Li Wei v. Brightec Ltd. and Others

HCA004430/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL ACTION NO. HCA4430 OF 2000

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Coram: Master de Souza in Court

Date of Hearing: 12 January 2001

Date of Judgment: 12 January 2001

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J U D G M E N T

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Introduction

1. This is an assessment of damages following the entry of interlocutory judgment in favour of the plaintiff, Mr Li Wei, against the three defendants in an action brought by the plaintiff for damages for libel. Interlocutory judgment was entered on 29 August 2000.

2. Mr Li is and has always been engaged in the financial security services. He has over the years built up a not inconsiderable reputation in the field. It is common ground that someone holding and enjoying such a position would have to earn the trust and confidence from his or her customers.

3. It is plain from the witness statement of Mr Li, which has been adopted as his evidence-in-chief, that he has indeed a most impressive curriculum vitae. I do not propose to set out his experience and qualifications; suffice it to say that since January 1997 he has joined a PRC company in Shenzhen, more particularly known as the Shenzhen Yanning Development Company Limited. He holds a high position in that company. The major part of that company's business involves investment in risk management instruments, shares and bonds, as well as investment in other enterprises and businesses.

Background

4. The 1st Defendant is a limited company incorporated in Hong Kong and is the proprietor and publisher of a Chinese language monthly magazine known as "The Frontline". That magazine has a wide circulation locally. The 2nd Defendant is its editor. The 3rd Defendant is the printer engaged by that magazine.

5. On 1 February 2000, an article was published by the three defendants in The Frontline magazine which I accept and find was plainly libellous of the plaintiff. The details of that defamation have been set out in the Statement of Claim and reference is more particularly made to paragraph 10 which provides a literal translation of the content of that article. It is obvious that the defendants had suggested to members of the public and to all readers that the plaintiff was a corrupt person who had engaged in nefarious activities, including money laundering, to advance his personal wealth. All that, of course, is untrue and has been deeply injurious to the plaintiff.

6. The effect on his reputation among members of his family and friends, business associates and clients has been, not surprisingly, disastrous. Consequent upon that publication, I am satisfied that the business activities at the Shenzhen Yanning Development Company Limited have been deleteriously affected to the extent that projects have been cancelled. The plaintiff's performance has suffered, his business contacts had become wary and he has experienced difficulty in dealings in his chosen field.

7. Following the institution of this suit, the defendants had chosen not to participate. No acknowledgement of service by any of them had been filed. To date, neither of the three defendants has appeared.

8. After the publication of the defamatory article, the plaintiff has made efforts to contact the defendants, seeking a retraction of the article and an apology. This, the defendants have steadfastly refused to do. That, clearly, is an aggravating feature in this case.

9. The fact that the plaintiff's reputation has been seriously affected is a matter which weighs heavily in the scale when it comes to quantification of his loss. He seeks damages under two heads: compensatory damages as well as exemplary damages. In the circumstances, I consider that he is entitled to such claims.

10. I refer to paragraph 1453 of Gatley's Libel and Slander, 9th edition, which states that:

"Compensatory damages may include not only actual pecuniary loss or any social disadvantages which result or may be thought likely to result from the wrong which has been done. They may also include a natural injury to his feelings."

11. A useful guide to the present exercise has been succinctly summarised in the case of Tang Chui-yuk, Angela Fok Hung Kwong-wah, Emma v Hung Ka-chuen & others, HCA 1424 of 1997, a decision of Chung J, dated 28 January 2000 . The judgment which has been provided to me is unpaginated, but the relevant quote appears on what appears to be the fourth page of the judgment:

"The underlying principle for awarding damages in defamation was set out in the Hong Yuen-chan Robert case:

'Damages

(a) General Principles:

The objective is 'to restore the plaintiff as far as money can do to the position he would have been in if the tort had not been committed.' See Duncan and Neill, Defamation, op cit para. 18.04. Where there has been no retraction or apology [as in this case] an order for damages is the only solatium available to the plaintiff. [parenthesis mine]

In the recent Court of Appeal decision in Chan Ng-sheong, Steven v Eastweek Publisher Limited [1995] 3 HKC 601, it had to consider the question of damages for libel. It accepted (at p. 613 D to F) the submission that:

...damages for libel must provide for several disparate elements, not only damages to esteem and reputation. They also must be sufficient to publicly and demonstratively and absolutely vindicate the plaintiff and to compensate for seriously injured feelings (Yu Kwong-chu v Consolidated Newspapers Limited (A258/1986, unreported) at p. 30, 'not only caused by the original libel but all subsequent aggravation thereof down to the verdict, which would restore the plaintiff's pride and confidence' (McCarey v Associated Newspapers Limited ((No. 2) [1964] 3 All ER, 947 at 958) They must enable the plaintiff to convince a bystander the baselessness of the charge if 'the libel driven underground emerges from its lurking place at some future time' (Cassell & Co v Broome [1972] 1 All ER 801)... (at 533, per Le Pechon J.)"

12. By suggesting that the plaintiff was corrupt, dishonest and had resorted to illegal and improper means to advance his own fortunes and had engaged in money laundering activities, in my view the plaintiff must necessarily have been exposed to public scandal, odium and contempt. As I have observed, there was no basis or foundation for any or all of these allegations raised against him in that scandalous article.

13. I am satisfied to find that the defendants have acted in an outrageous and scandalous manner and their refusal, as I have observed, to retract the article or to offer an apology to the plaintiff when demanded had aggravated the injury that he has suffered.

14. A number of decisions have been brought to my attention by counsel for the plaintiff. Each case must necessarily turn on its own facts and the damages awarded in other cases may not necessarily be in point. The principles relied on in those cases I have read are no doubt useful. Counsel contends that a substantial award of between $150,000 to $200,000 would be appropriate. I concur that the damages that I should quantify as his loss should fall within that range.

15. Bearing all the matters that I have referred to in mind, I opine that an award of $150,000 would be sufficient to compensate the plaintiff, both by way of compensatory and exemplary damages. That is the award I adjudge to be right and proper in this case.

16. It is therefore ordered that the plaintiff shall have judgment in the sum of $150,000 against the three defendants.

17. He shall also have his costs of this assessment with certificate for counsel.

Representation:

Mr Wilson Lau, instructed by Messrs Livasiri & Co., for the Plaintiff

D1 - D3, in person, all absent