Wong Ming Chun t/a Tai Tak School v. Au Yeung Pak Chuen and Others
Read the full judgment text of HCA 1350/1967 on BabelCite. This High Court CFI judgment was delivered on 22 March 1968.
1. On 5th August, 1967, a party of European and Chinese police officers in plain clothes, acting under the authority of a search warrant, raided a school called the Tai Tak School at 105-107 Jaffe Road. No arrests were made, and nothing was seized. The school was on vacation and only one male and one female, employees of the school, were on the premises at the time.
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HCA001350/1967
IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION -----------------
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IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION -----------------
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IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION -----------------
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IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION -----------------
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IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION -----------------
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IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION -----------------
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IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION -----------------
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IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION -----------------
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IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION -----------------
----------------- (Consolidated pursuant to Order dated the 20th December, 1967) Coram: Blair-Kerr, J. Date of Judgment: 22 March 1968 ------------------- JUDGEMENT ------------------- 1. On 5th August, 1967, a party of European and Chinese police officers in plain clothes, acting under the authority of a search warrant, raided a school called the Tai Tak School at 105-107 Jaffe Road. No arrests were made, and nothing was seized. The school was on vacation and only one male and one female, employees of the school, were on the premises at the time. 2. News of the raid reached the offices of the Kung Sheung Daily News; and a staff reporter from this newspaper (Mr. Leung Yu-shing) together with a reporter from one other newspaper, proceeded to the scene. The reporters saw certain of the police officers holding rusty iron pipes in their hands; but they were unable to obtain any information from the police party. They returned to the offices of their newspapers. Mr. Leung said in evidence that he left a note on the desk of the chief reporter to the effect that some pipes had been found in the school and that he had heard that some people had been arrested. The two reporters then communicated with colleagues on the staff of seven other newspapers. The result was that on the afternoon of the 5th August, the Wan Kiu Man Pao published a report of the raid; and a further nine reports appeared next morning in the following newspapers :-
3. A translation of the report which appeared in the Wah Kiu Man Pao on the afternoon of 5th August reads :-
The reports appearing in the other newspapers were in substantially the same terms, except that in the Kung Sheung Daily News, Express News, and Hong Kong Daily News, there was no allegation that Tai Tak School was a "leftist" school. 4. Between the 25th and 29th August, the plaintiff's solicitors wrote a letter to the editor of each newspaper, as follows :-
The letter went on to say that these allegedly untrue statements had seriously damaged "our client's character and reputation and has brought the school into public scandal and contempt." It demanded that the paper publish a correction together with an apology in a form to be approved. 5. There was no reply to any of the letters; and writs against the editor, proprietor, publisher and printer of each newspaper issued on 19th September. The nine actions have been consolidated. 6. On the writ and statement of claim, the name of the plaintiff was given as "Tai Tak School"; and, before opening his case, counsel applied for an amendment to the title of the writ and subsequent documents so that the name of the plaintiff would read : "Wong Ming-chun trading as Tai Tak School". It was not in dispute that on the 4th October 1967 (i.e. after the issue of the writ) Wong Ming-chun had registered the Tai Tak School as a "one-man" business under the Business Registration Regulations; and it was admitted that she was registered under the Education Ordinance as manager and supervisor of the school. 7. The application, however, was strongly opposed by counsel for the defendants who submitted that since O.81 r.1 did not authorize a sole proprietorship to commence proceedings in the firm name, the writ and all subsequent proceedings were a nullity which was not cured by the fact that the defendants had entered an unconditional appearance and had filed their statement of defence; that The Holland Pacific Trading Co. v. Fung Tong(1) and Nam Hoi Shoes Factory v. Empire Trading Co. (H.K.) Ltd.(2) were wrongly decided; that the situation was analogous to cases in which an action has been commenced in the name of a man who is dead, or an administrator commences an action in his capacity as administrator before the grant of letters of administration; and that I should follow the decision in Manson v. Mogridge(3). 8. Counsel for the plaintiff submitted that the defect in the name of the plaintiff was an irregularity which could be cured by amendment; and he cited Western National Bank of the City of New York v. Verez(4) and The Assunta(5). 9. It is surprising that a matter of this kind had not been corrected before the action was set down for trial; and it was with some hesitation that I permitted the amendment sought. I took the view that it was an irregularity curable by amendment. In Tetlow v. Orela(6), the situation was rather different. That was a case in which an action was commenced in the name of a dead man as plaintiff; and the case of an administrator commencing an action as administrator before the grant of letters of administration did not seem to me to be on all fours with this case. As the Chief Justice said in Holland Pacific Trading Co.(1) :-
10. However, it was only the name of the plaintiff which was amended. No amendment was sought to the phraseology used in the statements of claim, wherein it is alleged that "the plaintiff is a firm running a school" and that one Wong Ming-chun is the "sole proprietress of the plaintiff firm". 11. In each statement of claim the newspaper article is set out in full; and, in the succeeding paragraph, specific reference is made to three matters, namely :-
Each statement of claim then proceeds to plead various innuendos as follows :-
The next paragraph of the statement of claim reads :-
12. The defendants say that they made a bona fide mistake in alleging that the police found sharpened iron bars and inflammatory posters in the school and had arrested two members of the staff; but they say that these words are not libellous in their ordinary and natural meaning and that they are incapable of bearing any of the meanings alleged in the statement of claim. As regards the allegation that Tai Tak School is a leftist school they say that this is true in substance and in fact. 13. The first question to be decided as a matter of law is whether any or all of the statements to which exception has been taken are capable of having a libellous meaning. Taking the words in their ordinary and natural meaning, I am quite unable to see how it could be said to be defamatory of a person to say, falsely, that he was in possession of sharpened iron bars. On the other hand, to allege falsely, that a person was in possession of inflammatory posters, is clearly defamatory because by reg. 5 of the Emergency (Prevention of Inflammatory Posters) Regulations 1967 (enacted on 1st June 1967), it was made a criminal offence to be in possession of inflammatory posters. 14. The word "leftist" does not appear to be defined in any of the standard dictionaries; but it seems to be a word which is descriptive of a person of left-wing political persuasion; and no court would rule that, in its ordinary and natural meaning, this word could be libellous. "Leftist school" is an expression to which it is perhaps more difficult to assign a meaning. I think one has to realise that in Hong Kong, "Left" and "right" are words commonly used to describe many organizations. To take trade unions as an example. No doubt the original intention was that these organizations would play the same part in the life of the community in Hong Kong as similar organizations do in the life of the community in England. It was certainly never the intention that they should allow politics to dominate their activities; but anyone who has lived in Hong Kong for any length of time is familiar with the expressions "left-wing union" and "right-wing union"; and ordinarily it would not be derogatory of a person to say that he is a member of one or other type of union. 15. To say that a school is a "leftist school" certainly implies that a good proportion at least of the teachers and others in the school are persons of left-wing political persuasion, and that they, and their pupils, show their left-wing sympathies either by the singing of communist songs or otherwise. Taking the words in their ordinary meaning, I am quite unable to see how it can be said to be defamatory of those in control of the running of a school to allege falsely that the school is a "leftist school". 16. However, the plaintiff is clearly relying very heavily on the innuendos pleaded. She is alleging that in August 1967 the ordinary reader of these articles might well have concluded that the references to the school were tantamount to references to her and that she and the school" were :-
Her counsel emphasized that, in performing my function, as judge and jury, I should endeavour to put myself in what he described as "the position of an ordinary right-minded citizen of Hong Kong in 1967". 17. Counsel for the defendants submitted that all the innuendos are what Lord Devlin in Lewis v. Daily Telegraph Ltd.(7) called legal innuendos which require to be supported by particulars in accordance with O.82 r.3(1) which reads :-
Counsel for the plaintiff submitted that in August 1967 the ordinary "right-minded citizen" of Hong Kong regarded all "leftists" as persons whose avowed object was to disrupt the whole fabric of this society, and its Government, by calling strikes, rioting, planting bombs, causing race hatred and violence by posting up inflammatory posters, provoking and resisting the police with various sorts of weapons, and so on; that if the court put itself in the position of the "ordinary right-minded citizen" in August 1967, no difficulty would arise; that the court would then be able "to read between the lines" (counsel's words); and that it was quite unnecessary for the plaintiff to plead particulars, and prove them by evidence, in order to show the court that although the word "leftist" ordinarily could not have a libellous meaning, in August 1967 it was not only capable of having a libellous meaning but it was in fact libellous in this case. 18. In libel actions involving innuendos, it is sometimes difficult to decide where the dividing line falls between notorious facts the existence of which the judge and jury should take cognizance and matters which ought to be pleaded and proved. Presumably, the plaintiff wishes me to take judicial notice of the fact that during the period May/November 1967 riots and strikes occurred in Hong Kong; that agitators posted up inflammatory posters exhorting people to violence and race-hatred; that the police raided the premises of various trade unions and schools; that, on a number of occasions, they found inflammatory posters and weapons of various kinds; that this campaign of violence was planned and directed by a left-wing organization called "The Hong Kong and Kowloon All Circle Compatriot Anti-Hong Kong British Persecution Struggle Committee"; that there were left-wing demonstrations in the streets; and that there was mass reciting from communist writings and singing of communist songs both in the streets and in certain schools. 19. Assuming that what I have stated is accurate, the difficulty about taking judicial cognizance of such matters is: why should I stop there? For example, it was put to the plaintiff in cross-examination that Jaffe Road was one of the worst trouble-spots during the whole period of the riots. She denied this; but do I accept her denial or do I use my own knowledge of events which occurred in Jaffe Road during the period May/November 1967? The proposition has only to be stated in this way to demonstrate the inherent dangers of deciding cases on matters not before the court. 20. In my view the plaintiff's pleadings are in a most unsatisfactory state. Indeed one would have expected that an attempt would have been made to put them in order before the case was set down for trial. If she intended this court to find that the ordinary Hong Kong citizen might well have understood the defendants' articles in the sense alleged by her, it was her duty to plead particulars and call evidence in support. As Lord Devlin said in Lewis(7) :-
21. She has not pleaded particulars in support of her innuendos; and without evidence, I am not prepared to rule that in August 1967 it was libellous of those responsible for the running of a school to allege falsely that it was a "leftist school". 22. In the time of Charles II it was actionable to call a person a Papist and to say that he went to Mass. But that was during a period in English history when there was a considerable body of legislation directed against persons professing the Roman Catholic faith. There is nothing in our legislation which could conceivably be said to be directed against any person professing to be a "leftist" or a communist. The object of all emergency legislation passed in 1967 was to maintain and strengthen the rule of law. It is one thing to say that those who sought to break the rule of law and create chaos were persons of left-wing political persuasion. It is quite another to say, without evidence, that all persons of left-wing political persuasion in Hong Kong in August 1967 were shunned by reasonable law-abiding people. The persons who started the riots in 1956 were persons belonging to right-wing labour unions; but no one, either then or since, has suggested that it is libellous to call a person a "rightist". Counsel for the plaintiff agreed that two years ago it would not have been libellous to refer to a person as a leftist. When is it to be said that "leftists" shall have recovered their status of respectability? 23. Of course, the ordinary person reading a report in a newspaper does not single out words and phrases. He reads the report as a whole; and although it could not have been libellous in August 1967 to say of a person that he was a "leftist", if at the same time it was also said of this person that he was in possession of "sharpened iron bars" and "inflammatory posters" and that he had been arrested and taken to the police station for interrogation, these allegations, read together as a whole, would clearly be capable of having a libellous meaning. 24. However, in this case the question is : who was libelled? Counsel for the defendants very properly pointed out that, with the possible exception of an action for breach of promise of marriage, a libel action is probably the most "personal" of all judicial proceedings. Counsel did not contend that it was not possible in law to libel a firm; but his submission was that when this did occur it was usually a case of slander of title or slander of goods - and no question of that arose in this case. Counsel pointed out that Wong Ming-chun's name does not appear anywhere in any of the articles; and he submitted that although this lady apparently owns the building 105/107 Jaffe Road, and that she gave her name for the purpose of complying with the Business Registration Regulations and the Education Ordinance, it did not follow that she had been libelled; that a school was in a very different position from an ordinary one-man business; that it consisted of pupils, teachers and staff; and that to libel a school was much more akin to libelling a class of persons than to libelling a person carrying on a "one-man" business. From the evidence, such as it is, it appears that the Tai Tak School has been in existence since 1947. Until his death in 1964, one Wong King-sung was registered under the Education Ordinance as manager and supervisor. His daughter, Wong Ming-chun, said in evidence that she was a permitted teacher, that she now owned the premises 105-107 Jaffe Road, and that she had been living there for the last 20 years. There is no doubt that in May 1965 her solicitors notified the Director of Education that upon the death of her father she had taken over as manager and supervisor and that she is registered as such in the Education Department. As I have said, on 4th October 1967 (i.e., after the commencement of these proceedings) she registered the school as a business under the Business Registration Ordinance. 25. The defendants called a woman (Cheung Yuk) who lived and worked in a building opposite the Tai Tak School. She said that this school celebrated the national day of the People's Republic of China on 1st October 1965 and 1st October 1966, that flags with stars on them were flown; and that she heard the students reading books and singing songs. She also said photos were hung up in the classrooms; and, when she was shown a photo of Mr. Mao Tse Tung, she said that the photos in the classrooms looked like that photo. 26. The defendants also called another witness (Wong Koon-kam) who said that he was working in Jaffe Road in 1965, that he remembered the Tai Tak School celebrating on 1st October 1965; that there was mass singing going on and that the songs sung included "The East is Red" and "Flower Blossom of 5-star Flag"; that he also saw one large 5-star red flag and several small flags flying from the first floor of the building; and that there was, and still is, a red banner flying from the first floor inviting students to enrol in the school. 27. These witnesses appeared on sub-poena. They gave me the impression that they did not wish to get involved in answering questions in court. The woman (Cheung Yuk) seemed to have made up her mind that she would come as near as possible to identifying Mr. Mao Tse Tung's photo, without actually doing so. But I had no reason to think that she or Wong intended to mislead the court. In fact, Wong Koon-kam was a very reliable witness. 28. The defendants also called Mr. POON Yau Cheong who is a director of the Industrial and Commercial Daily Press, Ltd., and chief editor of the Kung Sheung Daily News. He said that during the disturbances in 1967 the police put up barricades at the entrances to part of Jaffe Road and that only police vehicles were allowed to enter. 29. WONG Ming Chun said that no celebrations took place in the school either on 1st October or on 10th October. When she was asked specifically whether Communist songs were ever sung in the school, her answers were anything but convincing. My note of some of her answers in cross-examination reads :-
and, in re-examination, she said :-
30. I accepted the evidence of Cheung Yuk and Wong Koon Kam that Communist flags were flown from, and Communist songs were sung in, the Tai Tak School on 1st October in the years 1965 and 1966. 31. Wong Ming Chun's attention was drawn to a book which purported to be "compiled and printed by the Hong Kong & Kowloon All Circle Compatriot Anti-Hong Kong British Persecution Struggle Committee Edition of November 1967." This book contains what the authors describe as a "classified statistical table of our patriotic units attacked and robbed by the Hong Kong British during the period from May to October 1967."; and at p.140 there is an entry which reads : "Tai Tak School 5th August". She was also shown a copy of the Wen Wei Pao for 21st September 1967, in which there appears what purports to be a letter to the editor signed "Tai Tak School Red Combat Corps" in which the authors, inter alia, mention the raid on the school on 5th August. She was also shown a copy of the Wen Wei Pao for 26th September 1967 in which there is an article which begins thus :-
32. Statements in those publications cannot be taken as evidence of any facts alleged in them. Nevertheless, accepting, as I do, the evidence of Cheung Yuk and Wong Koon Kam, and having regard to the answers given by Wong Ming Chun and her demeanour in the witness-box, I am satisfied that, during the period 1965/66, some of the teachers and pupils demonstrated their left-wing sympathies to such an extent that it was not unreasonable to refer to the school as a leftist school. There was no evidence that the school had ever celebrated the 10th October; and I did not accept Wong Ming Chun's evidence that the school never celebrated either of the two national days, nor did I accept her evidence that she knew nothing about the left-wing celebrations on the 1st October. 33. She alleged that since the police raid fewer pupils have sought to be enrolled. She said that during the last term prior to August 1967 there were 140 pupils, that in September 1967 there were between 110 and 120 pupils and that there are now 96. In cross-examination, she was asked if she could substantiate these figures by any reliable records in the school. She then produced two small exercise books which purported to show the names of all the pupils in the school during the two terms of the academic year 1966/67, and for the first part of the academic year 1967/68. These books were not written up by her. At first she said that they were written up by a clerk. Then she said that they were written up by an assistant teacher named Lee Kin Wah, who, she said, had left the school in January 1968. Before trial, in response to an order of court, she supplied a list of the names of all persons who had been employed as teachers in the school during the last five years. The name "Lee Kin Wah" does not appear in that list. According to her, the parents of pupils paid fees to Lee Kin Wah; Lee Kin Wah issued receipts and subsequently wrote up the exercise books from the counterfoils of the receipts and then destroyed the receipts. She said that Lee Kin Wah gave her money. At one stage in her evidence she said she checked the lists in the exercise book with the counterfoils; but later she said that Lee Kin Wah had taken the exercise books home after she left the school and that she (WONG Ming-chun) had seen them for the first time after she had been asked to produce them in court. 34. The other things produced by her were two bundles of enrolment forms sewn together with ordinary thread - one purporting to be the enrolment forms for the academic year 1966/67 and the other for the academic year 1967/68. 35. It was quite obvious to me that each of the exercise books had been written up at one time. They were not books kept, as one might say, in the normal course of business; and I do not think that they were worth the paper they were written on. This also applies to the bundles of enrolment forms. It is the simplest thing in the world to take a few enrolment forms and sew them together. It was put to Wong Ming Chun that the exercise books were prepared for the purposes of this case. She denied the suggestion; but my impression was that they were so prepared. 36. According to her, all previous records, including the counterfoils of receipts for fees, had been destroyed by Lee Kin Wah. She was unable to produce any book, past or present, which might be said to be a permanent record; and in particular no attendance registers, such as are prescribed by reg. 97 of the Education Regulations, were produced. 37. She said that the school had 7 teachers. On the basis of the figures for fees recorded in the exercise books, it was pointed out to her that prior to August 1967 she must have been running the school at a loss. She agreed that this was so; and she said that her father had helped her to make ends meet prior to his death in January, 1964, adding :
38. She gave some rather nebulous evidence about being "shunned" by certain parents and friends; and she alleged that this was on account of the newspaper articles. I put no weight on this evidence. She also alleged that she had so much say in the running of the school that any reference to the school would, in the eyes of parents and friends, be regarded as a reference to her. I put no weight whatsoever on that allegation. Indeed, having seen her in the witness box, I have the gravest doubts as to what is Wong Ming Chun's real position in the school. Quite clearly, she did not have the personal control and knowledge concerning such matters as enrolments, fees, and general administration of the school such as one would expect from a manager and supervisor. When she was asked about the singing of communist songs, the general tenor of her evidence seemed to be that she, personally, did not authorize or encourage such things. The question really is : was she in any position to prevent such celebrations if she had wanted to? She did not even call the person whom she referred to as "Lee Kin Wah" to substantiate the entries alleged to have been made by her in the exercise books; nor were any of the teachers, past or present, called as witnesses; and not a single parent or child gave evidence. 39. If a person is libelled, they do not have to prove damage; and, the fact that there is no reliable evidence before me that Wong Ming Chun suffered any damage either directly or indirectly as a result of the defendants' publications makes no difference. But can it possibly be said that the defendants have libelled her? 40. If a newspaper falsely alleged that sharpened iron bars and inflammatory posters had been found in the Supreme Court building, could it be said that this was a libel on the Registrar of this court, who, undoubtedly, is responsible to the Chief Justice for the general administration of this building? I do not think so. If the false allegation was that inflammatory posters were found in the Registrar's desk, it might be that this would be libellous of the Registrar; but not otherwise. 41. Wong Ming Chun's name does not appear in any of the articles; and I think that there is much force in the submission of counsel for the defendants that one cannot equate, say, an action for a trade debt by a "one-man firm" with a libel action of this kind. It is very easy to write on a writ of summons : "AB trading as CD", and to say in evidence that any reference in a newspaper to CD must be a reference to AB. There was nothing to suggest that any inflammatory posters or sharpened iron bars were found in her quarters in the school, and it was not as if the articles alleged that inflammatory posters had been found in the school on numerous occasions over a period of several weeks so that the ordinary reader might conclude that someone had been negligent in the running of the school. The articles give no indication in which part of the school the posters were found; and, in my view, the mere fact that the articles allege falsely that two members of the staff were arrested and that inflammatory posters and sharpened iron bars were found in the school, was no libel on Wong Ming Chun. It may be that the allegation that two members of the staff were arrested is a libel of those two persons; but that question is not before me. 42. For the above reasons, there will be judgement in favour of the defendants with costs.
22 MAR 1968 Representation: Benjamin Liu (Y.C. hiu & Co) for the Plaintiff in each case. A.Zimmern (Deacons) for all the Defendants in each case. (1) (1920) 15 H.K.L.R. p. 72. (2) (1960) H.K.L.R. p. 99. (3) (1892) 8 T.L.R., 805. (4) (1891) 1 Q.B. at p. 317. (5) (1902) Probate, p. 150. (6) (1920) 2 Ch. p. 24. (7) (1963) 2 AER at p.169. (7) (1963) 2 AER at p. 171. |