Asia Television Ltd. v. Oriental Daily Publisher Ltd. and Others

HCA006124A/2000

HCA 6124/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 6124 OF 2000

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Coram: Hon Chung J in Chambers

Date of Hearing: 2 July 2002

Date of Ruling: 2 July 2002

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R U L I N G

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Introduction

1.The Plaintiff brings this libel action against the Defendants complaining that they defamed the Plaintiff in an article published in the 10 March 2000 issue of the Oriental Daily News. This is the Defendants' application for leave to amend their Defence. The application was taken out on 14 June 2002 (about 2 weeks before the first day of trial). The more substantial proposed amendments are (1) the addition to paragraph 6 and (2) the addition of paragraph 7(vi), particulars (f) to paragraph 8 ("paragraph 8(f)") and paragraph 10(b). The Plaintiff opposes the proposed amendments to those paragraphs.

Paragraph 7(vi) of the draft

2.In paragraph 6 of the draft Amended Defence (to which the Plaintiff raises no objection) the Defendants plead that :

"Paragraph 6 of the Statement of Claim is denied. The Article as set out in Schedule A did not bear, or was not understood to bear or is not capable of bearing any of the meanings as alleged in paragraph 6 of the Statement of Claim and is not defamatory of the Plaintiff as alleged."

3.Paragraph 7 of the draft (substantially the same as paragraph 8 of the original Defence except the addition of paragraph 7(vi)) essentially puts forward the Defendants' case regarding the natural and ordinary meaning of the Article. Paragraph 7(vi) of the draft reads:

"In the alternative and without prejudice to the Defendants' contention as stated in paragraph 6 above, the Article as set out in Schedule A in its natural and ordinary meaning ... the Plaintiff is a TV station that does not keep its promise made to other TV stations over the broadcasting of TV programs."

4.The Plaintiff objects to the addition of this paragraph on the ground that the article in question (which is in Chinese) is not reasonably capable of the meaning pleaded therein. Whether it is reasonably capable of the meaning pleaded at paragraph 7(vi) of the draft has to be determined by considering the whole of the article. However, in order to facilitate the comprehension of this ruling, the more relevant passages are set out below:-

(a) Title of the article: "亞視違反三台共同協議延遲播「預算案論壇」";

(b) "但據知早前三間電視台無線、亞視同有線曾有協議，將「論壇」放在黃金時段播映，但此協議實際無約束力，而負責今年製作嘅亞視卻未有遵守諾言，只安排在晚上11時45分播出，相反無線、有線都照安排在黃金時段播放。";

(c) The caption under the photograph in the article: "亞視新聞部違反協議，不將「預算案論壇」安排在黃金時段播出，爭取更多的觀衆，令人好生奇怪"。

5.In view of the content of the article (including the passages quoted above), I agree with the Plaintiff's arguments that it is incapable of bearing the meaning alleged in paragraph 7(vi) of the draft. The article referred specifically to the agreement relating to the "Budget Forum" programme and did not allege that the Plaintiff is a television station which generally did not keep its promises towards other television stations.

6.I should note that it is not disputed that whether or not an article is reasonably capable of a certain meaning (or meanings) is for the judge to decide.

7.Several arguments are advanced by defence counsel in response. I disagree with all of them. First, counsel argues that the Plaintiff has put forward a general charge at paragraph 6(5) of the Statement of Claim which reads:

"The Plaintiff showed no respect to its fellow broadcasters or the said agreement which it had made with them."

This plea may or may not have been correctly put forth by the Plaintiff. But this is not a matter which forms the subject matter of this application. Even if the plaintiff has included a bad plea in the Statement of Claim regarding the natural and ordinary meaning of the article, this does not mean that the Defendants should be allowed to put in a bad plea as well.

8.Secondly, defence counsel replies on London Computer Operators Training Ltd and Others v BBC [1973] 2 All ER 170 at p. 172. That decision was concerned with whether the previous criminal conviction of the founder of a computer school could be relied upon by the defendants in a plea of justification. Defence counsel submits in the present application that the following observation of the court in London Computer Operators Training Ltd is relevant:

"I think the words in this case are capable of the meanings which the judge himself stated, namely -

'this particular company want to get money from gullible students-shy, inexperienced gullible coloured - if not by false pretences, at least by rigging the aptitude tests [and] a reasonable jury [might find] that this company in those circumstances was being run by people of questionable honesty and background.'

If such is the reasonable meaning which may be put on the words by the jury, the question is whether the convictions of Mr Alexander are relevant and admissible as tending to prove the truth of the words in that meaning. I think they are. They go to show that this computer school was being run by people of questionable honesty and background, who were ready to resort to false pretences to get their own ends."

9.I disagree with this submission because the determination in the London Computer Operators Training Ltd case turned on entirely different facts. The general principles stated therein are not in dispute in the present action. The passage quoted above cannot assist the Defendants regarding whether leave should be given to add paragraph 7(vi).

10.Thirdly, defence counsel also relies on Bookbinder v Tebbit [1989] 1 WLR 640 at p. 647 which reads:

"The question whether a particular charge of wrongdoing carries a general charge may depend upon the context in which the words appear. Where the words are published in written form the writing conveys the context and the defendant is normally entitled to insist that the jury see the whole of the context."

The above passage is only a statement of general principle and does not assist the Defendants in relation to their application for leave to add paragraph 7(vi).

11.To conclude, leave to add paragraph 7(vi) is refused.

Paragraph 8(f)

12.Paragraph 8 (which replaces paragraph 9 of the original Defence) is in short a plea of justification. Paragraph 8(f) pleads that:

"Insofar as the imputation of the Article is that the Plaintiff did not keep its agreement made with TVB and Cable TV on the broadcasting of program, the Defendants refer to and rely on the apology published by the Plaintiff on 8 June 2002 on its breach of the agreement made with TVB and Cable TV on the broadcasting arrangement for the World Cup."

13.Plaintiff's counsel submits that the Defendants have chosen in paragraph 8 (including paragraph 8(f)) to justify only the natural and ordinary meaning set out in paragraph 7 of the draft Amended Defence. He further submits that if the court refuses to give leave to the Defendants to add paragraph 7(vi), leave to add paragraph 8(f) should be refused. This is because paragraph 8(f) is a plea which only seeks to justify paragraph 7(vi). Defence counsel in his reply submission does not specifically dispute this argument. After having perused paragraphs 8 and 9 of the original Defence and paragraphs 7 and 8 of the draft amended Defence, I agree with the above submission of Plaintiff's counsel.

14.Defence counsel contends that the Plaintiff's apology referred to in paragraph 8(f), although written subsequent to the publication of the article, would enable to jury to infer that the meaning pleaded in paragraph 7(vi) is true in substance. Because leave to add paragraph 7(vi) has been refused, this contention is rejected. Leave to add paragraph 8(f) is therefore also refused.

Paragraph 10(b)

15.Paragraph 10(b) of the draft reads:

"Insofar as may be necessary, the Defendant relies[sic] on the matter said in paragraph 8(f) herein in mitigation of damages, if any and which is denied, as sustained by the Plaintiff as a result of the publication of the Article."

16.Defence counsel contends that the Defendants are entitled to put this plea forward in relation to mitigation of damages. The following legal principles are undisputed by the parties in this application:

(1) where the defendant in a libel action wishes to adduce evidence of the plaintiff's bad reputation in mitigation of damages, only general evidence of bad reputation is admissible;

(2) evidence of specific instances giving rise to bad reputation is not admissible;

(3) evidence of subsequent bad character is not admissible.

17.The plea in paragraph 10(b) does not fall within category (1) above. The Defendants also rely on Atkinson v Fitzwalter & Others [1987] 1 All ER 483 at p. 490-1 and 494. Because of the earlier refusal of leave to allow paragraphs 7(vi) and 8(f) of the draft to be pleaded, it cannot validly be argued that the matters set out in paragraphs 7(vi) and/or 8(f) are:

"...properly drafted plea[s] of justification...[to be] included in the defence in a defamation action..."

based upon which:

"[it is] permissible to rely on ... facts that are proved in order to support it to reduce the damages, even though those facts by themselves are insufficient to make good the defence as a whole..."

(the above quoted are from the Atkinson case which is a case relied upon by defence counsel).

18.For the above reasons, leave to add paragraph 10(b) is refused.

Other matters

19.Defence counsel has also referred to a letter dated 14 June 2002 from the Plaintiff's solicitors. The letter indicated that the Plaintiff had no objection to some of the draft amendments to which objection has now been raised by the Plaintiff. It has not been (nor can it probably be) asserted that the Plaintiff should be barred from raising the present objections because of the said letter.

Conclusion

20.Leave to amend the Defence is given save that leave to add paragraphs 7(vi), 8(f) and 10(b) is refused.

Representation:

Mr Anderson Chow, instructed by Messrs Boase, Cohen & Collins, for the Plaintiff

Mr Li Chau Yuen, instructed by Messrs Iu, Lai & Li, for the Defendants