Oriental Press Group Limited and Another v. Next Magazine Publishing Ltd. and Other

HCA003818/1995

1995, No.A3818

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Hon. Yam, J. in Chambers

Dates of hearing: 15, 16 and 18 August 1995

Date of written decision: 30 August 1995

Date of delivery of judgment: 17 November 1995

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J U D G M E N T

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1. This is a libel action. The Plaintiffs are complaining about six articles : A-F. Articles A, B, C and D were published and printed by the 1st Defendant ("the Next Magazine"), the 2nd Defendant being its editor. Articles E and F were published by the 4th Defendant with the 5th Defendant as its editor and printed by the 3rd Defendant. These articles were published between 30 September 1994 and 16 February 1995.

2. The Plaintiffs applied for interlocutory injunction to restrain the respective defendants from publishing any articles containing the words as set out in these articles or any similar words defamatory of the 1st and 2nd Plaintiffs.

Legal principles

3. In the course of the arguments counsel for both sides accepted the following legal principles applicable to this case, namely :-

(1) The court has jurisdiction to grant an interlocutory injunction to restrain the publication of a libel.

(2) However, this jurisdiction is to be exercised with great caution. An interlocutory injunction should not be granted except in the clearest cases.

(3) In all cases where the court shall think it just and convenient, the remedy of interlocutory injunction exists.

(4) The court would refuse an interlocutory injunction when the Defendant swears that he will be able to justify the words (unless the court is satisfied that he will not be able to do so).

(5) Each article herein gave rise to a separate course of action of defamation. The defences raised in relation to each article are also different. It is therefore necessary to consider each article separately in order to decide :-

(a) Whether it is defamatory;

(b) Whether the Defendants have any defence to the Plaintiffs' claim;

(c) Whether interlocutory injunctions should be granted in the exercise of the court's discretion.

4. For my part I would add that each and every subject matter in the same article would also have to be considered separately, apart from considering the article as a whole.

Article A

5. Article A is in the 1st Schedule to the Statement of Claim at A14. It was published on 30 September 1994 titled "Hong Kong would be better if the Jardine/Hong Kong Land Group would 'scram'". Part of the this article said :-

"Another unexpected beneficiary is Oriental Ma. Many people said that it would be too many to have three media companies as constituent stocks out of the 33 constituent stocks in the Hang Seng Index. But Ma Tsai has a good relationship with the Governor. He gave the governor face by raising money to set up an English language newspaper, not caring about losing money. The Governor is bound to give him face in return to let him in. After Oriental Press became part of the constituent stocks, its share price immediately shot up by 50-60 cents, with its market value increased by HK$700-800 million without effort. The little losses on Eastern Express are negligible."

6. The Plaintiffs contended that the "Oriental Ma" and "Ma Chai" mentioned in this article referred to the 2nd Plaintiff, being the person referred to in the said article as the person controlling the 1st Plaintiff. Further, it was pleaded that these words meant and were understood to mean that :-

"(a) There was a corrupt and improper motive on the part of the 1st and 2nd Plaintiffs in establishing and founding an English daily newspaper, namely Eastern Express, in that they intended to curry favour with or bribing the governor with a view to obtaining an indirect benefit for themselves.

(b) The fact that the 1st Plaintiff's listed share became one of the 33 listed shares for the purpose of calculating the Hang Seng Index was due to the governor repaying/returning the 1st and 2nd Plaintiffs' favour by exercising the former's influence in the stock market.

(c) As a result of the facts and matters referred to in sub-paragraphs (a) and (b) above, the 1st and 2nd Plaintiffs had obtained a monetary benefit, either directly or indirectly, of $700 million - 800 million."

7. The Defendants denied the translation. However, the Defendants did not plead their own version of translation and there is no or no proper challenge to the certified translation. They further denied the defamatory meaning but they did not plead the meaning they alleged. The 2nd Plaintiff has sworn that the libel is untrue. The Defendants did not plead justification or fair comment in their defence. The only defence raised by the Defendants is that the article, when read as a whole, is not defamatory.

8. It has been decided that implication of involvement in a dishonourable conduct even though short of corruption is still defamatory (see Gatley on Libel & Slander 8th Ed. at para.58 and Jones v. Skelton [1963] 1 WLR 1362.)

9. It is also defamatory of the proprietors to charge a newspaper with selling its influence to any political party or group and thereby binding itself to deceive the public and its readers by publishing what may be contrary to the honest opinion and conviction of its management or to charge that a newspaper is manipulated by outside influences (see Gatley para.73).

10. I accept the Plaintiffs' submission that no reasonable jury would fail to the find this article libellous.

11. On the other hand, the Defendants have raised other general submissions in answer to this application for interlocutory judgment concerning :-

(1) The general characters of the Plaintiffs;

(2) The substantial and unexplained delay in the issue of the writ the summons;

(3) The meanings of the alleged libel;

(4) No evidence of any expected repetition;

(5) No irreparable damage and

(6) Damages is an adequate remedy and the Defendants are in the position to pay.

12. I shall deal with each one of them after I have considered each and every article separately herein below.

Article B (Part II)

13. Article B was published in the Next Magazine on 27 January 1995 under the headline "Oriental declared a full-scale war on TVB". I shall deal with the 2nd part ("Part II") of this article first as the theme therein is quite similar to Article A. I shall deal with Part I later in conjunction with Article C for the same reason. Part II of this Article B as set out in the 3rd (Chinese) and 4th (English) Schedule said :-

"The cause of the row arose from a section of Pearl channel's current affairs programme, the Pearl Report, which described the future of the Oriental Press Group's English language newspaper, the Eastern Express. The reporter listed a number of negative rumours regarding that paper. Guest analyst Ted Thomas also speculated that one of the purposes of Ma Ching Kwan in publishing the Eastern Express might be a condition to exchange for the Hong Kong Government's permission for his father Ma Sik Chun to return to Hong Kong from Taiwan.

He also briefly described Ma Sik Chun's background saying that he had been prosecuted for his suspected involvement in drug trafficking and thereafter he had fled to Taiwan."

14. The defamatory meanings as pleaded in para.15 of the Statement of Claim were stated as follows :-

"15. By the words set out in the 3rd Schedule, the 1st, 2nd and 3rd Defendants meant and were understood to mean that :-

(a) The 2nd Plaintiff had a corrupt and improper motive to found and publish Eastern Express, namely to seek for terms with the Hong Kong Government upon which his father might be allowed to return to Hong Kong from Taiwan."

I shall deal with particulars (b) to (d) later as they concern with Part I only.

15. The Defendants denied the translation but again did not provide their own version of their translation in their defence. Miss Eu Q.C. for the Plaintiffs submitted that Article B contains two separate and distinct libels, namely :-

(a) It repeats substantially the libel broadcasted by TVB in the "Pearl Report";

(b) It makes various assertions of fact that the 2nd Plaintiff had declared a war on TVB and caused the 1st Plaintiff to victimize innocent people. (I shall deal with (b) later).

16. In respect of the repetition of the Pearl Report the Defendants denied the defamatory meaning. However, they again did not plead any meaning they alleged.

17. Every repetition of a libel is a new libel in itself even the originator of the libel TVB has retracted and apologized for the libel. I accept Miss Eu's submission that it is defamatory to suggest that a newspaper is founded for an ulterior and improper motive or that the newspaper is prejudiced. Such suggestion is tantamount to a defamatory imputation on the person in control of the newspaper.

18. It is also libellous to publish a statement that the 2nd Plaintiff's motive in founding the Eastern Express was to use it as a leverage to exchange for the return of his father, a fugitive from justice hiding in Taiwan. Justification or fair comment are not relied upon as a defence to this 2nd part of Article B.

19. Miss Eu further submitted that a similar situation is in the case of London Artist Ltd. v. Littler [1968] 1 WLR 607. In the judgment of Cantley, J., he said at page 623-624 :-

" I think I should also give my views on whether, assuming the matter referred to to be one of public interest, the defendant can, in relation to these plaintiffs, assert as a defence that what he said was fair comment upon that matter.

Putting the case in the way which seems to me to be most favourable to the defendant, he is saying, in relation to the artists, that in his opinion they seem to have combined with the plaintiffs, either as principals, puppets or pawns, in a disreputable plot to end the run of the play for the advantage of some other production. It is now conceded there was no such plot, although all the indications up to the present are that the defendant honestly believed that there was one.

The situation may be stated in summary form as follows :

A expresses a defamatory opinion of B as an essential and major part of his comment on the conduct of C, and when sued by B says he has a complete defence because what he said was fair comment on the conduct of C.

The industry and experience of counsel engaged in this case, and my own endeavours, have failed to disclose a single reported case where a plea of fair comment of this type has ever been asserted. I cannot say I am surprised, because if this is the law, it seems to me to be grossly unfair. A man may comment honestly on the conduct of others, with resulting hardship to them, but in all cases the victims have put themselves in a position where they expressly or impliedly invited public attention, or else comment upon them was one of the accepted risks of their activities. It is at least their own acts or omissions or conduct which have excited, it not provoked, the comment.

In commenting upon the public performance of an artist, it is not permissible to make defamatory statements or comments upon his private life. In my view, it is an a fortiori case that one cannot make defamatory statements or comments about someone else altogether, unless one is prepared to justify them.

Mr. Duncan, to whose submission I listened with the respect which is due to his great learning and experience, has said that I should first ascertain whether there was a matter of public interest, and then go on to consider whether this was comment upon it, and that it does not matter that the comment defames persons who were not actually involved in the conduct commented upon provided the conduct commented upon was a matter of public interest.

I am conscious that I may, in Mr. Duncan's better judgment, be expounding a heresy, but I cannot believe it right that this plea can be raised against these plaintiffs. It seems to me that the reality of the situation is that the conduct which is being commented upon is the conduct of the plaintiffs, and that it is being commented upon without any basis of fact to support it."

In the end, I find that Part II of Article B is clearly defamatory of the 1st and 2nd Plaintiffs.

Article B Part I and Article C

20. Part I of Article B said :-

"This Wednesday, the television section of Oriental Daily News had a strange appearance, with the lead article and three other news items all jointly attacking TVB and supporting ATV, with headlines such as 'TVB Defeated in a Landslide', 'Focus on Focus reports inaccurately and untruthfully', etc.

Even more baffling was that in the TV programme list, the logos for the Pearl and Jade channels were withdrawn and the typeface used was smaller than that used for ATV programmes.

This is just the opening battle of a big war. Oriental Press Group's boss Ma Ching Kwan has declared a full scale war on TVB."

21. The Plaintiffs pleaded that the aforesaid words meant and were understood to mean that :-

"15.

(a) .....

(b) The 2nd Plaintiff had abused his position as the chairman of the board of directors controlling and managing the 1st Plaintiff by improperly using :-

(i) the publications controlled by or through him to air his personal grievance and to attack his personal rivals; and

(ii) his director's administrative power to retaliate on TVB by stopping further publication in Oriental Daily News articles written by Madam Wu Shuet Kei, the wife of Mr. Leung Ka Wing, the Deputy Supervisor of the News and Public Affairs Department of TVB, thereby interfering with the editorial and press freedom of Oriental Daily News.

(c) The 1st Plaintiff had improperly allowed the use of the publications controlled and managed by them as means through which the 2nd Plaintiff may :-

(i) air his personal grievance and to attack his personal rivals; and

(ii) use his director's administrative power to retaliate on TVB by stopping further publication in Oriental Daily News articles written by the said Madam Wu Shuet Kei, thereby interfering with the editorial and press freedom of Oriental Daily News.

(d) In retaliating or airing his personal grievance and feud against TVB, the 2nd Plaintiff was determined to victimise people who were innocent of the publication of the said 'Pearl Report'."

22. Further on 10 February 1995, the Next Magazine printed Article C under the headline "Oriental shows no mercy, TVB endures and tolerates". The Plaintiffs pleaded in paragraph 18 as follows :-

"18. By the words set out in the 5th Schedule, the 1st, 2nd and 3rd Defendants meant and were understood to mean that :-

(a) The 2nd Plaintiff :-

(i) was the 'Czar of the Mass Media' who had a habit of interfering with the editorial and press freedom; and

(ii) had abused his position as the chairman of the board of directors controlling and managing the 1st Plaintiff by improperly using Oriental Daily News controlled and managed by the 1st Plaintiff to air his personal grievance and to attack his personal rivals.

(b) The 1st Plaintiff had improperly allowed the use of Oriental Daily News controlled and managed by them as means through which the 2nd Plaintiff may air his personal grievance and to attack his personal rivals.

(c) The 1st and 2nd Plaintiffs, as persons in control and management of a publication business, did not have the necessary conscience and principle as media publishers and they have been guilty of misconduct unworthy of being publishers of the public media."

23. The Defendants deny the translation of Article C but again have not provided another translation thereof. The Defendants further deny that Article C bore or were understood to bear any of the meanings defamatory of the Plaintiffs as alleged by them.

24. In respect of the other libel in Part I Article B the Defendants further or alternatively pleaded that the meanings as alleged in para.15(b) to (d) of the Statement of Claim are true in substance and in fact insofar as they consisted of Statements of Fact and a fair comment on matter of public interest insofar as they consisted of expression of opinion. Particulars (a) to (g) were given.

25. It has been said that the court would refuse an interlocutory injunction when the Defendant swears that he will be able to justify the words. It is however necessary to scrutinize the defence more closely to see what the Defendants are saying that they will justify or what comments they made are fair comment on matters of public interest. Paragraph 14A pleaded seven sub-paragraphs of particulars as follows :-

"(a) The Pearl Report contained an allegation to the effect pleaded in Paragraph 15(a) of the Statement of Claim and was offensive, distressing and objectionable from the Plaintiffs' point of view.

(b) The 2nd Plaintiff's father and the brother of the 2nd Plaintiff's father, Ma Sik Yu, were allegedly involved in trafficking in dangerous drugs.

(c) The 2nd Plaintiff's father was prosecuted for offences involving trafficking in dangerous drugs and jumped bail and absconded.

(d) The 2nd Plaintiff's father has at all material times been in Taiwan and Ma Sik Yu has since passed away.

(e) The 1st Plaintiff has at all material times had control of, and the 2nd Plaintiff is and has at all material times been the person in control of, the publications published by the Group, including the newspapers and periodicals pleaded in paragraph 1 of the Statement of Claim.

(f) No Writ has been issued and no Solicitors' letter has been sent by or on behalf of the Plaintiffs or the Oriental Express to TVB in respect of the Pearl Report. Instead, after the broadcast of the Pearl Report. Instead, after the broadcast of the Pearl Report, the Oriental Daily News, the Oriental Sunday and Eastweek published articles (including those set out on pages 36 and 37 of Issue No.255 of the Magazine [Article B] and pages 54 and 55 of Issue No.257 of the Magazine [Article C]) derogatory of and/or unfavourable to TVB, its programmes and ratings, and/or favourable to ATV (the competitor of TVB), its programmes and ratings; the Oriental Daily News withdrew from its publication the column written by Wu Shuet Kei, the wife of the Deputy News Supervisor of TVB; the Oriental Daily News also withdrew from its publication the column written by Wu Shuet Lai, the sister-in-law of the Deputy News Supervisor of TVB; the Entertainment Section of the Oriental Daily reversed the order of appearance of the programme schedules of TVB and ATV by putting the schedules of TVB below those of ATV, and dropped TVB's logo, and published TVB's schedules in smaller prints.

(g) The Defendants repeat Paragraph 7 herein."

26. Paragraph 7 of the defence pleaded the apology of TVB in respect of the Pearl Report.

27. It is not quite clear what the Defendants are saying are facts and what are comments as contained in Article B and what facts they will justify. It is in the end as submitted by Miss Eu for the Plaintiffs that it is a rolled up plea which fails to comply with O.82 r.3(2). In the end (apart from those parts involving Ma Sik Chun and Ma Sik Yu); the Defendants have only raised the following facts to justify the truth of the article, namely :-

(a) The 2nd Plaintiff was the person in control of the 1st Plaintiff and the publications set out in para.1 of the Statement of Claim.

(b) The column written by Wu Shuet Kei was withdrawn from the Oriental Daily News.

(c) The column written by Wu Shuet Lai was withdrawn from the Oriental Daily News.

(d) The Entertainment Section of the Oriental Daily News reversed the appearance of the programme schedule of TVB and ATV and dropped TVB's logo. TVB's schedule appeared in smaller prints.

(e) No solicitors' letter nor Writ of Summons was issued by the 1st and 2nd Plaintiffs.

(f) The publications controlled by the 1st Plaintiff reported matters derogatory of or unfavourable to TVB.

28. In other words the Defendants make the following material assertions of fact in Article B but did not plead in their defence that they will justify the same, namely :-

(a) On the same night when the "Pearl Report" was published, the 2nd Plaintiff summonsed the heads of department of the "Oriental Daily News", "Eastern Express", "Oriental Sunday" and "Eastweek" and they saw the tape. Thereafter, the 2nd Plaintiff declared a war on TVB. This was according to "informed sources".

(b) On the same night, the 2nd Plaintiff notified Wu Shuet Kei, the wife of Leung Ka Wing, the director of the News Department of TVB, that her column had to be "closed down".

(c) On the same day, the column of Wu Shuet Lai, was removed without prior notice.

(d) The following day, someone in the entertainment section of Oriental Daily News set out the message of declaration of war.

(e) There has been antagonism between TVB and the Oriental Press Group for a long time.

29. The sting of the libel is the "declaration of war" made by the 2nd Plaintiff. He abused his position and influence over the 1st Plaintiff and used its publications for his personal vendetta. The 1st Plaintiff allowed its publication to be so used. The Plaintiffs have deposed to the following :-

(a) There was no meeting of the head of the department of the 1st Plaintiff as alleged.

(b) The 2nd Plaintiff had never made a declaration of war on TVB as alleged.

(c) The decision to withdraw the column of Wu Shuet Lai did not involve the 2nd Plaintiff at all and was made with good cause.

(d) The decision to withdraw the column of Wu Shuet Kei was made in mid January 1995 due to change in the format and layout of the Feature Section and she was notified before any knowledge of the Pearl Report.

(e) The 1st Plaintiff did not have any grudge with the TVB.

(f) The publications relating to TVB were made in the ordinary course of the 1st Plaintiff's business.

30. On the other hand, there is no evidence at all from the Defendants swearing to the truth of the assertion of facts as published in Article B and set out hereinbefore. The Defendants do not even swear that they will justify anything. The only reference is to fair comment.

31. In respect of Article C, the Defendants further pleaded justification and fair comment and particulars given thereunder were by way of repetition of paragraph 14A of the amended defence.

32. The Plaintiffs submitted that an imputation that the person in control has abused his position by intermeddling with editorial freedom, by using the publications under his control to air his personal grievance and attach his rivals is an imputation that the Plaintiffs have been guilty of misconduct rendering them unfit to control and manage a publication industry (see Gatley at para.60).

33. The sting of the alleged libel as submitted by the Plaintiffs is that :-

"To avenge a personal vendetta, the Plaintiffs declared a full-scale media war on TVB, namely that they used their publications to attack TVB viciously victimizing innocent third parties."

34. The Defendants stated in the amended defence that the Defendants intended to justify the sting of the alleged libel.

35. In respect of both Article B (Part I) and Article C, I accept the Defendants' submission that all that the Defendants needed to do is to state that they intend to justify those facts. There is no need to set out the evidence in support. The following cases can support this proposition.

(a) In Bonnard v. Perryman [1891] 2 Ch.269, it was decided that :

" The Court has jurisdiction to restrain by injunction, and even by an interlocutory injunction, the publication of a libel. But the exercise of the jurisdiction is discretionary, and an interlocutory injunction ought not to be granted except in the clearest cases - in cases in which, if a jury did not find the matter complained of to be libellous, the Court would set aside the verdict as unreasonable.

An interlocutory injunction ought not to be granted when the Defendant swears that he will be able to justify the libel, and the Court is not satisfied that he may not be able to do so."

(See headnote at p.269, and p.284 per Lord Coleridge, C.J.). (This case is, of course, also an authority in support of granting an injunction in respect of Article A and Part II of Article B).

(b) In Quartz Hill Consolidated Gold Mining Company v. Beall [1882] 20 Ch.D.501, it was decided that :

"..... the Court has jurisdiction to interfere on interlocutory application to restrain the publication of a libel but, that this jurisdiction is to be exercised with great caution, and will not in general be exercised unless the applicant satisfies the Court that the statements in the document complained of are untrue."

(c) In Khashoggi v. IPC Magazines Limited [1986] 1 WLR 1412, CA, it was decided that :

"..... the principle that an injunction would not be granted to restrain publication of an alleged defamatory statement where the defendant intended to advance a plea of justification extended to the situation where the defendant intended to justify the common sting of several allegations, including the allegation complained of, even though he might not be able to prove the particular facts contained in that allegation; and that, accordingly, since the defendants intended to justify what was said to be the sting of the article, namely promiscuity, the injunction should be discharged (post, pp.1417D-1418A, E)."

36. Thus even though the Defendants might not be able to justify the particular fact of a special meeting after the release of the "pearl report", the Defendants intended to justify the common sting of several allegations including the allegation of a declaration of war. I would however restrain myself from saying anything more in order not to prejudice the trial of this action.

37. Those particulars given under paragraph 14A especially sub-paragraph (f) are factual evidence the Defendants relied on in order to justify the sting of the libel and/or to plead the defence of fair comment. The ambit of evidence the Defendants can adduce as stated in those particulars and the inference to be drawn therefrom are matters for the trial of the Action. I find it inappropriate to comment further thereon at this interlocutory stage.

38. Further, whether the apology came as a result of badgering of TVB in Oriental Publications, with or without declaration of war, or amicable resolution right from the start, is an issue for determination at the trial. It is not an issue to be resolved in the Plaintiffs' favour by a trial on affidavits at an interlocutory hearing. For present purposes the issue is not that justification would succeed but that justification might succeed - see the case of Khashoggi (supra) at p.1417H.

39. Incidentally, I must point out here that the Defendants (for reason best known to themselves and perhaps their own lawyers) have not pleaded justification and fair comment in respect of Article E. I do not know whether this was just a slip on their part. For my part, I must consider that at this stage the Defendants are bound by their own pleadings.

40. However, in respect of this article, I consider that it is open to the Defendants to argue whether the article is defamatory of the Plaintiffs and this is not the clearest case as explained above under "Legal Principles". Thus I would exercise my discretion to refuse the granting of an interlocutory injunction. I consider that it is part and parcel of the same allegation of the sting of the libel - i.e. the alleged "declaration of war".

Articles D, E and F

41. I shall deal with these three articles together.

(1) Article D

42. On 17 February 1995, the Next Magazine published an article under the headline "TVB waiving the white flag". The Plaintiffs set out the defamatory meanings as follows :-

"21. By the words set out in the 7th Schedule, the 1st, 2nd and 3rd Defendants meant and were understood to mean that :-

(a) The publication of the amend and apology referred to in Paragraph 7 above was made by TVB's News and Public Affairs Department which was not binding upon TVB.

(b) The contents of the amend and apology referred to in Paragraph 7 above did not reflect the attitude and view of TVB. The said amend and apology was published solely for the purpose of avoiding the undesirable consequence of :-

(i) The 2nd Plaintiff continuing to abuse his position as the chairman of the board of directors controlling and managing the 1st Plaintiff by improperly using :-

(1) the publications controlled by him to air his personal grievance and to attack TVB; and

(2) his director's administrative power to retaliate on TVB by stopping further publication in Oriental Daily News articles written by the said Madam Wu Shuet Kei, thereby victimising innocent people.

(ii) the 1st Plaintiff continuing to improperly allow the use of the publications controlled and managed by them as means through which the 2nd Plaintiff may :-

(1) air his personal grievance and to attack TVB; and

(2) use his director's administrative power to retaliate on TVB by stopping further publication in Oriental Daily News articles written by the said Madam Wu Shuet Kei, thereby victimising innocent people.

(c) The 1st and 2nd Plaintiffs have, by their improper acts and misconduct, forced, obliged and harassed the News and Public Affairs Department of TVB into publishing an amend and apology which was published involuntarily and the contents of the said amend and apology were untrue."

43. The Defendants deny the defamatory meaning as set out in the Plaintiffs' allegations. There is a further plea of justification and fair comment by repeating para.14A as set out hereinbefore.

(2) Article E

44. On 16 February 1995, the Easyfinder (a magazine of the 4th Defendant's worth, the 5th Defendant being its editor and the 3rd Defendant its printer) published Article E with the following title on its front cover : "Oriental Daily News cooked up a story, Lee Mei Fung Dare Not Resist" and an article under the headline "Oriental Bombards TVB. Lee Mei Fung made a scapegoat". The Plaintiffs set out the defamatory meanings of this article as follows :-

"24. By the words set out in the 9th Schedule, the 3rd, 4th and 5th Defendants meant and were understood to mean that :-

(a) The 1st and/or 2nd Plaintiffs improperly, and with an ulterior motive, cooked up a story relating to, or distorted the contents of, an interview their news reporter had with Lee Mei Fung and thereafter published in the 'Entertainment Circle' of Oriental Daily News a distorted story of the said interview solely for the purpose of defaming or harassing TVB.

(b) The purpose of the 1st and/or 2nd Plaintiffs to cook up, or distorted, such a story was to retaliate for TVB's publication of the said 'Pearl Report', matters unfavourable to the 2nd Plaintiff and his family.

(c) Lee Mei Fung, a person innocent and disinterested of the dispute between TVB and the 1st and 2nd Plaintiffs, was improperly victimised and made a scapegoat."

45. In respect of Article E, the Defendants deny that Article E bore or were understood to bear any of the meaning as set out in the Plaintiffs' allegations. There is no plea of fair comment or justification.

(3) Article F

46. In the same issue of the Easyfinder of 16 February 1995, the 3rd, 4th and 5th Defendants published another article under the headline "The Scurrilous Attach on TVB". The Plaintiffs alleged that they have the following defamatory meanings :-

"28. By the words set out in the 11th Schedule, the 3rd, 4th and 5th Defendants meant and were understood to mean that :-

(a) The 1st and 2nd Plaintiffs, with a view to retaliating their grievance and feud against TVB, had, in Oriental Daily News :-

(i) cooked up a story, or distorted the comment, about TVB;

(ii) made unfavourable remarks about TVB; and

(iii) incited and instigated members of the public to lodge complaint against TVB.

(b) The 1st Plaintiff had improperly allowed the use of Oriental Daily News controlled and managed by them as means through which the 2nd Plaintiff may air his personal grievance and to attack his personal rivals.

(c) The 2nd Plaintiff had abused his position as the chairman of the board of directors controlling and managing the 1st Plaintiff by improperly using Oriental Daily News to air his personal grievance and to attack his personal rivals.

(d) the 1st and 2nd Plaintiffs, in their capacities as persons in the management of Oriental Daily News, an influential newspaper, had acted outside the accepted and basic principles of newspaper publication.

(e) The 1st and 2nd Plaintiffs have been guilty of misconduct rendering them unfit and unsuitable in the industry of media and publications."

47. In respect of Article F, the Defendants pleaded that they were not defamatory. Further, they said that the contents of this article were not understood to be and were not capable of being understood to be taken seriously or literally. They further plead justification and fair comment by repeating paragraph 14A of the amended defence.

48. In my judgment I consider that Articles D, E and F are on the same footing as Part I of Article B and Article C. For the same reason the Plaintiffs are not entitled to an interlocutory injunction in respect of these three articles (D, E and F).

Further Defences

49. As I have said before the Defendants have further raised a number of defences to this application for injunction. I have already considered "the meaning of the libel". I do not consider in the case before me I should consider "the general character of the Plaintiffs". In any event, in this very case it is an issue to be tried and cannot be resolved on affidavit. I shall set out other defences hereinbelow.

(1) Delay

50. The Articles A-F are published between 30 September 1994 and 16 February 1995. The writ was issued on 22 April 1995. The summons for injunction was issued on 24 April 1995. The first return date fixed by the court was 26 May 1995. The Defendants submitted that there is no explanation for the long delay of the Plaintiffs. However, it has been said in Spry on Principles of Equitable Remedies(4th Edition) at pp.479-480 that :-

"..... The matters by reference to which it is decided whether the particular extent of the delay in question is unreasonable have already been discussed in relation to perpetual injunctions, and it has been seen that mere unreasonable delay is not in itself sufficient to lead to a refusal of relief : there must be a further consideration, such as a prejudicing of the position of the defendant by reason of the delay in question, so that it becomes 'practically unjust' to grant the remedy that is sought."

51. In this very case, I do not find any undue delay on the part of the Plaintiffs which would prejudice the position of the Defendants, so that it becomes "practically unjust" to grant the remedy that is sought.

(2) No expected repetition

52. The Defendants submitted that there is no evidence of any expected repetition of the words complained of in the Statement of Claim. However, the Defendants refuse to give any undertaking as to any repetition of the alleged libel. It has been said in Spry at pp.468-469 :-

" A further matter that must be taken into account in granting or refusing an interlocutory injunction is the readiness of the defendant to give an undertaking not to perform the acts that would, if performed, give rise to irreparable injury. Indeed, the right to an interlocutory injunction may here be affected in two ways. First, the preparedness of the defendant to give an undertaking is a fact to which weight must be accorded when it is being determined whether there is in truth a risk of irreparable injury. Whether there is a sufficient imminence of substantial injury is a matter to be determined in all the material circumstances, and clearly assurances by the defendant that he will not do what the plaintiff alleges that he intends to do may be of considerable importance. Conversely a refusal by the defendant to give an undertaking may, as a matter of evidence, tend to establish that the apprehended acts will take place. Secondly, sometimes the preparedness of the defendant to give an undertaking may, in the particular circumstances, affect the balance of convenience in regard to the grant or refusal of an injunction, especially if the likelihood of substantial detriment to the plaintiff is not great."

In this case, repetition may occur in terms of similar words to Articles A and Part II of B.

(3) No irreparable damage

53. The Defendants submitted that no irreparable damage has been shown. However, the Plaintiffs said that the publication of the article defamatory of the Plaintiffs has caused disruption in the business of the 1st Plaintiff and its subsidiaries and embarrassment to the 2nd Plaintiff. These damages cannot be adequately compensated by a monetary award and are difficult to calculate. In my view, damages is not an adequate remedy even though the Defendants are in a position to pay those damages.

Conclusion

54. For reasons given above, I would impose an interlocutory injunction as sought in respect of the first and second words in Articles A and Part II of Article B only. I shall hear counsel on the question of costs.

Representation:

Miss Andrey Eu, Q.C., leading Mr K.M. Chong and Mr A. Cheung, inst'd by M/s Wilkinson & Grist, for Plaintiffs

Mr Kenneth Kwok, Q.C., leading Mr Hiu Lee Wong, inst'd by M/s T.S. Tong & Co. for Defendants