Kwing Shou Wendahl Ting v. Robin Parke and Others
Read the full judgment text of HCA 2229/1985 on BabelCite. This High Court CFI judgment.
1. There was published in the South China Morning Post on March 9, 1985 an article headed "Businessman Ting in the Wrong Market?". It was an article written as part of a series of weekly columns by Mr. Parke, the 1st defendant, called "Simply Soccer". The article appears at page 47 of the bundle of documents before me and I shall refer in greater detail to certain aspects of this.
Cited by 2 cases
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HCA002229/1985 ------------------------ HEAD NOTE ------------------------
IN THE HIGH COURT OF JUSTICE HONG KONG ACTION N0.2229 OF 1985 _____________ BETWEEN
_____________________ Coram: The Hon. Sears, J. in Court Dates of Hearing: 1st-3rd, 6th-10th, 14th-16th, October, 1986 Date of Delivery of Judgment: 11th November, 1986 __________ JUDGMENT __________ 1. There was published in the South China Morning Post on March 9, 1985 an article headed "Businessman Ting in the Wrong Market?". It was an article written as part of a series of weekly columns by Mr. Parke, the 1st defendant, called "Simply Soccer". The article appears at page 47 of the bundle of documents before me and I shall refer in greater detail to certain aspects of this. 2. On 11th April, 1985 the plaintiff issued a writ against Mr. Parke, who was the writer of the article, Mr. Hutcheon, the 2nd defendant, who was the then editor and the South China Morning Post Ltd., 3rd defendants, who were the owners, publishers and printers of that news-paper. As between the defendants, there are no different issues raised and in the course of this judgment, it is not necessary to distinguish between any of the defendants. 3. On 23rd May, 1985 the defendants in their defence admitted the publication but denied that such publication was false or malicious and they also raised two other defences. First, they asserted that the words complained of in the statement of claim were a fair comment on a matter of public interest and secondly that the words were true. The words complained of by the plaintiff in his statement of claim were the opening two paragraphs which read as follows:
4. There have been a number of other pleadings in this action to which I shall refer shortly. At the beginning of this action the defendants conceded not only the publication of the article but that the words complained of were spoken of Mr. Ting and were defamatory. Although the statement of claim contains the opening four paragraphs, it is only the first two paragraphs that figure prominently in this case. As I have said the defendants conceded that the words were defamatory and therefore the issues before me are as follows: 5. First, are the words which defame the plaintiff substantially true? If they are, that is an end of the matter. 6. Secondly, if they are not, are they a fair comment on a matter of public interest? That is also a complete defence to the allegation of libel unless the plaintiff proves that the words were actuated by express malice. 7. It can be seen, therefore, that the initial burden of proof is upon the defendants and it would only shift to the plaintiff when and if the issue of fair comment is established. The parties accepted that it would. be a common sense approach for the plaintiff to begin by giving his evidence and then being cross-examined by Mr. Mitchell, on behalf of the defendants, who would put the variety of allegations which sought to establish either the defence of justification or that of fair comment. 8. During the course of the cross-examination of the plaintiff other matters were raised which were not expressly dealt with in the pleadings. Although Mr. Yu raised an objection, it appeared to me that to do justice between the parties it was necessary for an amendment to be made by adding to the particulars to the defence of justification. I therefore gave leave for such amendment to be made and I permitted the plaintiff to be recalled to deal with any matters with which it was considered he should so deal. I was satisfied that the defendants had a right to include the other matters as part of their case and at the same time I am satisfied that the plaintiff has had every opportunity of explaining or dealing with those additional matters. 9. Before I turn to the issues in this case it is necessary to set out the history of the matter because this does assist in the solution of those issues. HISTORY 10. In 1977 the lst defendant Mr. Parke together with. a Mr. Pilkington and Mr. MacFeely, who figures prominently in this case, founded a soccer club which was called "Harps". They started as an amateur team, but became more successful from 1977. In the season 1982/83 they were promoted from the third division to the second division and then from the second to the first in the following season. This was obviously a very good achievement. 11. The season 1984-1985 was their first season in the first division and this case is concerned with events which occurred in that season. Harps had been sponsored both in the third and second division, but when they reached the first division the obtaining of sponsorship was more difficult. Furthermore there were a number of new players and they had to be paid wages commensurate with them being first division players. 12. Mr. Parke recognised that the financial problems were becoming severe and he naturally encouraged any donations or sponsor-ship to enable the Club to continue. Mr. Parke had been told of the interest of the plaintiff in becoming involved in soccer and towards the end of October of 1984 they met. At that time there were bills pressing and the responsibility for paying the players' wages was becoming more acute. At first it was mooted that the plaintiff would pay $50,000 and become a Vice-Chairman of the Club. However, at about beginning of November 1984 there was a meeting in the Tai Pak Restaurant between the plaintiff, the 1st defendant, Mr. MacFeely and Lawrence Yu and some others and the plaintiff put forward the idea that he would run the Club, but that it was necessary for a limited company to be formed to take over the running of the Club. He wanted it run on a proper business footing. Everyone appears to have been in agreement with this proposition because it enabled the Club to continue running. 13. Mr. Parke was relieved that the plaintiff became involved and was going to take over the Club because he could then leave and the Club would survive. He described it at that time as "a nightmare". Prior to Mr. Ting's involvement with the Club Mr. Parke had acted as secretary running the general administration of the Club and Mr. MacFeely had acted as the coach. I should add at this stage that the role of coach was really equivalent to a football manager, as is known in English soccer, and Mr. MacFeely's role was to train the team and to select it. 14. On 4th December, 1984 a company was formed. This was a shelf company which had been acquired by the plaintiff and various documents were signed. It is not necessary for me to go through those matters in detail. Certain accounts were handed over and Mr. Ting required all the players to re-enter into fresh contracts. Mr. Parke resigned as the secretary of the Club, Mr. MacFeely still at that time being the coach. Both of them were allocated shares in the new company and were directors. 15. There was some dispute by the players as to whether or not it was necessary for fresh contracts to be entered into and Mr. Anderson, who also figures prominently in this case, went to the Football Association to discover whether or not his old contract still applied; he was told it did. 16. The plaintiff from 4th December, 1984 took over the Club. Mr. Parke told me that he thought that the plaintiff was going to be the manager rather akin to the administrative role which he himself had had and that Mr. MacFeely would be continuing as the coach selecting and training the team and making the various tactical decisions for the games. 17. Although Harps were newly promoted to the first division, they won their first two games, but then had a disastrous run of losing their next six. When the plaintiff took over therefore, he recognised that the Club required motivation; both the level of morale and the performance of the Club had plummeted. It may well be that one of the factors that had been influencing the poor games was the financial problems that beset the Club. The players did not have that feeling of security which comes from a well-organised and financially stable club. 18. After the plaintiff took, over the Club played its first game on 12th December, 1984 which it drew. It then won the next game on 1st January 3-0, drew the next on 13th January, won the next on 19th January 1-0 and drew on 26th February with Happy Valley 1-1. One of the teams it played, namely on 13th January, was Seiko, a very powerful team. 19. The position therefore at the time when the article was published by the South China Morning Post was that since the plaintiff had taken over no further games had been lost. The Club had won two and drawn three. 20. On 14th March, 1985 in a Viceroy Cup Game Harps lost 4-0, but its record continued well and the Club reached the semi-finals of the F. A. Cup and beat Seiko on 9th June 1-0. In the final of the F. A. Cup they lost to the powerful South China Team only on a penalty shoot out; the result at full time being 2-2. 21. It can be seen, therefore, that from a performance point of view the plaintiff had a dramatic impact upon Harps. He instilled financial stability in the Club, boosted the players' morale and it may also be that playing together on more occasions the team was able to perform in a better manner. 22. There is no doubt in my judgment, however, that it was the plaintiff who brought about the improvement in the Club's performance from the day he took over and he played a major part in the Club's success later on in the season and in particular their unlucky loss in the F. A. Cup final. It must also be remembered that but for the plaintiff taking over, the Club would have been disbanded. 23. I shall detail in a moment the various matters which the defendants complain about the plaintiff, but I should state straightaway that the defendants concede that there is no ground for criticis-ing the plaintiff in any aspect of his life or character other than in his tactical ability as a manager of a first division football club and his decision making process which they say is not suitable for a person in a professional capacity running such a club. WITNESSES 24. Before I turn then to the specific issues, I would say a little about the main witnesses who gave evidence before me. Fortunately, I was provided with a shorthand writer who was able to take down all the evidence which has been heard before me. That was often given at speed with long questions and even longer answers and I was able, therefore, to observe the manner in which the witnesses gave their evidence as well as, of course, recognise the relevant parts of their evidence. 25. The plaintiff is 42 years old and he has had a very successful business career - managing director of a property company, owner of a motel in the United States of America and a factory in Taiwan. He has been on any view successful in his business life. He tells me he is worth a few millions of US dollars and I have no reason for thinking that throughout his life he has led other than a respectable and successful business career. He told me that he had been keen on sports and had played in a Lincoln junior college soccer team and when 37 in 1981 he was the Sports Chairman of the American University Club and played a role in that club. This matter was sought to be decried by the defendants, but in my judgment he has demonstrated that he is a person interested in sport, albeit he may not himself have been a sports player of a high calibre, or have had practical experience of running a professional sports club. 26. He is very interested in soccer and was keen to become involved with a football club. He was an unusual witness in that he gave long, often rambling answers to questions and would not give a short, direct answer when a long one would do. He is a self-opinionated man and he took most opportunities of seeking to criticize the behaviour of the 1st defendant Mr. Parke. He is and no doubt has been for some time bitter towards Mr. Parke for writing what he considers to be a most unjust libel of him. 27. Although therefore I found him a witness who might be described as an awkward or difficult person, he is nevertheless in my judgment an honest man. I was most impressed by his keenness and his enthusiasm for the game of soccer and an enthusiasm which he tried to instill in his own players. He wanted to win football matches or sometimes, as he put it, not to lose them. He wished the Club to be successful. No doubt in all persons of success there is a streak of vanity which runs through their character, but this is not in my judgment a matter for criticism but a recognition that he is a man who is proud of his success in life. 28. Mr. Parke is the sports editor of the South China Morning Post and he has been in that position for some years. He is now aged 43 and has had some 25 years as a journalist. I do not set out the details of his journalistic history, but he is a person of obvious experience in the world of journalistic sports. He has played Hong Kong League Soccer, has been involved as I have said in the running of Harps football team, had been manager of Caroline Hill in 1972 and therefore his knowledge of soccer is extensive. He is now involved in horse-racing as a television commentator and a writer for the South China Morning Post and no doubt he now has a considerable experience in that field. 29. I have had the opportunity of examining articles, which he wrote, of his "Simply Soccer Column" and there is no doubt that he does have a style of writing which might on occasions be described as forthright; he has an obvious command of the English language and is able to set out in concise form what his views on a particular subject are. He is on any view very experienced in sports matters. He sought to give the impression that the Club which he had built up from 1977, had in some way been damaged by the plaintiff; despite the plaintiff saving the club and the good record of results. He never-theless considered that the personal characteristics and the personal quality of judgment of the plaintiff left much to be desired. I thought that on occasions his view of the plaintiff clouded his judgment on certain aspects of the case. 30. It is not necessary in this action to prefer one witness's evidence to another because there is no or very little factual dispute between the parties. In my judgment, however, when he tells me he has no personal animosity towards the plaintiff and all he is concerned with is, as he calls it, the high professional standard of soccer, he is not giving me honest evidence. 31. Mr. MacFeely is a young man of 36 who has been involved in soccer in Hong Kong for a number of years and he has professional qualifications as a coach. He was, as I have said, closely involved with Mr. Parke from 1977 and has remained a good friend. Mr. MacFeely also writes in the South China Morning Post soccer articles on lower division clubs. He was not re-engaged by the plaintiff and from that time, in my judgment, he has resented that fact. 32. At the time of the publication of the article he had sought advice from solicitors concerning a claim which he subsequently made against the company which, as I have said, had taken over the football club, against the plaintiff and the plaintiff's fellow coach and manager, Mr. Lawrence Yu. Proceedings were issued in May of 1985 claiming damages for breach of contract and the repayment of certain monies called bonus monies. That claim was subsequently dismissed in the District Court. 33. Mr. MacFeely told me when being cross-examined that he did not dislike the plaintiff and that all he was concerned about was the plaintiff's professional approach to football. Again, in my judgment, as with Mr. Parke, that view is clouded by his own personal view of the plaintiff. I do not accept that he did not dislike him. In my judgment the reality of this matter is that Mr. MacFeely did have a strong resentment against the plaintiff for what he considered to be unwarranted treatment in failing to re-engage him. 34. Since Mr. MacFeely lost his position as coach he has not joined another football team, but ran a bar in Kowloon and later became the Assistant Manager at the Bull and Bear. 35. Mr. David Anderson is a footballer of some experience. He retired at the end of last season, having been playing for many years. He has played for a number of clubs, played for the Republic of Ireland; he came to Hong Kong in 1971 and he started off as a defence/ mid-field player. He played a couple of games as centre-forward and then he became a sweeper or central-defender. Since that time he has played in that position in major games, he was a Hong Kong International 1978-1980. He captained the Hong Kong League XI and he has played against many experienced and world-known footballers in his role as sweeper. I have no doubt that in that position he was a person of great ability. 36. The incident with which Mr. Anderson is involved, occurred in the game when the plaintiff tools over the running of the Club, on 12th December 1984, and the plaintiff, who had wanted to use a similar tactic in the game before when he was not running the Club, took the opportunity for the game of 12th December to play Mr. Anderson at centre-forward rather than central-defender. This was not a success and midway through the second half Mr. Anderson was replaced by another player. It is that incident which figures in the publication some three months later. 37. Shortly after the publication on 23rd March Mr. Anderson was dropped from the team; he was not satisfactory according to the plaintiff and he did not play in the next four games and then only came on in the next three games up to the Cup Final as a substitute. He is a good friend of the plaintiff and a good friend of Colin MacFeely and no doubt over the months from March 1984 to today's date they have met and discussed the matter about Mr. Ting. I found Mr. Anderson a rather disgruntled person. He also bears some resentment towards the plaintiff. Although the incident of December, 12th featured prominently in this case, it did not appear to me that it featured prominently in December as far as Mr. Anderson was concerned. The newspaper report of the game, (p.42 of the bundle) indicated that he tried his best but the players behind him did not give him the support which he deserved. The fact that a central-defender of such ability was asked to play as a centre-forward for a short time did not appear to have hurt him in any way and it is only now when I hear the evidence in this trial that he voices his adverse opinion of the plaintiff. He did not like being dropped at the end of March of 1985 and he now tells me that he thinks that the plaintiff behaved in a manner which is not professional. As I have said before I shall deal with all these matters later in this judgment. 38. My general view of Mr. Anderson, is that he is a disappointed or disgruntled person who was, at the time when Mr. Ting took over the Club, also running his own business which was contrary to the normal rules for football players. Mr. Anderson told me he had cleared this matter with Mr. Parke and Mr. MacFeely when he signed his contract to play for that season. I consider that on occasions Mr. Anderson was exaggerating a number of matters and was unjustly attempting to belittle the plaintiff in a manner which indicates that perhaps it has been suggested to him that these matters are of greater importance than it appeared at the time. As I have said before Mr. Parke, Mr. MacFeely and Mr. Anderson are all good friends and clearly they were in close touch with each 1other from the time when Mr. Parke left the Club. The other person who figures in this case is called Hugh Smith. He did not give evidence before me but it is admitted by Mr. Parke that he is a friend of his. He also said that he had spoken to Smith on a number of occasions and knew the treatment he was getting from the Club. Smith had been warned by the Club in January 1985, about his conduct and he said that Smith was phoning him up and letting him know about this. 39. Mr. MacFeely said that he had discussed the plaintiff's conduct with Mr. Parke, Mr. Anderson and Smith. They were all good friends. In my judgment, those persons were all friendly together. However one categorizes the precise nature of the friendship, I have no doubt that they often discussed the plaintiff from the time when Mr. Parke left the Club and they all, in varying degrees of intensity, did not like him. 40. I shall now turn to the issues. Justification 41. The burden is on the defendants to establish that the defamatory statements are substantially true. Learned judges have used a variety of expressions and the most commonly used is that the sting of the libel must be proved to be true. One finds, for example, in the speech of Viscount Cave in Sutherland v Stopes (1925) Appeal Cases p.47, a quotation from Edwards v Bell where the judge said at P.59:
42. The first matter is to decide what the words mean. The plaintiff in his statement of claim pleads only the natural meaning of the words and therefore, in my judgment, the appreach should be that the words mean what they say. There is no secondary meaning pleaded or any innuendo. The words are ordinary English words and it only complicates matters to try to replace the words used by other words. The words which contain the main gist of the libel and are admitted to refer to the plaintiff say that he has not the slightest idea how to conduct himself in a professional manner when he became involved in soccer and also that he made a fool of himself when in charge of a first division club. Whether these words just mean that the plaintiff is not fit to be a soccer manager of a professional team is not necessary for me to decide. The words, as I have said before, have an ordinary English meaning. They are written by a person well versed in words and they mean, as I have said, that the plaintiff did not have the slightest idea how to do conduct himself in a professional manner when he became involved in soccer. As I have said before, the defendants say that no attack is made on the plaintiff insofar as his normal character or standard of behaviour is concerned. I ventured to suggest in the course of this action that the words "professional manner" could embrace a variety of matters; for example, the plaintiff's behaviour on the field of play when sitting on the bench, whether he was doing something which one would say was unprofessional; or his manner of the treatment of his players such as paying their regular wages; or the conduct of the football team in that the plaintiff had instructed them to play in a foul manner. 43. Although, as I have said before, there is no secondary meaning pleaded to these words, the words "professional manner" embrace, in my judgment, that standard of conduct which one would expect to find in a football manager of a first division club in Hong Kong. The defendants have sought to justify this libel on the basis that the facts which are stated in the article are limited to matters of tactical decision by the plaintiff. In my judgment, this article goes further than that. The libel is that the plaintiff had not the slightest idea how to conduct himself in a professional manner and that when involved with Harps he made a fool of himself and in my judgment, therefore, the approach to this aspect of the case is whether or not the defendants have justified the sting of that libel. 44. Although the article contains only a small number of incidents, the defendants are entitled to rely on other matters in their defence of justification and to rely on matters which occurred after the date of publication. Facts which occurred within a reasonable time after the publication of the libel and which go to show the existence of an alleged tendency are admissible in law: see Maisel v The Financial Times Ltd. 1915 3 K.B. at p.336. The defendants rely on matters in relation to what are called formations and also an incident which happened in the F.A. Cup Final some three months after the publication. The weight to be attached to them is a question of fact for me. 45. I gave leave, as I have said before, to the defendants to add additional facts to support their defence of justification and they are now all set out in a re-amended defence. There are twelve items on which the defendants rely. They also rely, as a matter of general background, which is pleaded in their re-amended defence, on the fact that the plaintiff is a businessman and had no previous experience of Hong Kong soccer and/or no managerial or administrative experience, even as they say, at the lowest level. As I have said earlier, the plaintiff is a person who may well have had limited experience in the soccer world and only very limited experience insofar as any administrative role in soccer. He had had no previous experience in the running of a football club. Nevertheless, those facts in themselves clearly do not justify the libel. What has to be shown by the defendants is that in his conduct as manager of this first division team he fell below the standards so that the words which are used in the libel can be classified as true or substantially true. I shall deal with them in the order in which they were presented to me which is a slightly different order than appears in the pleadings.
46. The plaintiff told me and I accept from him that Mr. MacFeely was a person given to swearing a great deal when on the bench and with the football players. Although it may well be that the use of foul language is part and parcel of football managers-and/or football players, I am satisfied that the plaintiff objected to this form of behaviour. He also thought in view of the poor record of the Club that Mr. MacFeely was not a good coach and that Sammy Yu would be better. 47. The defendants do not suggest that the plaintiff was in any way acting wrongly or unprofessionally in not re-engaging Mr. MacFeely. What they say is that he should have appointed a person with equivalent qualifications. I do not agree with that. The plaintiff albeit he had limited experience, did appoint a coach and the team became very successful. I can see nothing in this incident which in any way justifies the libel.
48. The plaintiff readily admitted that he did use different formations, but what is important in my judgment to recognise insofar as this allegation is concerned and in the other allegations made against the plaintiff, is that the motivation for these formations was to make the team win or at any rate not to make the team lose. But for the plaintiff there would have been no team at all. There was, I find, no vanity on the part of the plaintiff. What there was was an enthusiasm to make the team better and there is no doubt at all that the team did become better under the plaintiff's control. It may well be that there was some error of judgment in playing a formation which had not been thought out in depth or rehearsed before a match occurred, but I do not consider that this justifies the defendants using the words which they have deliberately chosen to use in this libel. 49. The defendants called a football player of great international reputation, Mr. Gordon MacQueen. I do not set out his record. He is a person of very great experience in English football. He came to Hong Kong and played for Seiko. He has been an international on many occasions with Scotland and his playing ability and playing reputation is of the highest. He gave evidence with regard to the formations and said he had never heard of some of the formations that the plaintiff adopted. He said that there were two recognised formations: four-two-four and four-three-three and any new formation, he said, would have to be justified or would have to be worked out. He also said, which in my judgment is significant, that the standard of Hong Kong soccer was very poor; only a handful of players, he said, could play in any of the divisions of major European Football Leagues and he reiterated that the professional team needs to be run in a professional way. As I have said, the plaintiff did adopt an unusual formation on occasions and in the game against Harps and in the game against Happy Valley after the publication of the libel he utilised a formation which was not successful. 50. In my judgment, as I have said before and I repeat, the motive and intent of the plaintiff was for the beat purpose, namely that of seeking to improve this failing football club. He instilled in them confidence. He made them financially secure and he tried as best as he could to change the tactics so that the team either would win or would not lose and in this, in my judgment, he was successful. 51. Mr. Anderson also said that when he was told, as the team captain, that a different formation was to be played, he instructed the other players to disregard the new formation and keep their normal position. Cheung Kam Kan, to whom I refer later, said that Anderson or the senior Chinese player did not so instruct him. The players did play in unusual formations and I do not accept this evidence given by Mr. Anderson.
52. This incident which happened, as I have said, three months prior to the publication of the article was again motivated by the plaintiff wanting to improve the performance of the team. 53. I have been provided with the reports in the South China Morning Post of the games played from 29th September, 1984. These are agreed between the parties to give an indication, as seen through the reporter's eyes, of how the team performed and what happened. For example, in the game where Harps won the second game on 4th October, when the plaintiff had nothing to do with this Club, the reporter says that the performance of Harps was at best mediocre and the paragraph reads:
The game was apparently a bore and it was played before only 940 people. 54. On 18th October in the game Happy Valley against Harps, the reporter noticed that "there appears a distinct lack of weight about this Harps side ........ they desperately need a front man .....". On 26th October against Seiko, the reporter said "Harps did not even have a signle direct shot at goal in the 90 minutes of play. Nor were they able to make one single well-organized move towards goal and therefore fully deserved to be beaten ....... They showed little organisation and lack of ideas in their moves .......". Their troubles continued, and as I have said, they lost the next four games before the plaintiff took over. They were a demoralised team. 55. In the first game, when the plaintiff altered the position of Anderson on the 12th December, the report says that "Harps, the team, very much in the news lately, took to the match with a number of positional changes. The most evident was the posting of Dave Anderson up front instead of playing him in his usual position in the defence. The changes, however, failed to produce any improvement in the team. Their attack remained inadequate. Anderson was eager to do well but obviously was not suited to his new position after having played for years in the defence. Further-more, he did not have the badly-needed support from his colleagues. He was replaced midway through the second half." The decision, there-fore, to play Anderson in that roll was not successful but it may be that it was his team-mates who let him down. Nevertheless, I do not consider that it justified the plaintiff using the defamatory words about the plaintiff's conduct which they did. The match was not lost, and desperate measures to halt the Club's disastrous slide were justified. The plaintiff was acting with the best interests of the Club at heart.
56. The other items I now turn to are other facts which the defendants say also justifies this libel. It may be that some of and some these were known to Mr. Parke and some discovered later on, but they do give, in my judgment, an indication of the attitude of the defendants in this case. They seek to justify on other matters, some of which are trivial in the extreme, and what has happened, in my judgment, is that they have sought, either through Mr. Parke, or more probably through Mr. MacFeely, Mr. Anderson and Mr. Smith to discover any matters which can be utilized in their defence; no doubt they have sought to find every possible occasion when they could hold the plaintiff up to. ridicule. The information for these matters must have come from Mr. MacFeely, or Mr. Anderson, or Hugh Smith. Mr. Parke had little to do with the Club, had not watched the Club after the plaintiff took over, and says he had very little contact personally with the Club, and had no contact personally with the plaintiff. All the information, therefore, as I have said, has come from this group of three persons who all were disappointed men and had personal motives for not liking the plaintiff. I shall go through these incidents in turn, but it is right to point out, in my judgment, that these allegations demonstrate the intransigent attitude of the newspaper towards the plaintiff and the fact that they are taking every opportunity even at this trial to hold the plaintiff up to public ridicule.
57. This incident does demonstrate how MacFeely in particular and most probably Anderson always seek to belittle any action of the plaintiff.
58. The plaintiff had an idea of bringing him out of retirement, using him as a striker for a short period of play. He recognized that he would have to be got into shape, and that he obviously could only be used for a short time. One of the problems, of course, with Harps was that they just could not score goals, and as is ordinary common sense, if one is to have any form of success in soccer goals have to be scored. That was basically the reason why Anderson played as a striker for a short time; and this idea of utilizing this retired footballer was, as the plaintiff tells me, really for the purpose of trying to overcome the problem about scoring goals. 59. Mr. Anderson said that the plaintiff mentioned this in a training session that Chung Chi-doi would be brought out of retirement, would stand and pass the ball and everyone would run for him. He thought this was an unthinkable suggestion as Chung Chi-doi was 44 and grossly over-weight. 60. Mr. MacFeely gave a slightly different version. He said that he was told by the plaintiff that he was suggesting signing Chung Chi-doi. He would be kept on the bench until the last 15 minutes and then he would be brought on in the hope he would score a goal. He said "I thought this was straightforward nonsense. ". 61. Again, this matter appears in my judgment to have been greatly exaggerated by the defendants. The suggestion may to some appear slightly unusual but, nevertheless, Harps had a serious problem, and the plaintiff was exploring the possibilities of what could be done to remedy the situation. Chung Chi-doi was never brought out of retirement nor ever used in a game by the plaintiff; this suggestion was recollected, no doubt after the writ had been issued, by Mr. MacFeely and Mr. Anderson, two people whom I have said before, obviously wanted to try to recall as much as possible to support the defendants' defence in this action.
62. There were other matters canvassed in evidence. One of them was the players playing basketball, and the plaintiff was vigorously cross-examined about the damage this would cause to his players. Mr. Parke gave evidence about how unprofessional this was. That matter was later abandoned by the defendants after Mr. MacFeely said that there did not appear anything wrong in that. 63. I have not repeated all the evidence because this judgment would be overly long. I have, however, considered all the evidence given in this case, and I have re-considered it. 64. There are two other relevant factors which must be put in the balance, because I have earlier simply dealt with the twelve allegations of the defendants.
65. This witness was not cross-examined. 66. These two factors are of importance and I find that from the very beginning the plaintiff has acted with the best interests of the Club in mind. He was a successful manager/coach and acted throughout in a professional manner. 67. I remind myself that the defendants have to prove that the sting of the libel was substantially true and I bear in mind Mr. Mitchell's citation of a sentence of Lord Justice Sellers in the Broadway case (1965 1 W. L. R. 805) that persistence in a plea of justification may show sincerity and belief in what was said. I have to dismiss from my mind the motive for writing this article; this is irrelevant in this part of the case. Even if this article was malicious, even if it set out deliberately to defame the plaintiff, if it is true that is an end of the matter. I therefore have to ask myself the question, sitting as a judge of fact, is this libel substantially true? I have come to a clear conclusion that it is not, and the defence of justification therefore fails. I would only add that it fails lamentably in my judgment. 68. I then turn to the second defence - fair comment. Fair Comment 69. This is different from the defence of justification because the defendant in this defence has to prove that the facts, on which the comment is founded, are true, and that the comment on these facts is fair. Although the state of mind of Mr. Parke, when he wrote the article, was irrelevant for the defence of justification, in this defence, it is most material. The article contains only a limited number of facts. Nevertheless, the defendants can rely on other facts to justify the comment, as long as he was aware of those at the time he wrote the article. Mr. Parke tells me that there were some additional matters in his mind because he had heard various stories about the plaintiff, but Mr. Parke had not seen Harps play and had obtained his information, either from Mr. MacFeely or Mr. Anderson, or from some of his other reporters. The only matters, which I hold were in the mind of the plaintiff when he wrote the article, were those matters which he set out in the article. This is a dissimilar position to that obtaining in, e.g. Kemsley v. Foot (1952) Appeal Cases at page 345 where the substratum of fact was to be implied from the actual words used. 70. This article contains the four incidents which I have referred to as (1) to (4) in the defence of justification. The first matter is in a paragraph which starts off "one of the first to feel the displeasure of Mr. Ting, was long time coach, Colm MacFeely who has not as such been in charge of the team for several months. " That is a statement of fact which is true. It has always been the defendant's case that the failure to re-engage Mr. MacFeely was in no way wrong. They were complaining about the failure to appoint a coach of similar experience and qualifications. The article does not say that, and one notices the word "displeasure" is used, which indicates that there is some personal judgment being made upon the character of the plaintiff. 71. The second matter concerns formations. The paragraph says "Harps have turned out in some quaint formations, including one of 1, 3, 5, 2" etc. That actual formation is incorrect. I think the defendant meant 3, 5, 2, which was a formation which was played in a match - Happy Valley against Harps on 26th February. 72. The third matter concerns Dave Anderson, who had played, as I have mentioned earlier, at centre-forward, in a game some three months before. 73. The last aspect concerns Hugh Smith. I note Mr. Parke calls him "talented mid-fielder Hugh Smith", and he says that Smith is now "languishing in the reserves a ridiculous situation". The defendants conceded that it was the right of the manager to drop players. There was nothing in any way unprofessional or wrong about that matter. What their complaint was, in the evidence was that, it was the replacement of Hugh Smith by Dave Wilkes younger brother, Glyn, who was a very inexperienced footballer from England. The article does not really assert that because it says "but the high point of Harps' most recent dealings came this week when Dave's younger brother, Glyn, flew into town, and was promptly offered trial terms by the Club". The article finishes on a sarcastic note, as apparently Mr. Parke is suggesting that Wilkes was a late replace-ment for Dave Wilkes fiancee who could not get away from work. Mr. Parke concluded this part of the article by saying "maybe it's just as well Harps might have signed her". 74. The facts which appear from the article therefore and, which are true, are the playing in a formation of 3, 5, 2, which was on 26th February, 1985, the positioning of Dave Anderson as centre-forward some three months ago, and the dropping of Hugh Smith. Mr. Parke's evidence about Mr. MacFeely was that he was horrified when that occurred and that also was three months ago. The issue on this aspect can be simply set out and I can do no better than a citation from the judgment of Lord Esher in the leading case of Merrivale v. Carson 20 Queen's Bench Division 275 at page 281, where that learned judge says:-
75. Over the years, there has been built up a number of helpful guiding conditions which have to be met, if the comment is to be fair. They are found conveniently set out at paragraph 709 of Gatley, the 8th Edition, at page 707. 76. Condition (C) is not relevant here because the comment does not contain an imputation of corrupt or dishonest motives. (D) is that the comment must be such as fairly to be described as criticism. In my judgment, this comment is criticism. It was suggested by Mr. Yu that it went beyond that. But, in my judgment, I do not agree. These words are not mere invective, they are criticism. 77. As far as (A) and (B) are concerned, those are for this action important matters. (A) says it must be based on facts contained in or referred to in the publication complained of, and (B) the facts must be sufficiently true to make the comment fair. It is of importance to note at the outset that this article, which is called 'Simply soccer', a weekly column presented by Robin Parke, is concerned with soccer, and is one of the series of articles which he wrote every week on soccer. This article is not concerned with the running of the Harps' Football Club as such. Nor is it commentary on the performance of that Club. One can well understand words of criticism being levelled at a manager when the performance of his Club is poor, or when things are happening, which, from a public point of view, affect either public confidence in the Football Club or the public attitude to a Football Club. This article, in my judgment, is nothing more than a personal attack upon the character of the plaintiff. 78. Mr. Yu in his very helpful address to me posed a number of important factors, which he said should be examined, to discover whether or not this really was fair comment. Is it, he said, really an attack on the tactics adopted by a Club, which on any view, was successful at this time? Or was it an attack on Mr. Ting personally? In my judgment, as I have said, this is not an attack on the tactics adopted by the Club. It is an attack on the conduct of Mr. Ting in the running of that Club. One might have thought reading this libel, that the businessman of Hong Kong who had come into the football world, and had not conducted himself in a professional manner, and was making a fool of himself, had underneath him a wholly unsuccessful team. That is not the true position. This team had become successful under Mr. Ting. From a public point of view, they had shrugged off those previous six defeats and had knitted themselves into a team that was producing very good results. The quaint forma-tion and the Dave Anderson incident were matters which the public no doubt were aware of if they had either watched the game or read the reports on the game. As far as Mr. MacFeely was concerned, that was a matter essentially private in the Club and had occurred a number of months before. Hugh Smith languishing in the reserves was also a matter no doubt known to the public. What is being attacked therefore are these decisions of the plaintiff, which he made when in charge of this first division Football Club; they are decisions which are criticised because they led to apparently unsuccessful tactical positions. The quaint formation was unsuccessful. The Dave Anderson incident was unsuccessful. It might appear therefore that these tactical decisions of this businessman, Mr. Ting, had caused Harps to lose their matches; that is factually incorrect. If, therefore, the defendants assert that this is a fair comment on a limited aspect of the plaintiff's conduct in this football team, then clearly the full facts have not been presented to the public. A one-sided approach has been made by this writer. One might have thought that it might have been a natural reaction for the reader to consider that this businessman had ruined a good football club. It is an essential ingredient of the defence of fair comment that the facts on which the comment is based must be true. The formations, the Dave Anderson incident and Hugh Smith being in the reserves are factually true but, in my judgment, the comment which is made must be made on all of the relevant facts. The comment must not misstate facts. Similarly, the comment should not omit some relevant facts which in itself may amount to a misstatement. Nothing is said about the success of this team under the plaintiff. Nothing is said that the Club, despite the earlier troubles and the probability of not continuing, has managed to survive under the plaintiff. Although the writer of a libel may be prejudiced, this writer was highly biased, in my judgment. He also had a personal view of the Club which he himself had founded. No mention is made of that, although that in itself may not be sufficient to affect a judgment as to whether or not this was or was not a fair comment. He also is a friend of the three persons on whose treatment he comments - that is not disclosed. 79. In the passage to which I have referred in Merrivale v. Carson, the learned judge gave an example of when a writer would have gone beyond the limit of fair comment when for example the writer attacked the private character of the author. In my judgment, in this article, the writer attacks the character of the plaintiff, and he asserts that "I was merely commenting upon the facts which were in the article.". The issue for me on this matter is an issue of fact. I would have directed the jury that they should consider all the evidence in this case which has been given of matters up to the date of the publication of the article. They should disregard those matters which occurred after the article, whether they be in favour of the plaintiff or in favour of the defendants, and they should ask themselves this question - would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said? Unfortunately, I do not have a jury and, therefore, I must answer that question myself. In answering that question, I consider it right that a liberal approach should be given to matters of comment, as it is not in the public interest that a restricted view of this defence should be taken. Nevertheless, despite that warning to myself, I have come to the clear conclusion that this is not fair comment. No fair man, in my judgment, would have made that comment on the plaintiff. Malice 80. The last matter, which is set out in Condition (E), paragraph 709 of Gatley, is whether the comment represents the honest opinion of the commentator and is published without malice. In view of the finding which I have made, it is not necessary for me to decide this issue. Nevertheless, I do consider it my duty so to do, particularly bearing in mind that the plaintiff asserts that Mr. Parke was malicious when he wrote the article, and that Mr. Parke vigorously denies that allegation. ' 81. The most recent learning on malice is a decision of the House of Lords to which I drew the attention of counsel. In Horrocks v. Lowe (1975) Appeal Cases page 135, the speech of Lord Diplock which begins at page 149 is a model of clarity and conciseness, which one has come to accept from that very learned judge. Although that case turned on malice in so far as qualified privilege is concerned, in my judgment it applies equally to malice in fair comment cases. At letter (F), the learned judge says: -
At page 150, at letter (C), the learned judge continues:-
82. The thread that runs throughout this speech is also that judges and juries should be slow to draw adverse inferences of malice from matters contained either within the article or, indeed, matters extrinsic to the article, and that also judges and juries should be slow to draw the inference that a person was so far actuated by improper motives as to deprive himself of the protection of the privilege, unless they are satisfied that he did not believe what he said, or wrote was true, or that he was indifferent to its truth or falsity. I confess that I have found this aspect of the case difficult. 83. There are a number of unusual factors which have been found by the evidence in relation to the main participants. The writer was a person who, at one time, controlled Harps Football Club. He had an intimate knowledge of that Club. His close friend, Mr. MacFeely, with whom he had run the Club, was not re-engaged. That I find was a matter that angered Mr. Parke. He did not like the fact that his friend was not re-appointed. Mr. Parke did not like that his friend, Dave Anderson, had been moved from striker and this fact also, in my judgment, rankled with him. The final straw really came with the incident of Hugh Smith. 84. On 8th March, 1985, that is the day before the publication of this libel, there was published an article in the same newspaper, the South China Morning Post, which is found at page 46 of the bundle of documents. It is written by another football writer, Lee Wai Kit, and concerns Glyn Wilkes flying in from Barnsley and possibly taking up an offer from Harps. The writer contacted the plaintiff and commenting on Hugh Smith, the plaintiff said "there is a team work problem between him and the rest of the team. His passing has left much to be desired. ". Mr. Parke on the evening of 7th March, that is the date when the article was written and the newspaper published for the next day, was the sub-editor, and he read this item and 'subbed it', that is he wrote the headline. Now the headline is on another portion of the article concerning another football matter. Mr. Parke, however, had read the article concerning Hugh Smith, and he told me in evidence that he did not accept that the reason given by the plaintiff was the correct one. He thought that the real reason was that Hugh Smith had a strong personality, and that the plaintiff found him difficult to understand, and he really thought that it was thoroughly unjustified that Smith was being dropped. As he said in his article the following day, he thought it was a ridiculous situation. 85. I find that the matter which triggered off at this article on March, 9th was the incident concerning Hugh Smith, which Mr. Parke had read about the previous day. What then was the motive for Mr. Parke to write the article? Was it, as he tells me, one of his articles on general comment about soccer matters? He said that the Hugh Smith episode was a matter of some importance to those members of the public concerned with football, and that it was a current matter. The article, on any view, is a one-sided approach. The attack on the plaintiff was, as I have said, personal, and one would have thought that Mr. Parke would have readily admitted that when he wrote the article, he was biased. 86. As I have said before, mere bias itself is not sufficient if other matters are satisfactorily proved. Mere bias itself is not sufficient to negative fair comment. He asserted, however, that he was not biased. He had no personal feelings towards the plaintiff at all. I do not consider that those were honest answers which he gave me. He had not seen Harps play at all. He had never consulted the plaintiff or spoken to him at all. He presented, in my judgment, a wholly one-sided picture of this football club under this businessman, as he described the plaintiff. The reason he wrote it, in my judgment, was really to vent the grievance because of the events befalling his personal friends. 87. Why did he mention the incident of MacFeely which had happened some three months earlier and use the word "displeasure"? Why did he make mention of the Anderson affair which had also occurred some three months before? I have no doubt at all, and Mr. Parke really accepted this, that there was close association between Mr. Parke, Mr. MacFeely and Mr. Anderson over the months. Hugh Smith also had been telephoning both Mr. MacFeely and Mr. Parke. He was staying with a mutual friend of Mr. Parke on the South China Morning Post. Clearly, and there really is no dispute about this, Mr. Parke knew exactly what was going on with Hugh Smith and did not like it. In my judgment, when he read that item for which he was then the sub-editor on the evening of March, 7th, it was too much for him. He realized that Hugh Smith may well be de-registered for a player coming in from England. 88. The learned judge in the Horrocks case pointed out very clearly that one must examine either the intrinsic evidence of the article, or evidence which is extrinsic to the article; for example, there may be evidence of the defendant's conduct upon other occasions which permits an inference being drawn that his dominant motive was in some way improper. In my judgment, I am permitted to look not only at personal conduct, which is not relevant here, but at all the surrounding facts of the publication itself and that built within the article. 89. The allegations of fact are concerned with persons well-known to the writer of the article. This is not one of those instances where a journalist is making a comment upon some public happening, whether it be of great or lesser importance, and it is a wholly objective comment; for example, he is expressing his opinion on some play or some book. This is the very man who founded the Club passing a comment on matters relating to his own friends, and the comment he passes is not critical of the way in which the Football Club is run; this is an attack on the personal character of the plaintiff. 90. Another matter I must bear in mind is that the writer of this article was a journalist of some experience with a very good command of the English language. He clearly chose carefully the words he wished to use and he deliberately chose to use words accusing the plaintiff of unprofessional conduct in relation to matters concerning his friends. 91. In my judgment I do consider, therefore, that there are significant factors in this case which justify me in examining closely the real motive of the plaintiff in writing this article. Although expressed to be in a football commentary, is there a personal motive behind it because the defendant was concerned about the plaintiff's treatment of his friends, and if so, was that motive the dominant one? 92. Mr. Parke told me in evidence that he would today have written the same article and that he was not biased. I do not con-sider that he was giving me on these occasions honest evidence. In my judgment, he was deeply affected by the fact that his friends in the football club, which he had started, were, as he thought, being shabbily treated by the plaintiff. First, it was MacFeely to go, then Anderson was being utilised in a way that he did not like and then finally it was Hugh Smith who was going to be dropped from the Club. What Mr. Parke was really doing was venting his personal views on the plaintiff's treatment of these people and in my judg-ment the privilege which the law gives to a person to pass comment on matters of public interest was being misused by Mr. Parke. 93. Nevertheless, it is clear from the speech of Lord Diplock that I have to be satisfied that his desire to protect the public interest played no significant part in his motives for publishing what he believed to be true. I find that Mr. Parke did dislike the plaintiff, was biased towards him and was indignant at what he believed to be the plaintiff's conduct; I also find that he welcomed the opportunity of ventilating these views and exposing them to the public. Nevertheless, I find that his personal view of the plaintiff was not the dominant motive in publishing what he did. 94. I have looked at all of the evidence on this aspect of the case and as I said earlier I have no doubt that one of the motives was to vent his personal feelings in public about the plaintiff. I consider that Mr. Parke was wrong to misuse the position he held as sports editor of the South China Morning Post to write this sort of article. His role was to inform the public of matters of interest concerning soccer in Hong Kong and he should not have permitted his own personal views of the plaintiff, mixed up as they were, with his own views as to the treatment of his friends, to have influenced him in writing this libel. His conduct on that occasion fell short of the normal standard which the public expects to find of those who hold important positions in newspaper journalism. 95. The law, however, states that the protection is only lost when the dominant motive was a personal spite or some other improper motive. I find that there was an element of spite in what Mr. Parke wrote. I consider he was prejudiced against the defendant and that he allowed his friendship of MacFeely, Anderson and Hugh Smith to influence him in writing what he did. Nevertheless, I find that he believed what he wrote to be true and that the dominant motive for writing this article was not improper. I therefore find that the plaintiff has failed in proving that this article was actuated by express malice. I have, however, found that the criticism which was made in the article was not fair comment and so, as I have said before, the defence of fair comment fails. Damages 96. I then turn to the only other matter and that is the assessment of damages. The basis of damages in libel is to compensate the plaintiff for his damaged reputation but compensation means solatium rather than a monetary recompense for harm measurable in money: see on this aspect the citation by Lord Hailsham in Cassell & Co. Ltd. v. Broom (1972) Appeal Cases p.1027 at p.1071, of part of the judgment of Mr. Justice Windeyer in Uren v. Johh Fairfax & Son Ltd. 1967 117 C.L.R. 115. 97. The fixing of damages is a matter of individual judgment, but I do not consider it right that I should have regard to any awards in defamation cases outside the jurisdiction of Hong Kong. What I have to assess is this libel which was published in Hong Kong and the damage to the plaintiff which occurred in Hong Kong. I am entitled to look at the conduct of the defendants from the time the libel was published down to the time I now give my decision. 98. A plea of justification was entered by the defendants and I have found that that defence fails. They have sought to justify this libel from the date it was published and they have maintained that stance in the conduct of their defence. The plaintiff was cross-examined on the basis that he was a person so described in the article and the witnesses for the defence sought to ridicule the plaintiff when they gave evidence. 99. This action has lasted for a number of days and has in itself been reported in the newspapers, although I should say that the evidence in this case has been reported in a scrupulously fair manner. In my judgment, the damages which I may award can include a sum for aggravated damages because of the conduct of the defendants. 100. There have been but few defamation cases tried in Hong Kong and I have been provided with an article by Peter Rose on "Damages for defamation in Hong Kong" published in 19$1 which includes a digest of decisions going back to 1952. One of the decisions in the article was Sim Hok-kwan v. Tin Tin Yat Po Ltd. That was a judgment of the Chief Justice who awarded damages of $120,000 and $60,000 in respect of two libels. I have read the full judgment of that action. I have also read a judgment of a Deputy Judge in 1984. The damages I award should fit in to the general pattern or level of awards in Hong Kong and I pay particular regard to the decision of the Chief Justice, a most experienced judge. 101. In this case, the article appeared in a prominent position in the newspaper; the South China Morning Post has a very large circulation in Hong Kong and the plaintiff was, I am sure, gravely offended by what was contained in the article. It was clear to me, from his evidence and the manner in which he gave his evidence, that he was bitter towards Mr. Parke and considered that Mr. Parke had acted very wrongly in writing it. As I have said earlier, I also consider that Mr. Parke did have a personal motive in writing what he did and misused his position, albeit that in law he was not acting maliciously. The conduct of the defendants in this case has been to belittle and ridicule the plaintiff as much as they can. They have deliberately taken the step of seeking to justify this libel and they have failed. The damages I award therefore do include a sum for aggravated damages to reflect the conduct of the defendants. 102. The Sim Hok-kwan case involved a serious libel on the professional ability of an obstetrician. The plaintiff is not in that category, but he is an educated, successful businessman and this libel was very wounding, particularly as he had saved this Club and had made it successful, although it is right to recognise that it was necessary at a later stage to disband the Club. Further, the award was made in 1981. 103. Doing the best I can to assess a figure which compensates the plaintiff and reflects the conduct of the defendants, I arrive at a figure of $125,000. 104. I therefore give judgment for the plaintiff for that amount.
Representation: Mr. Benjamin Yu, instructed by Messrs. Cheng, Yeung & Co., for the plaintiff. Mr. Denis Mitchell, instructed by Messrs. Deacons, for the defendants. |
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