glaringly obvious”), then it most probably would be a strong enough countervailing factor. And in that case the press should not be allowed to print the story in the absence of proper verification, without having to face the consequence. 310.However, where there would effectively be no consensus amongst the readers because they hold genuinely different but reasonable views about Dr Chan’s role or knowledge (ie the meaning was “not so glaringly obvious”), I do not think that this (limited) damage to Dr Chan’s reputation would be sufficient to deprive the public of the right to be told the information now set out in the articles. 311.For the above reasons, I am of the view that the public interest in the protection of reputation should yield to the freedom of expression in this case. The Reynolds defence is successfully made out. DAMAGES 312.If I am wrong in my conclusion on Reynolds privilege, Apple Daily would have been liable to Dr Chan. I have considered the parties’ written submissions on damages. I would have assessed general damages in the sum of $400,000, having taken into account the seriousness of the libel, the harm done to Dr Chan’s reputation bearing in mind his social status in Hong Kong and the story being printed on an inside page (A8). I would not have made an award of aggravated damages. There is no basis for me to do so, having regard to the conduct of the defendants. CONCLUSION 313.In summary, I hold that the 2nd article, when read against the articles as a whole, contains a defamatory imputation of Dr Chan. It carries the meaning that there are reasonable grounds to suspect that there is a nefarious connection between him and the CKB168 pyramid scheme and that he knowingly participated in it. However, Apple Daily has successfully invoked the defence of Reynolds privilege and should not be held liable. 314.I therefore order that Dr Chan’s claim be dismissed. I further make an order nisi that the 1st to 4th defendants do have costs of the action, to be taxed if not agreed, with a certificate for two counsel.
Mr Lawrence Ng and Mr Victor Lui, instructed by Shaw & Ng, for the plaintiff Mr Paul Shieh, SC and Ms Queenie Lau, instructed by Deacons, for the 1st to 4th defendants [5] see: Gatley, supra, §3.17; Next Magazine Publishing Ltd. & Others v Oriental Daily Publisher Ltd (2000) 3 HKCFAR 160, 166. [6] see: Garley, supra, §3.31, Duncan and Neill on Defamation, 4th ed., §5.25; see also Charleston v News Group Newspapers Ltd. [1995] 2 AC 65 and Wong Wai Kay v Hong Kong Economic Journal Co. Ltd. [2013] 3 HKLRD 27. [7] Lewis v Daily Telegraph [1964] AC 234 at 271 per Lord Hodson [8] [2008] EWCA Civ 130, at §14 [9] Gatley, supra, at §3.17 [10] Carter-Ruck on Libel and Privacy, 6 ed., at §§4.36-4.37 [11] Berezovsky v Forbes Inc [2001] EWCA Civ 1251 at §16 [12] [2013] 3 HKC 457 [13] at §§139 & 140 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
The three defamatory meanings are effectively different shades of meanings, all pointing to guilt or possible guilt on the part of Dr Chan. When deciding which one of them is the “right” meaning, I bear in mind the general observations made in Horlick and Lord McAlpine. I also remind myself of the oft-repeated remark that while a reasonable reader may indulge in some loose thinking, he is not avid for scandal. The observation made in Lennon that readers are nowadays better informed than in the past, in my view, applies equally in Hong Kong. Accordingly, I would also rule out the level one meaning. That is the most serious meaning amongst the three defamatory imputations and therefore lies at the very end of the scale of meanings. 
In Jameel, Lord Hoffmann outlined how Reynolds privilege should be dealt with sequentially at three stages (at §§51 and 53):Cases cited in this judgment
Further hearings and rulings under DCCJ 1474/2013