Oriental Press Group Ltd. and Another v. Next Magazine Publishing Ltd. and Others

CACV000371/2000

CACV371/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 371 OF 2000

(ON APPEAL FROM HCA 11900 OF 1995)

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Coram: Hon Leong CJHC, Wong JA & Yeung J in Court

Date of Hearing: 13 June 2001

Date of Judgment: 27 June 2001

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J U D G M E N T

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Hon Leong CJHC (giving the judgment of the Court):

1.On 18 November 2000, the Oriental Press Group Ltd (lst plaintiff) and Ma Ching Fat (2nd plaintiff) issued a writ against Next Magazine Publishing Ltd (lst defendant), Cheung Kim Hung (2nd defendant) and Toppan Printing Co. (H.K.) Ltd (3rd defendant) claiming damages for defamation. The proprietor and publisher of Next Magazine is the lst plaintiff and the 2nd defendant and the 3rd defendant are respectively the chief editor and printer of the magazine. The plaintiffs claimed that an article published in the Next Magazine on 1 June 1995 was libelous in that it contained imputations that the 2nd plaintiff abused his position as a director and officer of a public company and was guilty of insider dealing within the meaning of the Securities (Insider Dealing) Ordinance. The defendants in their defence denied the article bore or capable of bearing the meaning claimed by the plaintiffs. They also pleaded justification and fair comment. The plaintiffs replied that the defence of fair comment was defeated by the defendants' malice in publishing the article.

2.The trial was before Chung J and a Jury. The plaintiffs called no oral evidence and relied on the documentary evidence before the court. At the end of the plaintiffs' case, the defendants made three applications of no case to answer. In the first application, they submitted that the lst plaintiff had not made out a case against them. In the second application, they asked the judge to withdraw the issue of exemplary damages from the jury. In the third application they asked the judge to withdraw the issue of malice from the jury because there was no or insufficient evidence for the jury to make a finding of malice on these matters.

3.On 14 July 2000, Chung J ruled that the lst plaintiff had no case against the defendants and dismissed the lst plaintiff's case. On the other issues, the judge ruled that the issue of exemplary damages should not be left to the jury. But there was evidence to go to the jury for determination on the question of malice. The trial continued but only in respect of the 2nd plaintiff's claim against the defendants. At the trial, the defendants no long pursued their defence of justification leaving fair comment as their substantial defence.

4.On 17 July 2000, the 2nd plaintiff obtained judgment and award of damages against the lst defendant and the 2nd defendant. The 3rd defendant obtained judgment against the 2nd plaintiff.

5.The defendants appealed against Chung J's order on 14 February 2000 and the judgment on 17 July 2000.

6.The plaintiffs' case on malice relies on the matters particularised in paragraph 9 of the Re-Re-Re Amended Statement of Claim and originally pleaded in support of their claim for exemplary damages. They also relied on paragraph 2(2) of their Reply. There is no suggestion that these particulars are not supported by evidence. They are summarised on page 12 of the judge's ruling as follows:

(a) the affiliated companies of D1 and D2 are and were keen competitors and rivalries of the affiliated companies of P1;

(b) the existence of numerous court actions between the 2 groups;

(c) "Next" Magazine, Apple Daily and other publications are and were "sister" publications;

(d) the editorial management of the said publications held regular joint meetings every month;

(e) the lack of honest belief as to the truth of the facts stated in the subject article or correctness/fairness of the comment;

(f) it can be inferred that the defendants intended to harm/injure the plaintiffs.

7.That the above is a correct summary of what the plaintiffs relied on is not disputed. What the defendants complain about the judge's ruling is firstly, the judge adopted the wrong test in deciding whether the issue of malice should go to the jury and secondly, if the judge had adopted the right test, on the evidence adduced by the plaintiffs, there is no sufficient evidence for the issue to be left to the jury.

8.Mr Ronny Tong SC for the defendants submits that there must be admissible evidence which is more consistent with malice than its absence before the issue can be left to the jury. He cites the following passages from Gatley on Libel and Slander, the 8th Edition and the 9th Edition in support of his proposition but he submits the 8th Edition is to be preferred.

9.Paragraphs 794-5 of the 8th Edition are as follows:

"794 If the judge rules that there is no evidence, or not more than a scintilla of evidence, as to malice, it is his duty to withdraw the case from the jury and to enter judgment for the defendant; a different course would be contrary to principle, and would deprive the honest transactions of business and of social intercourse of the protection which they ought to enjoy. So also the judge should withdraw the case from the jury where the evidence is equally consistent with either the existence or the non existence of malice, for then there is nothing to rebut the presumption of bona fides arising from the fact that the occasion is privileged....

795 In order to enable the plaintiff to have the question of malice submitted to the jury, it is necessary that the evidence should raise a probability of malice and be more consistent with its existence than with its non-existence. It is not sufficient if it falls short of that and is consistent only with a mere possibility."

10.Paragraph 34.18 of the 9th Edition is this:

"It is for the judge to decide whether there is any evidence of express malice fit to be left to the jury - that is, whether there is any evidence on which a reasonable man could find malice. What is evidence fit to be left to the jury? Evidence which is equally consistent with either the existence or non-existence of malice has been said to be insufficient ... It has been stated that to entitle the plaintiff to have the question of malice left to the jury, it is necessary that the evidence should raise a probability of malice, and be more consistent with its existence than its non-existence. It is submitted this is another method of formulating the proposition that there must be sufficient evidence upon which a reasonably minded jury properly directed could reach a finding of malice before the issue is left for their consideration."

11.A number of authorities: Walton v Deaton [1930] 31 SR (NSW) 393; Godfrey v Henderson and another [1944] 44 SR (NSW) 447; Telnikoff v Matusevitch [1991] 1 QB 102; Turner v MGM [1950] All ER 449; McKenzie v Mergen Holdings Pty Ltd [1990] 20 NSWLR 42 are also referred to. Mr Tong submits that on these authorities, once the comment has been established as fair, it is presumed to have been made with honest belief and the defence would only be defeated by proof of malice. The test relating to when an issue of malice should be left to the jury is no different whether the defence is qualified privilege or fair comment and that is, there must be evidence of a high probability of there being malice. The judge was wrong in failing to consider that the evidence should raise a high probability of there being malice. Mr Tong also complains that the judge was wrong to reject the approach submitted by the defence that each of the matters relied upon by the plaintiff should be analysed to see if it is sufficient to go the jury for the malice issue. Reliance is put on the following passage in the judgment of Lord Porter in Turner:

"...No doubt, the evidence must be more consistent with malice than with an honest mind, but this does not mean that all the evidence adduced of malice towards the plaintiff on the part of the defendant must be set against such evidence of a favourable attitude towards him as has been given and the question left to, or withdrawn from, the jury by ascertaining which way the scale is tipped when they are weighed in the balance one against the other. On the contrary, each piece of evidence must be regarded separately, and, even if there are a number of instances where a favourable attitude is shown, one case tending to establish malice would be sufficient evidence on which a jury could find for the plaintiff. Nevertheless each particular instance of alleged malice must be carefully analysed, and, if the result is to leave the mind in doubt, then that piece of evidence is valueless as an instance of malice whether it stands alone or is combined with a number of similar instances" (at page 455).

12.Mr Tong says that in so far as what the judge had relied on Mckenzie v Mergen Holding Pty Ltd, Mckenzie must give way to Turner and Telnikoff.

13.In Telnikoff, in relation to the correct test for malice, Lloyd LJ said (at page 120):

"The point is quite simple. If a piece of evidence is equally consistent with malice and the absence of malice, it cannot as a matter of law provide evidence on which the jury could find malice. The judge would be bound so to direct the jury. If there are no pieces of evidence which are more consistent with malice than the absence of malice, there is no evidence of malice to go to the jury."

14.In Walton v Deaton, Halse Rogers J said at page 400:

"The real question in this case is whether from the evidence in question the jury could legitimately draw the inference that such motive existed. They could not do so legitimately unless the evidence made the existence of such a motive probable...... In Somerville v Hawkins (10 CB 590) it was laid down that 'it certainly is not necessary, in order to enable the plaintiff to have the question of malice submitted to the jury that the evidence is such as necessarily leads to the conclusion that malice existed, or that it should be inconsistent with the non-existence of malice; but it is necessary that the evidence should raised a probability of malice, and be more consistent with its existence than with its non existence.' This rule was recognised in many cases and was adopted by the Privy Council in Laughton v The Bishop of Sodor & Man (LR4 PC 495)."

15.The same passage in Somerville v Hawkins was cited in the judgment of Lord Porter in Turner v MGM (at p.455) when his Lordship dealt with the question of sufficiency of evidence for the jury to decide on the issue of malice in the defence of qualified privilege.

16.The head-note of Godfrey v Henderson says in essence that substantial evidence of malice, not surmise or a mere scintilla of evidence is required to destroy the defence of qualified privilege.

17.In Mckenzie, Clark JA rejected the proposition of the respondents that a plaintiff must lead evidence of malice of such persuasion as to satisfy the trial judge that there is a probability that the deft was actuated by malice before he is entitled to have the issue left to the jury. After referring to the passage in Somerville which was cited in Walton v Deaton and in Turner v MGM, his Lordship said (at p.49):

" The question which then arises is whether it stands as authority for the proposition advanced by counsel for the respondent. I do not think that it does. The question whether there is evidence on an issue fit for submission to the jury is a question of law which does not involve the weighing or balancing of competing evidence. It is to be contrasted with the question which arises when it is submitted that a jury finding is against the weight of evidence. That question is one of fact and requires the balancing of the totality of evidence in the case: see Glass (at 843) and Dublin Wicklow and Wexford Railway Co. v Slattery (1878) 3 App Cas 1155 at 1168."

18.In our opinion, the test in all the authorities cited, is in essence no more than there must be evidence which a jury reasonably directed would find on balance of probabilities there was malice, before the issue of malice can be left to the jury.

19.The judge in his ruling at page 13 and 14, after rejecting the argument of counsel for the defendants that the matters relied upon by the plaintiffs in support of "malice" is as consistent with the presence of malice as with its absence, said this:

" Further, I do not agree with Mr Shieh's approach which in effect is to analyse each of the matters relied upon by the Plaintiffs' separately. As pointed out in Mckenzie v Mergen Holdings Pty Ltd [1990] 20 NSWLR 42 at 51D to E :-

'Proof of malice involves, in almost every case, the drawing of inferences from proven facts. What the plaintiff seeks to persuade the jury is that because of the defendant's conduct prior to and following the publication of the defamatory statement or in some cases, because of the exaggerated terms of the defamatory statement itself, or a combination of both, the inference should be drawn that the deft was actuated by malice in defaming the plaintiff. The case is not unlike one in which a jury is invited to infer negligence from purely circumstantial evidence ...'

A matter may have a neutral appearance when considered on its own. However, a different complexion may be cast on the matter if a sufficient number of such matters are considered together.

For those reasons, I disagree with Mr Shieh's contention that the Plaintiffs are only able to adduce a scintilla of evidence which is not reasonably capable of supporting an inference of malice."

20.In our opinion, clearly the judge was aware of the need to have evidence of malice which is more than a scintilla and not a mere surmise before the issue can be left to the jury. He was equally aware that it was for the jury to decide on balance of probabilities whether malice existed and not for him to weigh the evidence first before leaving it to the jury. If he were to weigh the evidence, he would have usurped the function of the jury. We do not think that Turner requires the judge to considered each piece of evidence separately first before he leaves the issue to the jury. If taking all the evidence together it is capable of enabling the jury to consider whether the test is satisfied, the judge should leave the issue to the jury. The judge was not wrong in his approach.

21.On the question of evidence of malice, Mr Tong referred to Cheng Albert v Tse Wai Chun Paul [2000] 4 HKC 1; [2000] 3 HKLRD 318, and submits that the only issue now is honest belief and motive, spite or ill will is irrelevant. Therefore one must look at the matters relied on by the plaintiff to see if the evidence is more consistent with dishonest belief than its absence. He submits that it is a fact that the defendants' affiliated companies and the plaintiffs' affiliated companies are business rivals and competitors and there are a number of pending actions between them. The nature of these actions are not known and for that matter it may be some matters entirely impersonal or innocuous. The mere fact of rivalry and litigation between the defendants and the plaintiffs does not indicate dishonesty. At the most it would only give rise to a mere possibility of ill will between them or a possibility of dishonesty, but that is not sufficient for the issue to go to the jury. There is no suggestion, let alone evidence, that in the regular joint meetings of the editorial management of the magazine the defendants conspired or concocted a campaign to harm or defame the plaintiffs. These meetings are entirely consistent with there being no malice. All these maters, singly or collectively do not amount to evidence from which the jury may infer dishonesty on the part of the defendants.

22.On the other hand, Mr Edward Chan SC for the plaintiffs submits that the rivalry and bad blood between the parties is evidenced by the numerous litigations between them and it may be inferred that the defendants might be pursuing a campaign against the plaintiffs out of spite or ill will which is evidence from which lack of genuine belief in the comments may be inferred.

23.In our opinion, the judge had looked at all the matters relied on by the plaintiffs in the round when he concluded the issue of malice should be left to the jury. Clearly these matters are evidence of ill will or spite between the defendants and the plaintiffs which is capable of establishing dishonesty on the part of the defendants to publish the article. As we have said earlier, the judge had adopted the right test and was entitled to conclude that there was sufficient evidence to leave the issue to the jury.

24.Regarding to the judge's directions on fair comment, the defendants complained that a number of errors of law and mis-directions had been made by the judge. The judge on page 11 of the summing up directed the jury on the issue of malice as follows:

"Now, I move on now to the question of malice. Now, by the time you need to consider this aspect, it would mean that you have already found the defamatory statements were comments and that they were fair because otherwise, the defence of fair comment already failed. Now, the burden of proving malice is on the 2nd plaintiff. Now, the reason why malice would defeat the defence of fair comment is that a person, although the law recognises freedom of speech, a person cannot abuse his freedom of speech by making comments with improper motive.

Now, in considering this aspect, you would like to bear in mind what malice means. Malice in daily language means ill-will, spite, bad faith or a desire to harm or injure. Now, in law, although that is one type of malice, it is not necessary for a plaintiff to prove that. Instead, malice in law can be proved if there is evidence that the comments were not made honestly for the proper purpose, now provided this improper motive or improper purpose was the dominant reason for making the comment."

25.In Cheng Albert, the Court of Final Appeal has made it clear that the courts should adopt a generous approach to the defence of fair comment:

"In a society which greatly values the freedom of speech and safeguards it by a constitutional guarantee, it is right that the courts when considering and developing the common law should not adopt a narrow approach to the defence of fair comment. See Eastern Express Publisher Ltd v Mo Man Ching Claudia [1999] 4 HKC 425 at 440, [1999] 2 HKCFAR 264 at 278. The courts should adopt a generous approach so that the right of fair comment on matters of public interest is maintained in its full vigour." (per Li CJ at page 6)

26.The conclusion of the Court of Final Appeal in this case is summarised in the judgment of Lord Nicholl as follows (at page 22):

"... To summarise, in my view a comment which falls within the objective limits of the defence of fair comment can lose it immunity only by proof that the defendant did not genuinely hold the view he expressed. Honesty of belief is the touchstone. Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive, does not of itself defeat the defence. However, proof of such motivation may be evidence, sometimes compelling evidence, from which lack of genuine belief in the view expressed may be inferred. Proof of motivation may also be relevant on other issues in the action, such as damages.

It is said that this view of the law would have undesirable consequence that malice would bear different meanings in the defences of fair comment and qualified privilege, and that this would inevitably cause difficulty for juries. I agree that if the term 'malice' were used, there might be a risk of confusion. The answer lies in shunning that word altogether. Juries can be instructed, regarding fair comment, that the defence is defeated by proof that the defendant did not genuinely believe the opinion he expressed. Regarding qualified privilege, juries can be directed that the defence is defeated by proof that the defendant used the occasion for some purpose other than that for which the occasion was privileged. This direction can be elaborated in a manner appropriate to the facts and issues in the case."

27.In our opinion, in the light of the present law relating to the defence of fair comment as stated in Cheng Albert, clearly the judge's direction was wrong. We hasten to add that the judge's direction was given before Cheng Albert was decided in the Court of Final Appeal and the judge should not in any way be criticized for following an approach in the law relating to fair comment which thitherto was regarded as correct. Be that as it may, it was a misdirection and the verdict of the jury should not be allowed to stand. The defendants' appeal against the judgment obtained by the 2nd plaintiff is allowed. In these circumstances the normal course is for this court to order a retrial.

28.Mr Chan submits that notwithstanding that the judge had not directed the jury in accordance with Cheng Albert, there was no miscarriage of justice. We do not agree. The defendants are entitled to have the case to be put again before a fresh jury for determination in accordance with the law as it now stands.

29.That leaves the question of whether all the issues in the case should be retried. Mr Chan refers to Broadway Approvals Ltd v Odhams Press Ltd [1965] 1 WLR 805 and the case of Telnikoff. In both cases, there was a misdirection on fair comment. In the former case, a retrial was ordered on the issue of fair comment and damages and in the latter case, on the issue of fair comment only.

30.Since the appeal is concerned with no more than the defence of fair comment, and damages is relevant to that issue, we order a retrial only on the issues of fair comment and damages.

31.We make a costs order nisi that the costs of this appeal shall be costs in the retrial.

32.What remains for us to deal with is the appeal by the 3rd defendant who had obtained judgment and costs against the 2nd plaintiff. The 3rd defendant in effect appealed against the costs order of Chung J in his ruling on 14 July 2000.

33.Mr Chan submits that this appeal is misconceived. An appeal against a costs order should be with leave but no such leave was granted and in any case, this was not in the Notice of Appeal.

34.We agree that the appeal of the 3rd defendant should be dismissed with costs to the 2nd plaintiff.

Representation:

Mr Edward Chan, SC and Mr Jat Sew Tong, instructed by Messrs Iu, Lai & Li for 2nd Plaintiff

Mr Ronny Tong, SC and Mr Paul Shieh, instructed by Messrs Deacons for Defendants