Easy Finder Ltd v. Oriental Daily Publisher Ltd and Another

1996, No. A482

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

____________

____________

Coram: The Hon. Mr. Justice Barnett in Court

Dates of hearing: 21 and 22 July 1997

Date of handing down of judgment: 1 August 1997

_______________

J U D G M E N T

_______________

Introduction

1. This is a battle between two members of the Hong Kong media, the one accusing the other of libel. The Plaintiff is the proprietor and publisher of a weekly magazine called "Easy Finder". The 1st Defendant is the proprietor and publisher of the Oriental Daily News, a daily newspaper. The 2nd Defendant is now publisher of that newspaper but at the material time was Chief Editor.

The Plaintiff's article

2. On 4th January 1996, the Plaintiff published an article under the headline "A New Aphrodisiac in 96. A fair lady loses her control in 5 minutes". This article was somewhat lengthy covering 3 pages together with illustrations. In summary, it concerned an apparently new drug being distributed by one "Bobby". This drug was much in demand because, by mixing it in a drink where it was difficult to notice, it "changes a fair lady into an over-sexed [one]". The article continued "apart from criminals, it is said that it is extremely welcomed by a group of white-collar workers who have non-appealing appearance. Ladies, please beware, it is because you will any time become the next target of this new drug".

3. The Plaintiff's article went on to give details of the activities of "Ah Lung" who, in order to overcome his lack of appeal to the opposite sex, had spiked the drinks of two waitresses with two or three of the new pills. One of the waitresses subsequently took the sexual initiative; the other simply became passive. Ah Lung "raped" both. The first did not remember what happened; the second "did not know why she had made love".

4. The article then gave further details of "Bobby's" activities. Apparently the new drug had wider appeal than existing aphrodisiacs because apart from criminals, it attracted "Gentlemanlike-scum white-collar workers". According to Bobby, this group included "those working in the banking and financial sectors and also insurance agents. The attraction of the drug lay in its strong effect and the fact that it was unknown to the police. During the recent Christmas and New Year it had had to be rationed.

5. The article warned:-

"it seems that ladies apart from taking thorough care to avoid falling into the trap, it is also hoped that the police can put more efforts to avoid innocent young girls from becoming the "big meal" of the group of "animals under the cover of hat and clothes".

6. The caption to one of the photographs illustrating the article said in part:-

"the users usually grind it into powder beforehand and secretly mix it into drinks such as beer. The purpose is to rape young girls while they are under the influence of drugs."

7. The article further warned that it is a criminal offence carrying a penalty of 14 years' imprisonment to administer a drug in order to stupefy a female to enable an unlawful sexual act to be performed, even if the act is not carried out. It then gave details of an experiment the reporter had carried out on a willing lady. Five minutes after taking the drug the lady had some sexual impulse and acted out of character.

8. The reporter had made enquires of a doctor and learned that taking aphrodisiac drugs could cause addiction and might destroy the sexual function. So that ladies might "avoid falling into the trap" the article gave some indication of what they might look for in the appearance and taste of drinks to which the drug had been added. The article suggested choosing canned drinks provided that they were seen when being opened, and warned that a lady should leave if she was in any doubt.

The Defendants' article

9. At the time when the Plaintiff's article was published, two MPs Sir Keith Speed and Mr. Terry Dicks were on a visit to Hong Kong. Because of Mr. Dicks' previous connection with the Oriental Press Group, the holding company of the 1st Defendant, he and Sir Keith met and had a discussion with Mr. Ma. Ching Kwan, a director of the Group. Mr. Ma contrasted the tough line taken by the Television and Entertainment Licensing Authority against one of his newspapers, the late Eastern Express, for publishing a photograph of a boy severely disfigured by burns in order to raise money for charity; and the lack of action in respect of articles like the Plaintiff's article or an article which appeared in another newspaper, the Apple Daily, about vice-establishments in Mongkok and the charges made by prostitutes in the form of an advertisement. The two MPs agreed to give an interview to the Oriental Daily News and Eastern Express.

10. The interview was on 4th January. The MPs expressed their views on a variety of topics including the Plaintiff's article and the article in Apple Daily. Next day, 5th January, the following article appeared in the Oriental Daily News

" British Members of Parliament angrily blast "Apple" for Preaching Obscenity and Demand the Tribunal to Explain and Stop the Evil Trend

[News of This Newspaper] Two Members of British Parliament felt anxious and angry towards the stepping-out of-line articles of two local publications which had been published for a long period of time in the past. They will send a letter to the Obscene Articles Tribunal of the Television and Entertainment Authority today demanding it to express concern to and to explain how to follow up this evil trend.

In an interview with our newspaper yesterday, Members of Parliament Sir Keith Speed and Mr. Terry Dicks, who are currently visiting Hong Kong, criticised that there was a column in the subordinate section of Apple Daily everyday introducing the situation of vice establishments in Mongkok vividly, with the price even listed and somewhat like the style of half-advertisement. This has embarrassed the readers in general. (1) Both of them also pointed to an articled recently published in Easy Finder which introduced how to use LSD to play tricks with drinks, in order to cause young girls to lose their virginity and become prostitutes, and to control them for the purposes of prostitution. (2) These contents made the normal readers feel angry. (3) They considered that this method of publication was too detailed and could be suspected of teaching people how to commit crimes, and could well amount to criminal conduct.

As said by Mr. Terry Dicks and Sir Keith Speed, if the Tribunal could be reasonably fair, the stepping-out-of-line contents of these two publications should be subject to disciplinary measures. In their letter of complaint, they will enquire why the Television and Entertainment Authority has not taken action after a long delay. They will also demand the Television and Entertainment Authority to give them a reply, otherwise they will make an enquiry at the British Parliament when opportunity arises.

These two MPs felt puzzled over the incident that 3 articles published by the Eastern Express last year had initially been classified as obscene, the verdicts of which were only overruled upon appeal and the classification of which were subsequently changed to "not obscene, not indecent". Particularly, the classification as obscene article by the Obscene Articles Tribunal of one of the photographs showing a boy whose face were burnt and was in a pitiable condition, which would have the effect of arousing those kind-hearted persons to make donations, would enrage the people. They pointed out, to rule that the photograph of the poor boy was more obscene and indecent than "stupefying of young girls" and "XX guide" was really ridiculous."

The pleadings

11. The passage which I have underlined and where I have introduced the numbering (the words) is the one complained of by the Plaintiff and for which it seeks damages and aggravated damages. The Plaintiff pleads that the words in their ordinary and natural meanings meant and were understood to mean

"(1) that the Plaintiff taught people how to administer drugs to drinks to be taken by young girls in order to stupefy them and enable men to have sexual intercourse with them, then turn them into prostitutes and control them for the purposes of prostitution;

(2) that the Plaintiff had published an article which caused the normal readers to feel angry;

(3) that the Plaintiff taught people how to commit crimes;

(4) that the Plaintiff was guilty or could well be guilty of criminal conduct."

12. As to aggravated damages the Plaintiff asserts:-

"(1) The Plaintiff published an article ("the Plaintiff's Article") entitled "96“新催情藥5分鍾淑女也失控”(96 New Seducer Drug - A Lady Would Lose Control in 5 Minutes)" in the 205th issue of Easy Finder on 4th January 1996.

(2) The reference in the said words to an article recently published in Easy Finder was a reference to the Plaintiff's Article.

(3) The said words complained of grossly distorted the contents of the Plaintiff's Article.

(4) In particular, the Plaintiff's Article did not mention anything about how young girls were turned into prostitutes or how they were controlled for the purposes of prostitution.

(5) Further, the Plaintiff's Article did not teach people how to commit crimes.

(6) On the contrary, the Plaintiff's Article expressly warned girls to be alert about the drinks that they took and contained useful "tips" to them on how to discover whether their drinks had been doped.

(7) The Article further expressly stated that it was a criminal offence for anyone to administer drugs an a woman with intent to stupefy her so as thereby to enable any man to have unlawful sexual intercourse with her, and that anyone found guilty of such an offence could be liable to imprisonment for 14 years.

(8) Prior to the publication of the said words, the Defendants knew or ought to have known of the contents of the Plaintiff's Article.

(9) In any event, by letter dated 9th January 1996, the Plaintiff's solicitors drew the Defendants' attention to the aforesaid matters and demanded the Defendants to publish an apology for having libelled the Plaintiff.

(10) Despite the aforesaid, the Defendants have failed and/or refused to publish or make any apology .

(11) In the premises, it is to be inferred that the Defendants, in publishing the said words, were actuated by malice."

13. According to the Plaintiff, publication of the words seriously injured its reputation and caused it loss and damage.

14. By way of amended defence, the Defendants pleaded that their article did not bear the meaning alleged by the Plaintiff but rather that

"Terry Dicks and Sir Keith Speed, two Members of the British Parliament who were then visiting Hong Kong, had during a recent interview with reporters of the Oriental Daily News, made the following statements of fact and/or opinion.

Statement of Fact

i. A recent publication of Easy Finder contained an article introducing how to play the trick of putting LSD into drinks in order to make girls to have sex with others.

ii. The above-mentioned article introduced how to play the trick of putting LSD into drinks in order to control girls to commit prostitution.

Statement of Opinion

iii. The content of the above-mentioned article will anger ordinary readers.

iv. The way of reporting is too detail.

v. The way of reporting may induce people to commit the crime.

vi. The way of reporting probably constituted a criminal act."

15. In so far as the words were commented, the Defendants asserted that they were fair comment on a matter of public interest

"(a) On 4th January 1996, the Plaintiff published an Article under the Headline "NEW SEDUCER DRUG FOR 96, EVEN A LADY WOULD LOSE CONTROL IN 5 MINUTES" at pages 22-24 of the 205th issue of the Easyfinder ("the Plaintiff's Article").

(b) The Plaintiff's Article contained reference to and/or the introduction of a new seducer's drug for 1996 which would cause any lady to lose their self-control when administered upon and would cause them submit to one's lecherous and lascivious desire.

(c) The Plaintiff's Article quoted, as real example, how one Bobby, the pseudonym of the new seducer drug peddler, supplied the said new seducer drug to lecherous and lascivious men who purchased the same with a view to administering the same upon women for unlawful and immoral purposes.

(d) The Plaintiff's Article quote real examples and described, in minute details, how effective the said new seducer drug was in causing any ladies to lose control of themselves and then submitting themselves to the lecherous and lascivious desire of person administering them.

(e) The contents of the Plaintiff's Article gave description in minute details as to how the said new seducer drugs might be used and administered upon women and the effect upon them.

(f) Since publication of the Plaintiff's Article, the general public was concerned as to the possible adverse effect of the publication of the Plaintiff's Article, in particular, the adverse effect when persons with unlawful and immoral motive obtaining supply of an using the said new seducer drugs."

16. The Defendants rely if necessary on S.27 of the Defamation Ordinance Cap.21.

17. The Defendants also assert that, insofar as the words consist of facts, they were true.

"i. Paragraph 12 above is repeated.

ii. In the Plaintiff's Article, it was stated that prior to the emergence of the new drug, users of similar drugs were confined to (“姑爺仔”) meaning pimps, and (“古惑仔”) meaning triad members. The Plaintiff's Article went on to state that the new drug attracted a new class of users, namely, white collar delinquents." (for the purpose of the trial, it was agreed that "criminals" should be substituted for" triad members)

"iii. It is implied in the Plaintiff's Article that the new drug and drugs of similar natures were used by undesirable elements in controlling girls to commit prostitution."

18. Paragraph 12 there referred to is the Defendants' plea of ordinary and natural meaning.

19. The Defendants also rely on S.26 of Cap.21, if necessary.

Fact or opinion

20. It is not in dispute that in order to determine whether words alleged to be defamatory are a statement of fact or opinion, the court must look only at the article containing the words: Telnikov v. Matusevich [1992] 2 A.C. 342. It is also not in dispute that sentence (1) complained of is a statement of fact.

Sentence (1)

21. For the Plaintiff, Mr. Robert Tang S.C. submitted that the word "introduced" means "taught" as alleged in para.6(1) of the statement of claim. He suggested that the Defendants could and should have used a more appropriate verb such as "described" or "warned". He said that the Plaintiff was accused of deliberately explaining how the new aphrodisiac could be used with the intention that young girls should become and could be controlled as prostitutes. That Mr. Tang said is a very grave allegation and untrue.

22. It is for Mr. Tang to establish this defamatory meaning. The test is an objective one, namely whether a reasonable man of ordinary intelligence and with ordinary knowledge and experience of well the affairs would be likely to understand the publication in a libellous sense: Gatley on Libel and Slander [8th ed.,] paras.88, 93 and 114.

23. For the Defendants, Mr. John Griffiths, S.C. submitted that this sentence contains correct statements of fact correctly summarising the thrust of the Plaintiff's article. He said that "introduced" is a neutral term and espoused the meaning "to bring a person into the knowledge of something" as found in the Oxford English Dictionary. That dictionary, however, immediately goes on to give the meaning "to teach, instruct". It also gives meanings of making a person known to another and "to bring to the notice or cognizance of a person".

24. The Plaintiff's article, of which I have given the flavour, is what I suppose might be called an expos(. It is a mixture of explanation of what the drug will do and how it can be applied; illustration in a somewhat prurient form; overview of the drug scene and grim warning. With that in mind, I am not persuaded that the ordinary man would have considered that the Plaintiff was teaching him in the formal sense and certainly not with the intention that women should be turned into prostitutes. Rather, I am persuaded that the ordinary man would have believed he was being informed.

25. It is fair also I think to contrast "introduced" with the qualified use of "teaching" in sentence (3).

26. But the matter does not rest there. The Plaintiff's article contains no reference to "prostitutes" nor "to control them for the purposes of prostitution". According to Mr. Griffiths, however, these words are justified from the article viewed as a whole. In particular, he said the article states that customers for the drug include "young pimps and criminals". The activities of such persons, said Mr. Griffiths, include getting control of girls so as to make them prostitutes for the purpose of making money out of prostitution. Mr. Griffiths also relied on the passage which I have quoted about girls becoming "big meal". From all these, he said, it is a fair inference that the Plaintiff's article was directed towards prostitution.

27. In my judgment, that is a complete travesty of what is, it must be admitted, a most unappealing article. The whole thrust of the Plaintiff's article is not that the pimps and criminals were moving or indeed being encouraged to move in, but to warn ladies that more respectable men were beginning to use the drug simply to ensure that they would have sexual intercourse but without any more sinister motive.

28. I find therefore that, however "introduced" is construed, the substance of sentence (1) is simply not true. It is defamatory.

Sentence (2)

29. Mr. Tang argued that this is a statement of fact which is defamatory because it implies the content of the Plaintiff's article was such as would make a normal reader angry. In context, he said, it reinforces the sting of sentence (1) and the reason for anger is explained by sentence (3).

30. Mr. Griffiths submitted that the sentence is a statement of opinion as expressed by the two MPs.

31. A writer does not need to give particulars of the fact or facts on which he is commenting. It is sufficient if he identifies the facts so as to enable the reader to carry out his own verification. Assuming that is done, the question then is whether the comment is such as an honest, albeit prejudiced, man might make: Kemsley v. Foot & Ors [1952] A.C. 345.

32. The Defendants' article plainly identified the Plaintiff's article as its object. As a matter of law, therefore, this sentence is capable of being fact or comment. Fact and comment are, however, frequently difficult to disentangle. Some help was afforded by Lord Porter who delivered the leading speech in Kemsley and who said at p.356

"The question, therefore, in all cases is whether there is a sufficient substratum of fact or indicated in the words which are the subject-matter of the action, and I find my view well expressed in the remarks contained in Odgers on Libel and Slander (6th ed., 1929), at p.166. "Sometimes, however," he says, "it is difficult to distinguish an allegation of fact from an expression of opinion. It often depends on what is stated in the rest of the article. If the defendant accurately states what some public man has really done, and then asserts that 'such conduct is disgraceful,' this is merely the expression of his opinion, his comment on the plaintiff's conduct. So, if without setting it out, he identifies the conduct on which he comments by a clear reference. In either case, the defendant enables his readers to judge for themselves how far his opinion is well founded; and, therefore, what would otherwise have been an allegation of fact becomes merely a comment. But if he asserts that the plaintiff has been guilty of disgraceful conduct, and does not state what that conduct was, this is an allegation of fact for which there is no defence but privilege or truth. The same considerations apply where a defendant has drawn from certain facts an inference derogatory to the plaintiff. If he states the bare inference without the facts on which it is based, such inference will be treated as an allegation of fact. But if he sets out the facts correctly, and then gives his inference, stating it as his inference from those facts, such inference will, as a rule, be deemed a comment. But even in this case the writer must be careful to state the inference as an inference, and not to assert it as a new and independent fact; otherwise, his inference will become something more than a comment, and he may be driven to justify it as an allegation of fact.

But the question whether an inference is a bare inference in this sense must depend upon all the circumstances."

33. It is important then for the writer to give some indication that his words constitute inference or comment. This was echoed in London Artists Ltd. v. Littler [1969] 2 Q.B. 375 where Edmund Davies L.J. said at p.395

"It behoves a writer to indicate clearly what portions of his work are fact and what are comment, for, in the words of Fletcher-Moulton L.J. in Hunt v. "Star" Newspaper Co. Ltd. [1908] 2 K.B. 309, 319: "... comment in order to be justifiable as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment: see Andrews v. Chapman (1853) 3 C. & K. 286."

Failure to exhibit clarity in this respect carries its own risks, for, as Fletcher-Moulton L.J. went on to say, at p.320:

"Any matter, ... which does not indicate with a reasonable clearness that it purports to be comment, and not statement of fact, cannot be protected by the plea of fair comment."

34. A further warning was given in Telnikoff where at p.352 after considering the offending letter, Lord Keith of Kinkel said:

"Drake J. took the view that paragraphs 6 and 7 did no more than express what would be the logical outcome if the views stated in the plaintiff's article were given effect to, while Lloyd L.J. said [1991] 1 Q.B. 102, 111E, that the sense of the words in paragraph 6 was "Mr. Telnikoff in effect demands ..." But the fact remains that the writer of the letter has used no such words nor any others apt to indicate that what he has written are inferences drawn from the terms of the article."

35. At p.353, Lord Keith continued

"Lloyd L.J. also considered that if juries were not allowed to consider the terms of articles upon which newspaper correspondents chose to comment, the whole text of the article would have to be set out in the letter, a condition which would be unacceptable to newspaper editors, so that free discussion of matters of public interest would be restricted. That apprehension is not, in my view, well founded. The writer of a letter to a newspaper has a duty to take reasonable care to make clear that he is writing comment, and not making misrepresentations about the subject matter upon which he is commenting. There is no difficulty about using suitable words for that purpose, such as those which Lloyd L.J. thought capable of being implied. Likewise any newspaper editor should under no difficulty in observing whether his correspondent has used language apt to make clear that what he writes is pure comment and does not contain misrepresentations about what he is commenting on."

36. At p.356, Lord Templeman said:-

"It was argued that a newspaper could only protect itself against an action for defamation by confining criticism to passages actually set out in the criticism. I do not agree. Any critic, whether private or public, whether individual or press, must simply make clear that he is not quoting the plaintiff but is commenting on words which the plaintiff has uttered."

37. The Defendants make no attempt to indicate that this sentence is inference or opinion. It certainly appears more as a continuation of (1), which is admittedly fact, than (3) which commences "they considered", words which immediately suggest opinion or comment. After many readings, however, I find that on balance, but only just, (2) is not a statement of fact. It is clear that the Defendants' article is no more than a report of an interview with the two MPs. I find that, after drawing attention to the Plaintiff's article, the MPs went on to comment upon it. This sentence seems in the end to have greater affinity with (3) which affords some explanation for the anger.

38. It is one thing to comment that information imparted to readers has angered or upset them; it is quite another to comment that the manner or motive of the publisher of that information has angered readers. The latter is plainly defamatory.

39. Was the opinion honestly held? Certainly, it was the opinion of the two MPs, as their evidence showed. The author of the Defendants' article, Mr. Chan Chung Kwan, the Chief News Editor, provided support for such an opinion. He said that in 1995 there had been a series of cases involving soft drinks containing sedatives which had been put in convenience shops. It was suspected by the police that others had learned the practice and repeated the action.

40. In other words, there was a fear of a copycat reaction to the Plaintiff's article.

41. I have no doubt the opinion was honestly held. But as Lord Denning M.R. said in London Artists at p.391:-

"In order to be fair, the commentator must get his basic facts right. The basic facts are those which go to the pith and substance of the matter: see Cunningham-Howie v. Dimbleby [1951] 1 K.B. 360, 364. They are the facts on which the comments are based or from which the inferences are drawn - as distinct from the comments or inferences themselves. The commentator need not set out in his original article all the basic facts: see Kemsley v. Foot [1952] A.C. 345; but he must get them right and be ready to prove them to be true."

42. As I have already found, the Defendants distorted the Plaintiff's article. The plea of fair comment must therefore fail.

Sentence (3)

43. In spite of Mr. Tang's submission to the contrary, I have no difficulty in finding that this sentence is comment.

44. In view of what I have said in relation to (2), the plea of fair comment must also fail.

45. Accordingly, there will be judgment for the Plaintiff for damages to be assessed.

46. I make an order nisi that the Plaintiff have its costs. Those costs to be taxed if not agreed.

Representation:

Mr. Robert Tang, S.C. and Mr. Anderson Chow instructed by Messrs. Hau, Lau, Li & Yeung for Plaintiff

Mr. John Griffiths, S.C. and Mr. Jason Pow instructed by Messrs. Lovell, White, Durrant for Defendants.