Chu Siu Kuk Yuen, Jessie v. Apple Daily Litd. and Others
Read the full judgment text of on BabelCite. was delivered on 20 December 2001.
1. This is an action for damages for defamation and for malicious falsehood in respect of an article published in the Apple Daily newspaper on 7 October 1998.
Cited by 31 cases
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HCA017103A/1998 HCA 17103/98 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 17103 OF 1998 --------------------------------
Coram: Yuen J in Court Dates of hearing: 3-7, 10-14 July, 21, 22 December 2000 Date of supplemental materials: 28 December 2000 Date of Judgment: 20 December 2001 ---------------- JUDGMENT ---------------- 1.This is an action for damages for defamation and for malicious falsehood in respect of an article published in the Apple Daily newspaper on 7 October 1998. 2.It was common ground at the trial (although not before) that the article referred to the Plaintiff. The Plaintiff 3.The Plaintiff, a solicitor, was born in 1961. She was brought up in Hong Kong and graduated from the University of Hong Kong with a degree in social sciences in 1984. 4.Whilst working as a social worker, the Plaintiff studied for the London University external degree in law. She passed the English Law Society Final Examinations in 1990 and became a trainee solicitor in a small firm in Hong Kong. 5.The Plaintiff was admitted as a solicitor in 1992. For one year after that, she worked as an assistant solicitor at another small firm. She then moved to Deacons, where she worked in the Conveyancing Department from 1993 to 1995. 6.The Plaintiff left Deacons to set up her own firm in Yuen Long, New Territories after the birth of her first child. 7.The Plaintiff's husband, a chartered estate surveyor by profession, is an indigenous villager of Yuen Long. In 1995, their first child, a daughter, was born. The child was looked after by the Plaintiff's in-laws at their home in Yuen Long. The Plaintiff wanted to take care of the child personally after work, but the long working hours at Deacons and the traveling time between Deacons' office and Yuen Long made this inconvenient. 8.In November 1995, the Plaintiff established "Jessie Chu & Company" in Yuen Long as a sole proprietor. In mid-1997, her office was at Yuen Fung Centre. Her practice was mostly in conveyancing. Clients were gained through her husband's connections and also through his father and brother who knew many members of the local community. 9.In February 1997, the Plaintiff had become pregnant but miscarried in the first trimester. More than a year later, in April 1998, the Plaintiff conceived again as a result of a planned pregnancy. The baby was due in February 1999. The Plaintiff had some vaginal bleeding in August 1998 and she was admitted to hospital for treatment. She was discharged home after 10 days. 10.The article in question was published on 7 October 1998. The Plaintiff was greatly distressed by it (details of her condition appear later in this Judgment). About a week after its publication, she started to feel abdominal pains and 5 days after that, she suffered uterine contractions and had a small amount of vaginal bleeding. She consulted her gynaecologist, who prescribed medication in an attempt to stop the uterine contractions. 11.The uterine contractions however increased and 8 days later, the Plaintiff was admitted to hospital where she received medical and psychiatric treatment (details of which appear later in this Judgment). 12.After about 21/2 weeks in hospital, despite efforts to prolong the pregnancy, she gave birth prematurely to a boy on 15 November 1998 after a gestation period of 27 weeks and 4 days. The child was very weak at birth and was in a life-threatening state for some time. 13.The Plaintiff was discharged from hospital a week after giving birth. The child was discharged in late February 1999, more than 3 months after birth. 14.The Plaintiff has continued to suffer from depression. In August 1999, she resumed working half-days at her firm, and in April 2000 she resumed working full-time. The Defendants 15.It is common ground that the 1st Defendant was the proprietor and publisher of the Apple Daily, a popular Chinese-language newspaper in Hong Kong. The 2nd Defendant was the printer and the 3rd Defendant, its editor. 16.In October 1998, the average daily circulation of the Apple Daily was 415,500 copies. It also had a web-site which carried certain stories of the day. The Article 17.On 7 October 1998, an article was published on the front page of the Apple Daily. It took up two-thirds of the bottom half. 18.There was no dispute at the trial as to the meaning of the words in the article, nor was there any dispute as to translation. 19.The headline was:-
The original Chinese version is set out at the end of this Judgment. 20.The first four paragraphs of the article stated:-
The original Chinese version is set out at the end of this Judgment. 21.There then followed four further paragraphs describing how the victims had lost money through their dealings with the "female solicitor". Although the Plaintiff's name did not appear in these paragraphs, it is clear from the article as a whole that she was the "female solicitor" in question. 22.The article was accompanied by a colour photograph of a reception area behind a pair of glass doors. The name of a firm was displayed on the wall behind the reception desk. The Chinese character of the Plaintiff's surname could be easily seen and the English name "Jessie Chu & Co." could be faintly seen. There was no one in the photograph. The caption read:-
The original Chinese version is set out at the end of this Judgment. 23.The article was also accompanied by a pictorial depiction of how clients had been defrauded of money, and there was a smaller article which referred to the Law Society's professional indemnity fund for losses suffered by clients. 24.The article was also published on the Internet edition of the Apple Daily. 25.It is this article that the Plaintiff alleges was defamatory of her, and for which she claims damages. Apology 26.It is common ground that the Plaintiff had done none of the things referred to in the article. The day after the publication, an apology appeared in the Apple Daily from the Editorial Department of the 1st Defendant. It stated:-
The original Chinese version is set out at the end of this Judgment. 27.There was no explanation of what was the "moment's negligence", or why the newspaper had identified the Plaintiff as the absconding solicitor in the article. 28.In the two days following that, notices were also placed in 6 other Chinese-language newspapers at the Plaintiff's own expense to clarify that the Plaintiff's firm was not the firm referred to in the case publicized in the Apple Daily. Writ 29.On 10 October 1998, the writ in this action was issued. Defence 30.On 13 November 1998, a sum of $1m was paid into Court by the Defendants. This was pleaded in the Defence as a sum paid into Court "by way of amends". 31.It is accepted by the Plaintiff that although s.4 Defamation Ordinance was not specifically pleaded in the Defence, the pleading of the amount paid into Court was made under that section, which provides:-
Issues 32.Originally, the Defendants had denied in their Amended Defence that the article referred or was understood to refer to the Plaintiff. On the first day of trial however, this issue was abandoned by Mr Edward Chan SC, leading counsel for the Defendants. 33.The Amended Defence also denied that the article bore or was understood to bear any of the meanings alleged in the Amended Statement of Claim, i.e. that:-
34.However, at the trial, that defence was also abandoned. Leading Counsel for the Defendants accepted that "the content of the libel was very serious and the impact and injury on the Plaintiff's feeling was great". Indeed, for a solicitor who has to deal with clients' money daily, for whom honesty and integrity are prerequisite, one can think of very few defamatory statements more serious than these. 35.The issues at trial were:-
36.The interesting issues relating to damages are:-
(i) The s.4 Defamation Ordinance defence 37.This defence is based on Lord Campbell's Libel Act 1843. The requirements are that:-
This defence is not however valid unless there was a payment in "by way of amends". 38.The burden is on the Defendants to establish that the three requirements of this defence has been fulfilled. If the Defendants fail to do so, the defence fails (Gatley on Libel and Slander 9th ed. paragraph 18.12). 39.Even if all the requirements are fulfilled, however, the Defendants do not succeed in the action, in my view, unless the amount paid in meets the award of damages (see fn 87 Gatley paragraph 18.15). This must be so because the payment in is in full satisfaction, as a plaintiff cannot take it out and seek to carry on with the action to recover further damages. A lesser sum than the award, which the plaintiff is justified in refusing, would not be payment of a sum "by way of amends", and would not validate the defence. Insertion of apology 40.I turn to the requirements of the defence. Clearly the third requirement has been fulfilled. An apology had been inserted on 8 October 1998 before the commencement of the action on 10 October 1998. Insertion without actual malice 41.As for the first issue whether the libel was inserted without actual malice, it is first necessary to consider the evidence as to how the article was inserted. 42.The Defendants' evidence comprised that of Cheng Ping Wah, then the Senior News Editor of the Apple Daily. 43.Cheng's evidence was that on Friday 2 October 1998, a public holiday, he received a telephone call on the Apple Daily hotline from a person who did not give his full name or means of contact. This person complained that a solicitor practising in Yuen Long had defrauded clients in the manner later set out in the article and had absconded with funds. No details of the solicitor were given. The caller said that the Law Society had reported the matter to the police. This part of Cheng's evidence was not substantially challenged. 44.The next day, 3 October 1998, Cheng obtained confirmation from Chief Inspector Chan Tsan-wing, Assistant Commander (Crime) of the Yuen Long District Police Station, that a report had indeed been made of deception by a solicitor in the locality. However, Cheng was not given details of the solicitor involved. This has been confirmed by the police. 45.Cheng's evidence at trial was that on 5 October 1998 (the day of the Mid-Autumn Festival), Cheng's colleague Lau Kwong Kwun (who had since been imprisoned for obtaining information from police-associated sources unlawfully) told him that the police had visited premises of the solicitor in question which were on either the 2nd floor or the 5th floor of Yuen Fung Centre. 46.On 6 October 1998 (being a public holiday), Cheng visited Yuen Fung Centre himself. He said he went to the 2nd Floor but did not see any solicitors' offices on that floor. He went to the 5th Floor, where he saw the Plaintiff's office premises, so he assumed that the solicitor in question was the Plaintiff. 47.He also said in evidence at the trial that he had asked the watchman of Yuen Fung Centre whether police had visited any premises in the building recently. He claimed the watchman had said that he thought the police had been to the 5th Floor. 48.He then asked his friend(s) in the legal profession about personal details of the Plaintiff, such as her age, year of qualification, and type of practice. He then wrote the article in question. He embellished it, such as by writing that the police had been to the Plaintiff's residence but could not find her there. This was based on his own inference that the police were likely to try to look for the solicitor in question at home, and his deduction that a solicitor absconding with funds would not likely have remained at home. 49.The next day, 7 October 1998, the article was published. Complaints were received the same day from solicitors acting for the Plaintiff and from the Law Society. Cheng then found out from his source that the solicitor in question was a Chan Hon Ching who had practised from the 2nd Floor of Yuen Fung Centre. He sent a colleague to Yuen Fung Centre again, and Chan's previous occupation of premises on the 2nd Floor was confirmed by the presence of a letter written to him which had been posted up on the door of one of the office units. Cheng said that since the letter had not referred to Chan as a solicitor, he had not been alerted during his own visit to the possibility that Chan was the solicitor in question. This part of his evidence was not substantially challenged. 50.The issue is whether the article had been inserted without actual malice. The Court would have to consider whether the article had been inserted without an honest belief in its truth, or in knowing indifference to whether it be true or false, or where the person responsible had purposely abstained from making inquiries which would have revealed the truth, or where he had deliberately stopped short in his inquiries in order not to ascertain the truth (Gatley on Libel and Slander, 9th ed. paragraphs 16.13 - 16.16). 51.Cheng's evidence was tested in cross-examination. Of those parts of his evidence which were substantially challenged, I accept his evidence that he had obtained the information on 5 October 1998 about the office premises of the solicitor in question from Lau. 52.Lau's name did not appear in Cheng's Witness Statement, which in fact contained no reason for his visit to the 5th Floor of Yuen Fung Centre on 6 October 1998. However I accept that Lau's name had not been previously revealed because Cheng wanted to protect him. Indeed Lau's name was only revealed by Cheng in the course of cross-examination after legal submissions on privilege and after he was given legal advice from leading counsel with the consent of the Plaintiff's leading counsel. 53.Further I have noted that Cheng's Witness Statement did not explain why he went to the 5th Floor on 6 October 1998. I do not accept Cheng's evidence that a watchman had told him that the police had visited the 5th Floor and that was what led him to that floor. There was nothing in his Witness Statement about such an incident, it is an incident that he could not have forgotten given the fact that a writ was issued within 3 days of the article, and (unlike his colleague Lau) Cheng would have had no reason to protect the watchman. 54.However I accept that Lau had told him that the office of the solicitor in question was on either the 2nd Floor or the 5th Floor. When Chan's identity became known to Cheng on 7 October 1998, Chan's name was included in the draft apology proposed by the Apple Daily that very day (even though the name did not eventually appear in the apology published the next day). This shows that Chan's involvement was not made up ex post facto in an attempt to explain the article. It is not disputed that Chan's office had been on the 2nd Floor. Further it is not disputed that Chan's nameplate had been removed from the directory on the 2nd floor. 55.If Cheng had known earlier that the solicitor in question was not the Plaintiff but was Chan, there would have been no reason for him not to have published the correct identity. The article would still have been just as good news. The above is therefore consistent with Cheng having made a most unfortunate mistake, but not with his having inserted the article with actual malice. 56.The Plaintiff's counsel submitted that account should be taken of the fact that some matters in the article had been fabricated such as the allegation that the Law Society had reported the matter to the police, that the police had visited the Plaintiff's home, and the photograph with the caption that the Plaintiff's office had been left vacant (when the photograph had been taken on a public holiday). Cheng admitted in cross-examination that he had made assumptions and deductions and embellished the article with them. 57.However, having accepted that (a) he had first been given information from an unnamed caller on the newspaper's hotline, (b) the Plaintiff was unknown to Cheng, (c) he had obtained confirmation from Chief Insp Chan that a report had been made of fraud by a solicitor in Yuen Long, (d) his source Lau had told him that the premises of the solicitor in question was on the 2nd Floor or the 5th Floor, (e) Chan's office had been on the 2nd Floor but (f) no solicitors' nameplate appeared on the 2nd Floor at the time of his visit, I find that Cheng had not inserted the article without an honest belief in its truth, or in knowing indifference to whether it be true or false, or had purposely abstained from making inquiries which would have revealed the truth, or had deliberately stopped short in his inquiries in order not to ascertain the truth, but was rushing to publish a "scoop". I find therefore that the libel had been inserted without actual malice. Failure to prove insertion without gross negligence 58.Having said that, I find that the Defendants have failed to show that the libel had been inserted without gross negligence. Cheng's assumptions and deductions had been made too carelessly. He could and should have waited the next day (7 October 1998, being a working day) to observe whether the Plaintiff's firm would open for business. He could and should have verified the Plaintiff's identity as the absconding solicitor with the Law Society and Chief Insp Chan the next day. Whilst they might not have revealed to him the identity of the solicitor in question, they would have informed him that the Plaintiff was not that solicitor (as in fact they did after the article was published). 59.There was no or no adequate explanation from Cheng as to why he could not have done those acts, any one of which would have revealed that he had made a most unfortunate mistake. I therefore find that the s.4 defence has not been established by the Defendants. (ii) Claim for malicious falsehood 60.As for the cause of action in malicious falsehood, the Plaintiff would need to prove malice. As I have mentioned above, I find that the Defendants had not inserted the libel with actual malice or recklessly, but had been grossly negligent in doing so. That would not be sufficient to found an action for malicious falsehood. (iii) Damages 61.I then come to damages. The heads of damages claimed are general damages comprising (a) compensatory damages, including a general loss of business profits, (b) aggravated damages and (c) exemplary damages. Special damages being actual pecuniary loss suffered, including medical expenses and fees in specific cases, have also been claimed. Compensatory Damages 62.I shall deal first with compensatory damages. It is well-established that general compensatory damages serve three functions: they are to console the Plaintiff for hurt and distress suffered, to repair the harm that has been done to his reputation (including his business reputation) and to vindicate his reputation. 63.The factors to be taken into account have been set out in the Elton John case, John v MGN Ltd [1997] QB 586 at 607. First and foremost, the Court considers the gravity of the libel. The libel in the present case is an attack on the honesty and integrity of a solicitor. It is well-recognized that "a lawyer's practice is founded and maintained upon the basis of a good reputation for professional integrity and trustworthiness. It is the cornerstone of a lawyer's professional life" (Church of Scientology v Hill quoted in Robert Chan Hung Yuen v Hong Kong Standard [1996] 4 HKC 519, 534). 64.Further, one must consider the Plaintiff's reputation. The Plaintiff had a good reputation in Yuen Long, the area referred to in the headline and the article. This was deposed to by Chan Chee Shing, a solicitor who had been employed by the Plaintiff just before the publication, and by Mr Lee Yuet Man, one of the clients who gave evidence. He said the Plaintiff was the only solicitor he could trust in Yuen Long. The Plaintiff herself said that because of her local connections, a number of local people whom she did not personally know knew of her. The article would therefore have had a more acute effect on her reputation in Yuen Long, as contrasted with a libel of an anonymous lawyer in the city, not living and working in a small circle. 65.The Court should also take into account the fact that the libel was published on the front page, in large eye-catching print, of a newspaper enjoying a wide circulation. Apart from the more than 415,000 newspapers sold, the article was also carried on the internet edition, although the hit-rate is not known. 66.The above factors show that this was a particularly serious libel with grave consequences. Having said that, the Court would take into account the fact that an apology was published the next day. Unfortunately, the apology did not explain why the Plaintiff had been named in the article, and this left a query in the Plaintiff's mind which caused her continued distress. 67.Dealing first with compensatory damages, I shall first turn to the distress and hurt suffered by the Plaintiff for which general damages are meant to be consolation. The issue in the present case is whether the Defendants are liable for injury to the Plaintiff's mental and physical well-being. The Plaintiff suffered depression, and also had pre-term delivery of the child she was carrying at the time of the article which delivery was, on the Plaintiff's case, due at least to a material extent to the stress caused by the publication. 68.I shall first deal with the issue whether in law, depression and pre-term delivery are within the ambit of damages in an action for defamation. I shall then deal with the issue of fact as to whether the article did cause her to suffer depression and the pre-term delivery. (1) Damages for mental and physical injury recoverable in law 69.Mr Edward Chan SC, leading counsel for the Defendants, has referred me to a number of English decisions for his proposition that only damages for distress may be awarded in an action for defamation, and that injury by way of mental or physical illness is not compensable. The English cases 70.Allsop v Allsop 5 H&N 534, decided in 1860, was a case of slander, a cause of action which required proof of special damage. A slander was spoken of a married woman. She fell ill and her husband incurred expense in attempting to cure her. Those expenses were relied upon as the special damage for the cause of action. It was held on demurrer that no cause of action had been shown. 71.The ratio stated was that the type of special damage required in an action for slander must be the natural or necessary result, not depending on "the peculiarities of the particular individual". 72.There was also a fear that if such special damage for bodily injury were allowed, then mental suffering would also be included, and all slander would then become actionable, whereas the law was "jealous as to actions for mere words". 73.In my judgment, the first reason can no longer hold good. That decision was given long before the law developed the "egg-shell skull" principle in the tort of negligence. It is now clear that there is no difference between an "egg-shell" skull and an "egg-shell" personality (Page v Smith [1996] 1 AC 155, 185). A tortfeasor must now take the plaintiff as he finds him, whether the plaintiff is prone to a particular physical illness or a particular psychological or mental illness. 74.I see no reason why that should not also apply to the tort of defamation. In Humphreys v TWT Ltd (1993) 120 ALR 693, the Federal Court of Australia upheld the judge's holding that on the matter of damage to the plaintiff's feelings, there was no reason why the ordinary tortious principle, that the defendant must take the plaintiff as he finds him, should not apply in the field of defamation as it applies to other aspects of tort law (113 FLR 402, at 418). 75.As for the second reason in Allsop, that was clearly a policy decision relating to the cause of action of slander, which is not applicable to a libel action such as the present one. 76.I obtain some support for the view that Allsop is outdated from the criticism of the decision in McGregor on Damages 16th ed 121. 77.The decision in Allsop was followed the next year in Lynch v Knight (1861) 9 HO Cas 577, also a case of slander. In that case, the plaintiff's husband forced her to leave him and to return to her father's house, whereby she lost the consortium of her husband. The Court held that the husband's conduct was not a natural and reasonable consequence of the slander and was not a pecuniary loss. It added nothing to the ratio in Allsop. 78.I was also referred to Wheeler v Somerfield [1966] 2 QB 94. There a plaintiff, who acted in person, sought to argue that his cataracts had deteriorated as a result of a libel. Lord Denning MR said (at 104) that he had never heard of a case where a man has been allowed to claim damages in a libel action for injury to his health. He said:-
79.In that case, the plaintiff failed on the facts as his own medical evidence could not prove that the cataracts were due to the libel. 80.As for Lord Denning's comments, it is noted that he recognized that there could be cases where a libel might cause injury to health. However insofar as he was saying (obiter) that a libel action concerns only injury to reputation and not injury to health, that would appear to be at variance with one of the functions of damages in defamation, which is the consolation of distress and hurt suffered by a plaintiff, matters clearly pertinent to at least psychological health. The Australian cases 81.In Australia, there have been a number of cases where the courts have held that injury to health is compensable in an action for defamation. In Rigby v Mirror Newspapers Ltd (1963) 64 SR (NSW) 34, the plaintiff pleaded that the defamation had caused "pain of body and mind". The defendant failed in an attempt to strike out the pleading. 82.Allsop was discussed in detail by the judge who declined to follow it for reasons consistent with those set out in paragraph 73 above. The judge held that the law of causation in relation to an action for defamation should be no different from that in relation to actions for other torts. Where illness fairly and naturally resulted from the defamation, there was no reason to limit the damages. Support was found in the American Restatement of the Law of Torts that "one who is liable to another for a libel or slander is liable also for emotional distress and bodily harm resulting therefrom which is proved to have been caused by the defamatory publication, or in the absence of such proof, for such emotional distress as normally results from such a publication". 83.In Mirror Newspapers v Jools 65 ALR 174, a doctor who had been the subject of a defamatory article suffered depression for which he had to seek medical treatment. The Federal Court of Australia upheld the judge's award which included compensation for damage for the effect on the plaintiff's health. 84.In Sattin v Nationwide News Pty Ltd (Sup Ct of NSW Common Law Division 20229 of 1994), the plaintiff had commenced an action in defamation against a newspaper. She then sought leave to amend her claim to include a claim in negligence for personal injury. It was held that there was no duty of care on the newspaper publisher not to publish false matter so that the claim in negligence failed, and her claim in negligence was disallowed. However she was given leave to amend her claim in defamation to include the claim for personal injury. 85.In my view, damages for defamation are intended primarily to be compensatory. Thus, even though there may be no evidence of actual hurt to a plaintiff's feelings, the law presumes that a plaintiff would be distressed by defamatory words published of him and allows general damages to be awarded. 86.Where hurt to the plaintiff in fact takes form (e.g. in emotional stress or psychiatric illness), it would be irrational and illogical that the law, which seeks to compensate a plaintiff when presuming him to be distressed, would not compensate a plaintiff who actually suffers substantial hurt caused by the same act, so long as the form of hurt can be proved to flow naturally and directly from the tortious act of defamation. 87.I can see no policy reason against awarding damages for mental or physical injury which is proved to flow naturally and directly from the defamation. The plaintiff would be the primary victim of the tort. In negligence cases, a primary victim can recover for the physical effects of shock. In Page v Smith, supra. the plaintiff was awarded damages for a miscarriage brought about by nervous shock. The situation should be a fortiori for an action for defamation. There is a more direct relation between the plaintiff and the defendant. The plaintiff has to prove that the defamation referred to him, so there is all the more reason that the defendant should take the victim as he finds him and should compensate the plaintiff for injury of whatever nature which is proved to flow naturally and directly from the defamation. 88.Further, since a publisher of mass media has no duty of care to the subjects of its articles, thereby rendering a claim in negligence impossible, it would be unjust if the victim who suffers injury would also be left without remedy in an action for defamation. 89.I would hold therefore that in law, a plaintiff in an action for defamation can recover damages for injury to body and mind which is proved to flow naturally and directly from the defamation. (2) Depression and pre-term delivery caused by the defamation 90.I then turn to the facts of this case to see what was suffered by the Plaintiff and whether that was the natural and direct result of the defamation. 91.The Plaintiff suffered depression and delivered the child she was carrying before term. The two psychiatrists who testified at the trial are agreed that she did suffer actual distress in the form of depression. It is also not disputed that she delivered her child pre-term. The dispute is as to the cause of the depression and pre-term delivery. Depression 92.I shall deal first with her condition of depression, which Dr K. Singer, the Defendants' expert psychiatrist, defined as a person's emotional response to external events such as the article. 93.By way of background, the Plaintiff had no previous history of depression or other form of psychiatric illness, nor was there any family history of such. 94.Unfortunately however the Plaintiff happens to be of a timid disposition. Her reaction when she saw the article was to think that someone was plotting with the newspaper to harm her, and to force her out of business in Yuen Long. 95.On 7 October 1998, she was so frightened that she could not bring herself to go to her office, when a person of a bolder temperament may well have done so. It was the Plaintiff's husband who inserted advertisements in other newspapers to deny the truth of the article and who instructed solicitors to send a letter before action. The Plaintiff did not in fact even contact her assistant solicitor, she said she could only stay at home constantly calling her husband on the telephone. 96.The apology the next day brought her little relief. She likened it to having had her hands chopped off, followed by the assailant saying sorry. She remained frightened and worried about who would have set out to harm her, because there was no explanation from the Defendants (whether in the apology or otherwise) for naming her in the article. 97.The Plaintiff testified about the nightmares she suffered of being bitten by cats and falling from a height. According to Dr Chan Chung Mau, who has been treating her since October 1998, these are consistent with a feeling of persecution and misfortune. The Plaintiff did not leave her house because she felt she could not face people and even at home, was so incapacitated that her daughter had to sent away to be cared for by her husband's relatives. 98.When the Plaintiff was admitted to hospital for medical treatment on 27 October 1998, her gynaecologist Dr Belinda Leung found the Plaintiff emotionally unstable and her mental condition was such that Dr Leung recommended psychiatric treatment. 99.During her two and a half weeks in hospital, the Plaintiff did not want visits from family and friends because of her poor mental state. Although she was given psychotherapy by Dr Chan, he was hampered in the administration of anti-depressive and hypnotic drugs because of fears of their effect on the unborn child. 100.The Plaintiff's depressive state did not improve with the birth of her child, notwithstanding the fact that it was a planned pregnancy. She was scared of the child because it was very small and Dr Chan recorded that she had ambivalent feelings towards the child. 101.Her depressive state was aggravated because of the stresses caused by the child's state of health. He weighed only 1 kg at birth, had to be put on a ventilator, and suffered a dramatic deterioration 4 days after birth. He had respiratory difficulties and had to have a blood transfusion 3 days later. Surgery had to be performed on his lungs and later his heart. His critical condition and decisions required of his parents caused the Plaintiff further distress. He is also said to be developmentally delayed. 102.When the Plaintiff herself was discharged from hospital a few days after birth, the baby had to be kept in intensive care. The Plaintiff stayed in a room at her sister-in-law's house because she felt hapless. She was unable to sleep at night, and had no energy during the day. She did not take drugs to help her condition as she was breast-feeding. 103.Psychologically, she suffered depression, anxiety, irritability, lack of drive and impaired concentration. Physically, she suffered insomnia, a poor appetite, indigestion and headaches. 104.She was unable to return to work until after the baby's discharge and when Dr Chan managed to persuade her to attempt to work for half a day. At first she was not up to it, but gradually improved. 105.Evidence was given by Dr Chan and by Dr Singer. Dr Chan said that the Plaintiff suffered moderate to severe depressive illness, starting at a moderate degree, deteriorating to severe by reason of her anxiety over the pre-term delivery and condition of the baby, and returning to moderate after the child's condition improved. Dr Singer considered that the Plaintiff started with a mild degree, but agreed to the course of the illness. 106.It is in my view clear that the depressive illness was caused by the defamation. Dr Chan said that the Plaintiff showed marked hostility, irritability and anger towards the Apple Daily throughout her stay in hospital. That was within the expected range of reactions. I accept his evidence that the Plaintiff's depression was aggravated by the pre-term delivery and the child's condition, which would be natural in any parent. 107.Although Dr Singer's evidence was that he would have expected the initial shock to have come immediately after the publication, he accepted in cross-examination that the gravity of what had happened might take a few days to be absorbed. Further, his opinion that the Plaintiff's depressive illness would only have been mild was based on his assumption that she had coped, as shown by the insertion of announcements in other newspapers denying the article. When informed in cross-examination that they had been inserted by her husband, Dr Singer accepted that that would affect his conclusion. 108.It is clear that Dr Singer assumed that the Plaintiff's depression should have subsided in a few days with the apology and that her condition thereafter was due to her anxiety about the child. However, the evidence is clear that the Plaintiff did not in fact consider the threat to her to have subsided, because she still did not know how it came about that she (amongst the solicitors in Yuen Long) was named in the article. 109.Dr Chan's notes showed that the Plaintiff was concerned about the article and the consequential litigation well after the publication. He noted that on 9 November 1998, the Plaintiff's mental condition was slightly worse when she recalled her "legal matters". On 14 November 1998, he noted that the Plaintiff was also "bothered" by legal proceedings arising from the defamation. 110.Dr Singer's theory that the Plaintiff may have been depressed because of a downturn in business was not substantiated. The Plaintiff had gone on a resort holiday at Easter with her husband and daughter. She had taken on a new assistant solicitor to help with the work at her firm. Dr Chan said that at no time did she mention any financial stress or downturn in business from the time he started treating her in October 1998 to trial. 111.As for Dr Singer's opinion that the depression was caused by the way the pregnancy was going, I accept Dr Chan's evidence that anxiety for the unborn child was a natural reaction. The Plaintiff felt persecuted when the article was published. In that state, she would be concerned about the thing most precious to her, and the unborn child would be regarded as particularly vulnerable. 112.I find therefore that the depressive illness suffered by the Plaintiff was a natural and direct cause of the tortious act of defamation. Her condition in and the course of the pregnancy and the child's condition after birth aggravated the illness, but they were not supervening acts. Further, as will be seen below, the pre-term delivery was in turn caused by stress arising from the defamation. Pre-term delivery 113.The issue is whether the Plaintiff's pre-term delivery was caused by the stress she suffered as a result of the article. It need not be the sole cause, it need only materially contribute to its occurrence (McGhee v National Coal Board [1973] 1 WLR 1, at 11). 114.Evidence was called from Dr Leung, Dr Terence Lao (associate professor of the Department of Obstetrics and Gynaecology at the University of Hong Kong who specializes in complicated pregnancies), Dr JF Despaquale (an experienced gynaecologist but who is not an expert in complicated pregnancies as Dr Leung and Dr Lao are), and to a small extent Dr Singer (who does not specialize in this area of medicine). 115.The evidence of Dr Leung, who attended the Plaintiff, made it clear to me that the stress suffered by the Plaintiff materially contributed to the pre-term delivery. Dr Leung is highly experienced and has particular expertise in difficult pregnancies. She specialized in high-risk pregnancies whilst working as a consultant at Princess Margaret Hospital for 5 years, and since entering private practice, has been appointed the expert from the private sector on the Hospital Authority's expert panel on Obstetrical and Gynaecological Incidence. As an expert in the area, and as attending physician, she was in the best position to speak on the Plaintiff's condition. 116.Dr Leung pointed out that since the Plaintiff did not suffer from any infections, congenital abnormalities, history of pre-term deliveries and had previously only had one miscarriage in the first trimester, that left only (a) a haematoma and (b) stress as the cause of the pre-term delivery. 117.As far as the haematoma was concerned, I find (after considering the doctors' evidence and materials relied upon) that was not likely the cause of the pre-term delivery. Since Dr Leung discovered the haematoma on 29 August 1998, she had specifically monitored the haematoma with ultrasound on every visit of the Plaintiff. The ultrasound measurements showed that the haematoma had reduced on each visit. Moreover, the haematoma had no effect on the placenta. 118.Further, the greatest impact of a haematoma was within the first 2 weeks of its formation. Here there were some 11 weeks between the formation of the haematoma and the pre-term delivery. 119.Dr Leung's opinion that a haematoma with vaginal bleeding did not significantly increase the chance of pre-term delivery was supported by Table III in the article "The clinical significance of ultrasonographically detected subchorionic haemorrhages". 120.Dr Leung's opinion that the haematoma was not likely to have been the cause of the pre-term delivery was supported by Dr Lao who regarded as significant the long interval between the formation of the haematoma and the pre-term delivery, especially when the placental function was not affected. 121.Dr Despaquale's opinion that damage may have been done by the haematoma notwithstanding the reduction in size and lengthy interval was not agreed by Dr Leung and Dr Lao, who possess greater experience and expertise in this area. 122.All these three doctors were however agreed that stress had a part to play in the pre-term delivery. Dr Leung referred to a study showing that pregnant women who considered they were suffering from stress were more likely to have pre-term delivery. Dr Lao referred to a study showing that especially for pre-term delivery between 16 weeks and 30 weeks of gestation (which is this case), the greater the perceived stress, the higher the odds of pre-term delivery. Pregnant women who were stressed had 1.76 times the chance of pre-term delivery. It would appear that stress may lead to uterine contractions, not bleeding. Dr Despaquale accepted that stress probably played a role in the pre-term delivery. 123.As discussed above, a defendant must take the plaintiff as he finds her. Where a defamatory article causes stress to a pregnant woman, when her condition is particularly sensitive to stress, the defendant must be liable for the natural and direct consequence of the stress including pre-term delivery. In the light of the evidence above, I find that the article did cause the Plaintiff depression, anxiety and stress and that the stress materially contributed to pre-term delivery. (3) No aggravated damages 124.The Plaintiff claimed aggravated damages. It is clear law that aggravated damages are still compensatory in nature. Factors to be considered include the Defendants' conduct. I have found no evidence of malice in this case. Although the pleaded Defence contained some issues which were not abandoned until trial, it was clear from the apology the next day that those defences could not really be sustained. Although on one or two occasions, cross-examination of the Plaintiff was unsympathetic, it was not such as to have caused greater distress. 125.I hold therefore that no aggravated damages should be awarded. (4) No exemplary damages 126.As for exemplary damages, the test is to be found in John v MGN at 616, quoting certain passages in Duncan and Neill on Defamation with approval. To make a defendant liable for exemplary damages, he would have had to know that or be reckless whether he was committing a tort, and have had decided to publish because the material advantages from publication outweighed the prospects of material loss. 127.I am not persuaded that the Defendants had gone so far. Cheng had been grossly negligent but not to the extent of recklessness (that there is a difference between these two standards was recognized in John v MGN at 623). 128.When Cheng checked out the premises on the 2nd Floor and the 5th Floor, he found only the Plaintiff's firm. There was nothing there that would have caused him to suspect that the "sting" contents of the article to be untrue. He did not deliberately refrain from turning any suspicion of untruth into a certainty (John v MGN at 618). 129.The mere fact that a newspaper is published for profit is not by itself enough to justify exemplary damages (John v MGN at 619). 130.Further, given the award of general damages in this case, I consider that compensatory damages would be adequate and that exemplary damages would not be called for. (5) Effect of s.5-6 of the Civil Liability (Contribution) Ordinance cap. 377 on the Common Law rule on joint tortfeasors as held in Broome v Cassell 131.Here I should as a matter of completeness set out my views on the impact of s.5-6 of the Civil Liability (Contribution) Ordinance cap. 377 on the Common Law rule on joint tortfeasors. 132.If I had found that exemplary damages were justified, they would only have been justified against the publisher and the editor (the 1st and 3rd Defendants respectively), but not the printer (the 2nd Defendant). This is because it has been the law since Rookes v Barnard [1964] AC 1129 that exemplary damages were punitive in nature, and are meant to reflect the guilt of the particular defendant. There was no evidence of any conduct on the part of the printer that would have justified an award of punitive damages (as was recognized by the House of Lords in Broome v Cassell at 1090, that would not be unusual where author, publisher and printer are sued in the same action for the same libel). 133.The issue then would have been whether this has any significance when the Defendants have been sued as joint tortfeasors in the same action. 134.In Broome v Cassell, the House of Lords held that since at Common Law, only one sum may be awarded in a single proceeding for a joint tort, the award of exemplary damages would have to be the lowest common award among all defendants. 135.However, the decision in Broome v Cassell must be subject to doubt in light of the decisions of the Judicial Committee of the Privy Council in Wah Tat Bank Ltd v Chan Cheng Kum [1975] AC 507 and of the High Court of Australia in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] 57 ALR 639, and s.5-6 Civil Liability (Contribution) Ordinance cap. 377. 136.In Wah Tat, the Privy Council (including 3 of the 7 law lords who decided Broome v Cassell) accepted that the attention of the House of Lords had not been directed to s.6(1) Law Reform (Married Women and Tortfeasors) Act 1935. 137.Section 6(1) Law Reform (Married Women and Tortfeasors) Act 1935. provided briefly, that judgment recovered against any tortfeasor shall not be a bar to an action against any other person liable as a joint tortfeasor. 138.Section 11(1) Civil Law Act (Singapore) was identical to s.6(1) of the English Act. The Privy Council held that when construed truly, those sections abolished in its entirety the Common Law rule that a victim of a tort committed by joint tortfeasors was deemed to have only one cause of action. 139.Although Wah Tat was not a case of exemplary damages, Lord Salmon (giving the judgment of the Privy Council) recognized that it was "arguable" that where punitive damages may be awarded, different sums of damage could be awarded against different joint tortfeasors in respect of the same tort. 140.In XL Petroleum, that very situation occurred. There was a joint tort of trespass. The judge awarded common compensatory damages but awarded exemplary damages against Caltex only. The High Court of Australia upheld that approach. It held that the consequence of s.5(1) Law Reform (Miscellaneous Provisions) Act 1946 (NSW), which was based on s.6(1) of the English Act, was that separate judgments, differing in amounts, may be recovered on the same occasion against co-defendant joint tortfeasors, so that whilst compensatory damages were the same, punitive damages may separately reflect the individual tortfeasor's measure of guilt. 141.The High Court of Australia held that the statutory provisions severed the unity of the cause of action against joint tortfeasors. Once separate judgments may be given against joint tortfeasors for damages caused by the same tort, there could remain no foundation for the rule that only one sum could be awarded by different judgments. The effect was, as Brennan J put it, that "a plaintiff now has as many causes of action as there are joint tortfeasors" (at 651). 142.In Hong Kong, the situation is governed by provisions in the Civil Liability (Contribution) Ordinance cap. 377. Section 5 provides that "judgment obtained against any person liable in respect of any debt or damage shall not be a bar to an action, or to the continuation of an action, against any other person who is (apart from any such bar) jointly liable with him in respect of the same debt or damage". 143.Section 6 provides that "if more than one action is brought in respect of any damage by or on behalf of the person by whom it was suffered against persons liable in respect of the damage (whether jointly or otherwise) the Plaintiff shall not be entitled to costs in any of those actions, other than that in which judgment is first given, unless the court is of the opinion that there was reasonable ground for bringing the action". 144.These are identical to s. 3-4 of the Civil Liability Contribution Act 1978. Section 5 of the Ordinance clearly severs the unity of the cause of action against joint liabilities. It goes further than s.6(1) of the 1935 Act in that it applies to other legal wrongs and is not confined to torts. 145.Further, s.6 of the Ordinance omits references to the aggregate damages recoverable not exceeding the first award of damages and so does not prevent the judgment creditor from receiving a later award which is greater than an earlier award. 146.It is therefore clear that the legislature has recognized the injustice to a plaintiff caused by the Common Law rule of only one cause of action against joint liabilities, and has amended the law to avoid the injustices caused by that rule. The House of Lords decision in Broome v Cassell was a manifestation of the Common Law rule, which caused injustice to a plaintiff who would otherwise have been entitled to exemplary damages against 1 tortfeasor. Therefore, unless the language of the amending legislation allows no other construction, one should not read it in such a way as to allow any such remnant application of the Common Law rule. 147.I do not read s.2(3) of the Ordinance, which provides that "a person is liable in respect of any damages for the purpose of this Ordinance if the person who suffered it is entitled to recover compensation from him in respect of that damage (whatever the legal basis of his liability, whether tort, breach of contract, breach of trust or otherwise)" as limiting the effect of s.5-6 of the Ordinance in abolishing the Common Law rule (as stated above) to cases involving compensatory damages only. If that were the intention of the legislature, one would have expected far clearer language to be used in s.5 itself. As I read it, s.2(3) simply defines who is "liable in respect of any damages" for the purposes of the Ordinance. That is a person from whom a plaintiff is entitled to recover compensation, as compensation is the "floor" or minimum base of damages. Exemplary damages are built upon or added to compensatory damages, they are not in substitution for compensatory damages. 148.As a matter of completeness, I should record that leading counsel for the Defendants referred the Court to Jameson v Central Electricity Generating Board [1999] 2 WLR 141, [1999] 1 Ll Rep 573, a House of Lords decision which was decided after Wah Tat and XL Petroleum but which did not deal with them. Mr Edward Chan SC submitted that this showed that the House of Lords had declined to adopt the reasoning of the Privy Council in Wah Tat and the High Court of Australia in XL Petroleum. I do not think that can be assumed. Jameson was a case of concurrent torts, i.e. where the tortfeasors were jointly and severally liable, and where there was no claim for exemplary damages. It was not surprising therefore that the House did not consider those decisions which related to joint tortfeasors only. (6) Loss of profits 149.I shall now deal with loss of profits. It is clear that loss of business profits can be recoverable as and absorbed in general damages for loss of reputation. 150.Evidence was called from clients of the Plaintiff. Irrespective of whether actual loss may be proved, their evidence is illustrative of the attitudes taken by clients as a result of the defamation. It was clear that even though individual clients may be sympathetic to the Plaintiff, realistically the further conduct of their business was governed by the attitudes of third parties such as banks. The Plaintiff's evidence was that of the three more active banks in Yuen Long, she received no further business connected with two of them. 151.It has been suggested on behalf of the Plaintiff that the loss of profits element in general damages may be quantified by either the drop in gross income or the drop in profits demonstrated by the figures presented. It is clear that there was a drop in both. 152.However the Court must also take into account the fact that there was a decline in conveyancing work due to the fall of the stock and property markets in Hong Kong starting in the last quarter of 1997. The Plaintiff's firm dealt mainly (between 78% and 94%) in conveyancing. In September 1997, the mandatory scale charge had been effectively abolished and the Plaintiff accepted in cross-examination that this led to discounts of 20-30% in charges for Agreements for Sales and Purchase. Although the Plaintiff's firm did deal in intra-family transactions, they constituted only 10.4% for the calendar year 1996 and 14% for 1997. In the 5 months from May 1998, gross income was declining. 153.Therefore it can be seen that the Plaintiff's firm was affected by general market conditions. However it was not quite as bad as the 86% drop referred to by Mr Ma Ho Fai. For the period between October 1997 and September 1998, the Plaintiff's firm suffered only a 12% drop in costs income compared with the income for the period between October 1996 and September 1997. There was no evidence that the income had been supported by Mr Chan Chee Shing's clients. The Plaintiff's evidence was that he had few clients of his own. 154.More importantly, one can see that for the months after defamation, there was a drastic drop in income for some 5-6 months until the firm resumed a 6-figure income in March 1999. In the absence of any other explanation for this obvious trough, and in the light of the matters discussed above, I find that the difference of about $470,000 in income could be attributable to the effects of the defamation. This is the rounded difference between $743,125 (being the average income since Chan Chee Shing left x 5 months) and the actual income of $273,780. (7) General Damages 155.In considering the right award of general damages, I have considered as particularly relevant the Robert Chan v Hong Kong Standard case. However, the seriousness of the libel here was greater, the circulation is much higher, there was long-lasting psychiatric and actual physical illness and proven loss of business profits. On the other hand, there was an apology here whilst there was none in Robert Chan v Hong Kong Standard. 156.In my view, to console the Plaintiff for the hurt and distress suffered by her, to repair the harm that has been done to her reputation (including her business reputation) and to vindicate her reputation, I would award general damages of $3,000,000. (8) Special Damages 157.Finally there is the issue of special damages. Whilst loss of specific fees from specific cases may be claimed in addition to general damages for loss of business, the Court must be careful to avoid any overlapping (Gatley paragraph 26.32). 158.As it turned out, no substantial specific loss was proved after the thorough cross-examination undertaken by the Defendants' leading counsel. In Lee Yuet Man's case, he had not transferred the work to the Plaintiff's firm for a substantial period before the defamation, and for the Manhattan Heights flats, one transaction had been revoked by the Vendor. At most therefore the only loss was one transaction. In Tang Kam Cheung's case, the extent of fees was speculative as negotiations were still ongoing with Government valuers. In To Chung Shing's case and Man Kwok Cheung's case, the projects have not proceeded. 159.As for the other cases where no clients were called, the evidence was insufficient to prove any loss in 2 cases (971575 and 981703). In 3 cases (971607, 981701, 981687) land searches showed no transactions were done. 160.I would therefore not award any special damages for these loss of profits claimed. 161.As for medical charges, in light of my findings above, it must follow that the Plaintiff is entitled to psychiatric and pre-term delivery-related charges. These amount to $163,842, but after deducting the costs of a normal delivery of $28,800, the award would be $135,042. Future psychiatric treatment charges were assessed at between $34,000 and $50,000. I would award the median figure of $42,000. 162.I do not make any award for medical charges incurred on behalf of the child. This is an action for defamation. Damages would be recoverable for the person defamed. The child is a third party and I cannot see how he can have a cause of action in defamation. As for travelling expenses connected with the child, there was also no satisfactory evidence as to who paid for them. 163.Costs of announcements to deny the defamation were properly incurred in mitigation of damages and I award the entire sum of $30,303. 164.There were no submissions at the hearing on interest and I would give liberty to both parties to restore the hearing for argument unless they can agree on the rate and period of interest. 165.I make an order nisi that the Defendants bear the Plaintiff's costs. 166.It only remains for me to thank counsel for their assistance in this difficult but interesting case.
Representation: Mr Benjamin Yu SC and Mr Anderson Chow (instructed by SK Wong & Lee) for the Plaintiff Mr Edward Chan SC and Mr Hin-lee Wong (instructed by TS Tong & Co) for the Defendants Headline: 涉騙客戶樓款及二按貸款 元朗女律師挾200萬失蹤 First 4 paragraphs: 在元朗開設律師行的一名女律師，懷疑騙取三名客戶的樓款及二按貸款，合共二百多萬元後，然後挾款失蹤，律師會接獲市民投訴後報警，警方現將案列為盜竊及訛騙案處理。 涉案女律師姓蕭，約三十五歲，已婚，九二年執業，在元朗青山公路獨資開設律師樓，接辦樓宇買賣及按揭等法律手續。 元朗分區警署助理指揮官（刑事）陳燦榮總督察稱，上月接獲律師會報稱律師樓突關閉，疑涉刑事罪行。警方其後接觸兩名事主，他們分別報稱曾委託該律師樓辦手續，各自損失百萬元樓款及貸款。 陳燦榮指警方曾到女律師寓所調查，但無法與她接觸，而其律師行亦告停業。另外透過律師會知悉涉案的律師樓其他客戶並無問題，並將代為轉介其他律師行處理。 Caption: 蕭姓女律師位於元朗青山公路的律師樓已空置 Apology: 道歉啟事 本版昨日報導《元朗女律師挾200萬失蹤》一文，本報獲警方證實，警方正急欲會晤一名涉嫌欵失蹤的律師，但非該文所述蕭姓女律師。本報因一時疏忽致有此失誤，特此鄭重聲明，並撤回有關該女律師挾款失蹤的報導及有關「朱蕭菊圓律師行」的相關圖片。該報導及圖片對朱蕭菊圓律師及香港律師會造成不便及尷尬，本報謹此致以萬二分歉意。 蘋果日報編輯部謹啟 |
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