Ng Man Sun v. Law Wai and Others

HCA000182/1989

1989, No. A182 & A826

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Hon. Liu J. in Court

Dates of hearing: 17 - 24 December 1990

Date of delivery of judgment: 24 December 1990

Date of handing down of reasons & assessment: 3 January 1991

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JUDGMENT

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1. At the conclusion of these consolidated proceedings, I pronounced my decision that the plaintiff had been libelled in the two published articles under consideration. I reserved judgment on damages and indicated that I would give reasons for my decision. This, I now also do.

2. The plaintiff has, at all material times, been and still is under contract with Sociedade De Turismo E. Diversoes de Macau, a company incorporated in Macau, to operate the Diamond Room for Baccarat, a V.I.P. Room for Pai Kau and the Mahjong Room for Mahjong as well as a table for dice and another table for Russian Poker or Mini Poker. I shall call Sociedade De Turismo E. Diversoes de Macau "STDM".

3. The 1st defendant was at the material time and still is the editor and publisher of a periodical magazine called "The Original". The 2nd defendant has, at all material times, been and still is its registered proprietor and publisher and the 3rd defendant its printer.

4. "The Original" was published thrice monthly. It may best be described as an adult magazine, displayed for sale in a sealed cellophane wrapper. It was readily accessible in Hong Kong and Macau. "The Original" was on sale in news-stands all over the districts of Hong Kong, such as Central, Western, Tsimshatsui, Shamshuipo, Cheung Sha Wan and Ngau Tau Kok. It was also available in Canada. In its 32nd issue for the 7th January 1989, it was published in an article of and about a former worker in a Hong Kong vegetable wholesale market, nick-named "Market Wai", married to "Eldest or Elder Sister" and running, in the past, a Philippines casino. The article implicated "Market Wai" in triad membership and unlawful activities, large scale organised illegal gambling in Hong Kong and the bribing of officials of the Philippines administration. In the role of a "big brother", "Market Wai" was reported in the said article as having recruited in Hong Kong "more than a hundred brothers of the 14K" to go "all the way to Macau preparing to chop 'Mo Tang Ping' and his followers". As part of his alleged manoeuvre in a triad feud, "Market Wai" was also said in the article to have once caused a false bomb report to be made to the Macau police.

5. On the 11th January 1989, the plaintiff obtained an injunction restraining these defendants from, inter alia, distributing, selling or offering for sale the said 32nd issue of "The Original" containing the said article. In the afternoon of the same day, service of the Injunction Order was duly effected on the defendants.

6. As instructed, Messrs. Fact Finders Limited conducted a market survey on the 16th January with a view to ascertaining whether the said article at pages 32-37 of the 32nd issue of "The original" had been removed from copies on sale.  From 10 outlets throughout Hong Kong, copies of the 32nd issue acquired were found to contain still those pages for the said article about "Market wai".  On the same day, a main distributor in Central was visited by an operative from Messrs. Fact Finders Limited, and from several thousand copies of the 31st, 32nd and 33rd issues in store, 10 each of the two latter issues were purchased. The tenor of the report of Messrs. Fact Finders Limited suggests that these later 20 copies were also full copies, but it was not so categorically stated in the report. Even from the earlier copies of the 10 different outlets, a reasonable inference may be drawn that none of the defendants had taken steps to comply with the said Injunction Order in the High Court Action instituted on the said article in the 32nd issue. Another High Court Action was commenced on a further article in the 33rd issue. I shall call these articles "the first article" and "the second article" respectively. These two actions were consolidated and came before me as such.

7. In the following 33rd issue of "The Original" published on the 18th January 1989, at p.11, the editor alerted the readers to a concluding article, guaranteed to shock, about "Market Wai" in a "commotion within the triad society between 'Mo Tang Ping' of Macau and 'Market Wai', the fierce dragon of Hong Kong, which caused a vengeance killing in Macau".  In the article appearing some pages later in the 33rd issue, the second article, references were made to the recruitment by Stanley Ho of a person therein fictitiously described as "XXX" to operate a Mahjong Stall in the Lisboa Hotel Casino with a view to introducing new games of novelty, the recommendation of "Mo Tang Ping" to "XXX" in Macau for Mo's underworld influence, the devotion of the undivided attention of "XXX" to the setting up of his Macau casino business and the friction between "Mo Tang Ping" and "XXX" during Mo's visit to the Mahjong Stall of "XXX" in the Lisboa Casino. "XXX" was also said to have directed a Hong Kong triad member to do violence to "Mo Tang Ping". There is not a shadow of doubt that the personality "XXX" featured in the main events in this second article referred to "Market Wai", a 3-character nick-name. Even without the editor's express reminder at p.11, this second article would have been understood by a11 reasonable readers to be the concluding instalment of a story about a series of episodes between the same two star personalities reported in the first article.

8. True identity of "Market Wai" and "XXX" as well as the nature and quantum of damages are the only questions for my determination, the defendants having called no evidence. I find "XXX" in the main events set out in the second article as being capable of referring to "Market Wai" and in fact referring to him. The matters published in these two articles of and about "Market Wai" as I have summarized clearly "tend to lower him in the estimation of right-thinking members of society generally". It is undeniable that they would "expose him to hatred, contempt or ridicule". See para.4 Gatley on Libel and Slauder, 8th edn., p.5. I need not further set out my close examination of the contents of these two articles. As outlined, these two articles are, I conclude, defamatory and defamatory of "Market Wai". There was overwhelming evidence from nearly all the plaintiff's witnesses as to the denigrating effect of the passages complained of.

9. Is "Market Wai", in the circumstances of this case, such as would reasonably "lead persons acquainted with the plaintiff to believe that he was the person referred to?" See Gatley para. 281, p.123. More narrowly put the question is : is "Market Wai" so reasonably understood by the plaintiff's acquaintances in the light of the background information given in each article?

10. Detective Calderon read only the translations in Portuguese. Miss Chih, counsel for the defendants, must be correct id her warning that without tendering the translations in these proceedings, any reference to them must be secondary evidence. From the Detective, the Court learned of his evaluation of the plaintiff despite the plaintiff's reliance on a known triad member, Mo Tang Ping, for better surveillance over underworld elements in the Lisboa Casino. According to the Detective, Mo Tang Ping also worked similarly under contract for operators of the other game rooms in the hotel.  The plaintiff denied that Mo Tang Ping worked for him. Probably, it was the plaintiff's company, the International Tourist Company, which took in Mo, but it really matters not as the Detective though none the less of the plaintiff for having to depend no Mo's ability to identify the Hong Kong triads for security.

11. Senior Inspector Clemente conducted the investigation on what was thought be a revelation of substance in these published articles.  Detective Calderon explained that these published articles were legitimate material to be acted upon by the Macau Judiciary Police for the instigation of an enquiry and/or issuance of a warrant of arrest. For Macau, these articles would seem to be sufficient prima facie evidence to found a justifiable suspicion for such an enquiry and/or warrant. Both officers were conversant with the plaintiff's casino operations in Macau as well as the nick-name "Market Wai" for him and "Eldest or Elder Sister" for his wife.

12. Like his Detective, Senior Inspector Clemente speaks and understands Cantonese. He had the first of these articles read or interpreted to him by the Macau Government interpreter before translation. The Inspector had notice of both issues, but his evidence focused on the first. It is true that the Macau Government interpreter was not called and the translations were not produced. But it can be accepted that the Inspector understood triad-related allegations as having been made against "Market Wai". For the Inspector's decision to take action against the plaintiff and for his arrest, the Senior Inspector must have taken "Market Wai", so understood by him to feature in the article, as referring to the plaintiff. The first article referred to "Market Wai" and not the plaintiff by his given names. It was principally on the Inspector's understanding of the identity of "Market Wai" in the first article that he signed the plaintiff's warrant of arrest. The Senior Inspector disclosed that after his personal investigation for at most five days, yielding no further adverse information against "Market Wai", he nevertheless decided on that article to issue a warrant for the plaintiff's arrest. The Inspector must have satisfied himself that "Market Wai" in that article was the plaintiff.  Against a combination of background circumstances such as the murder of the plaintiff's employee, Mo Tang Ping's alleged interference with customers of the plaintiff, the report in the first article that "Market Wai" was a triad member and involved in triad-related activities was regarded by the Inspector as sufficient for issuing the warrant against the plaintiff. He subsequent brought the plaintiff before a Macau judge as a "suspect" at a hearing lasting 5 ½ hours. The Senior Inspector's understanding of these articles was, in my view, properly sought to be introduced to explain his action, including his association of "Market Wai" with the plaintiff. The Court was also told by these officers that the plaintiff surrendered himself three, four months after the issuance of the warrant.

13. The plaintiff's background as given by himself was corroborated by Mr Leung Kwong-chuen, the fish and vegetable market wholesaler and Mr Lau Pak-yan who ran the Friendship Mahjong School in partnership as well as his own export and import business. As related by the plaintiff, this Court came to know of his childhood name "Wai Chai" before his adoption by his fisher-folk foster parents. His name, Ng Man-sun, was given by his foster mother in the application for his juvenile identity card. He gave himself the name of "Ng Wai". He worked as a boy in the Mongkok and Yaumatei markets for some six years. He became to be known as "Market Wai". Later, he joined Kai Kee Mahjong School as a bouncer. He operated a casino in the "Silieasy" or the Salahas Hotel in the Philippines. He found better stability in Macau and procured a contract with STDM under the management of Mr Stanley Ho.  He was given the operation of the Oriental Mandarin Diamond Room for Baccarat, the V.I.P. Pai Kau Room, the Mahjong Room and gambling stalls. The plaintiff ran the only Mahjong Room for the Lisboa Casino. Through his International Tourist Company, he personally brought groups to the Lisboa Casino from Japan, Tai Wan, Singapore, Bangkok, Thailand, Indonesia, Hong Kong.  Members of these groups played, in the main, in his operated rooms.

14. On the 2nd January 1989, the plaintiff bought a 32nd issue and on the 18th January he caused to be acquired a 33rd issue. He had previously, on the 8th January, instructed solicitors to take action on the article in the 32nd issue.

15. The system of criminal justice in Macau would permit the Judiciary Police to detain a person as a suspect for 48 hours on published material such as that in the first article. The suspect would have to be taken before an enquiring judge within those 48 hours and unless explanations could be given to and found satisfactory by the enquiring judge, the suspect is liable to be remanded in jail custody from 6 months up to 2 years. It may well be a counsel of perfection that the plaintiff should have taken an instant stand against his warrant of arrest. In hard reality, he should not perhaps be condemned too harshly for temporarily absenting himself from Macau until he was well prepared with rebuttal evidence for the enquiring judge. It is fair to comment that it could be thought unwise for a man under suspicion in Macau to seek instantly to assert his innocence to the authority. It must also be acknowledged that it is an unenviable task to try to prove a negative such as that in the plaintiff's endeavours to provide satisfactory explanations. Further time was what the plaintiff had chosen to take. He was not absconding in the full sense of that word as he surrendered himself voluntarily after a period to Senior Inspector Clemente at the Macau Ferry Pier. He successfully offered what must have been acceptable explanation to the enquiry judge. He was released after a 5½ hours' hearing.

16. At the end of 1988, one of the plaintiff's staff in his Mahjong establishment in the Lisboa Casino was murdered. On behalf of the plaintiff, it was maintained that the newspapers reports of that incident contained no reference to "Market Wai". The plaintiff's disappearance from the Macau scene after the publication of the two articles in "the Original" admittedly helped to spread the news that he was "Market Wai". But I accept, without any reservation, that his nick-name "Market Wai" followed the plaintiff everywhere years after he had left the Mongkok and Yaumatei Markets. The plaintiff takes no exception to this nick-name "Market Wai' and in fact he is proud of his humble origin. His relatives, friends, acquaintances, clients and associates, particularly people in or connected with the Macau Casino trade, all know him also by his nick-name "Market Wai".

17. I pass then to the evidence of the witnesses. The wife of the plaintiff confirmed, in part, his background and explained how the video tapes contract of their Dragon Sight Development Limited (Canada) with the Canadian Government was shelved as a result of these published articles. The plaintiff's two tables in the Casino were cancelled as a result of his absence. Even Mrs Ng herself introduced the plaintiff at times as "Market Wai".   The plaintiff has risen well above his humble but unblemished past. He is proud of his background at the height of his success, commercially and in his calling. He has made no attempt to conceal it.  Mr Liu of the Staff Discipline Department of STDM overseeing over 2,000 employees also confirmed his nick-name as "Market Wai". He called the plaintiff "Brother Wai". So did the plaintiff's forkis who would be less respectful and preferred "Market Wai" in his absence. Mr Liu told the Court that the plaintiff was better known as "Market Wai" or "Ng Wai" but hardly known by his full name Ng Man Sun and that his wife was known as "Eldest or Elder Sister". Mr Leung Kwong-chuen, the Fish and Vegetable Market Wholesaler as well as Mr Lau Tak-yan, the Mahjong School operator cum Export and Import businessman knew the plaintiff during his early days in the market. They both confirmed that he was known as "Market Wai", with a wife called "Eldest or Elder Sister". Save that Mr Lau seemed to have missed the plaintiff's association with the Kai Kee Mahjong School, they were aware of his casino operation in the Philippines. They had both patronized his gambling rooms in the Casino of Lisboa Hotel and they both understood the articles in the 32nd & 33rd issues of "the Original" as referring to the plaintiff by his nick-name "Market Wai", with "XXX" in the main feature of 33rd issue representing also "Market Wai" i.e. the plaintiff. There are unsatisfactory answers and discrepancies in the evidence of Mr Leung Kwong-chuen and Mr Lau Pak-yan as in that of the other witnesses. But on the whole, they are peripheral and insignificant, coming understanably from these somewhat unsophisticated witnesses. They are all honest witnesses making an effort, in their own way, to assist this Court with what they knew or what they thought they knew. The Public Light Bus selling agent, Mr Leung Chun-man, also confirmed the nick-name "Market Wai" of the plaintiff. Mr Miu, the man who introduced small groups to the plaintiff also testified to his nick-name of "Market Wai". It would seem that Mr Miu was more influenced by what he had learned from friends, associates and newspapers than these two articles which he hardly read and of which he had little recollection, but he claimed to have withdrawn his groups from the Lisboa Casino after these articles. His direct evidence on the articles was unimpressive.

18. In conclusion, I am wholly satisfied that the plaintiff's nick-name is "Market Wai" which is well-known to and well-used by his friends, acquaintances and gamblers within the Hong Kong and Macau gambling circles. I am further satisfied that within these gambling groups in Hong Kong and Macau, there has been no one else known as "Market Wai", although the vegetable and fish market wholesaler, Mr Leung Kwong-chuen testified that in the Kai Kee Mahjong School, there were a number of "Ah Wais". The first article contained quite detailed background information of the plaintiff in addition to the reference to his nick-name "Market Wai". The second article, at its p.11, continued to refer to "Market Wai" with "XXX" used in its other pages. Even when read independently, but with the descriptive association of Mo with the plaintiff's Casino activities and the other given incidents I have enumerated, these other pages also referred to "Market Wai". Of course, one can rest doubly assured, with the benefit of detailed background information so vividly given in each article, that "Market Wai" referred to the plaintiff. Therefore, the libellous statements contained in these two articles are capable of referring to the plaintiff and they in fact refer to the plaintiff.

19. Finally, I come to the question of damages. A libel action is fundamentally aimed at vindicating a man's reputation on matters as to which he has been defamed. The damages awarded must reflect publicly that vindication. Lord Radcliffe dealt with damages in two separate limbs in Associated Newspapers Limited v. Dingle (1964) AC 271 at pp.396 and 398 respectively :-

20. The plaintiff must have striven long and hard for his present status. He had a lowly beginning in his youth. He entered the gambling scene as a bouncer. It must have been trying in his struggle against temptations and for survival. But he has managed to become established in the gambling world without trouble with the law. A triad or other underworld membership is evidently not conducive to the management of licenced gambling establishments, such as the mahjong schools in Hong Kong or casinos in the Philippines and Macau. With his past and the nature of his work, Mrs Ng has every reason to share the pride and self-satisfaction of the plaintiff.  It must have been difficult for a man of the plaintiff's background and calling to avoid personal tie to the triads. Like other operators in the Lisboa Casino, triad and underworld influence had to be discreetly kept at bay by the plaintiff with questionable assistance. The plaintiff, in this case, does not need to invoke our common law presumption of innocence. He has in fact been investigated and cleared by an enquiring Macau judge. Not only should the plaintiff's reputation be completely vindicated, in assessing damages the Court is to take into consideration that his joy of achievements from "a humble but decent origin", as Mrs Ng put it, has at one time been dampened and his pride hurt.

21. I was referred by Mr Chong, counsel of the plaintiff, to the moderation with which damages in defamation had been awarded by these courts, varying from $1,000 to $180,000. It was not suggested that this Court should take any departure from the usual norm otherwise than for good cause. There was no effort made, as enjoined by the said Injunction Order, for removing the offending pages in the 32nd issue. In addition, even after the Injunction Order another article was virtually rushed into print in the 33rd issue in which the defendants displayed callous indifference in their repeated reference to "Market Wai" at p.11 and their blunt substitution of "XXX" in the subsequent pages in what, the defendants must have realised, would be taken by the readers as a continuation of the same story, especially when it was freely embellished with recognizable connecting incidents.

22. The identity of "Market Wai" was hotly contested in these proceedings. In many questions put, more wounds would appear to have been inflicted over that caused by libellous material in these two articles. This Court was urged to take into consideration these heartless attempts to enquire into aspects, for hopefully eliciting some evidence of bad character on the part of the plaintiff in respect of the subject-matters alleged against him. Miss Chih, counsel for the defendants, diavowed any such intention. This Court is prepared to overlook these questions in cross-examination which were said to be necessitated by an enquiry as to identity with perhaps unwitting but unavoidable side effects.

23. But the question of identity was plainly unarguable and the plaintiff was put through days of agony in his personal cross-examination as well as in the purported testing of the credibility of the other witnesses. The plaintiff must have suffered anxiety as well in instituting these proceedings to rectify the damage to his reputation and to assuage his injured feelings as in enduring this protracted hearing. The evidence was such that this Court was able to conclude on the question of identity immediately after counsel's submissions. Yet there was then, and still is, no offer of apology and no expression of remorse. From the manner in which these defendants treated the said Injunction Order, their undaunted publication of the 33rd issue immediately thereafter, the vigorous role these defendants had chosen to play in these proceedings and their remorseless attitude after this Court had decided on the question of identity, exemplary damages cannot be said to be inappropriate. As recommended by paragraph 1455, G atley, there must be no double counting. "The only practical way to proceed is first to look at the case from the point of view of compensating. the plaintiff. He must not only be compensated for proved actual loss, but also for any injuries to his feelings and for having had to suffer insults, indignities and the like. And where the defendant has behaved outrageously, very full compensation may be proper for that. So the tribunal will fix in their minds what sun would be proper as compensatory damages. Then if it has been determined the case is a proper one for prunitive damages, the tribunal must turn its attention to the defendant and ask itself whether the sum it has already fixed as compensatory damages is or is not adequate to serve the second purpose of punishment or deterrence. If they think that that sum is inadequate for the second purpose as well as the first, they must not add anything to it. It is sufficient both as compensatory and prunitive damages. But if they think that that sum is insufficient as a punishment, then they must add to it enough to bring it up to a sum sufficient as punishment. The only thing which they must not do is to fix sum as compensation and as prunitive damages and add them together. They must realise that a compensatory damages are always part of the total punishment."

24. There is no direct evidence of circulation, but from the enquiry of Messrs Fact Finders Limited, it can readily be seen that the magazine "the original" had a wide circulation through outlets all over Hong Kong. Other witnesses testified to sales of this magazine in Macau. The magazine was also available in Canada, presumably in China Towns. The plaintiff was disallowed by contract to divulge the material terms with STDM.   Mrs Ng was only prepared to say that on the average income for three years up to December 1990, the plaintiff's net gain in Lisboa reached $10 million per month, and both spouses claimed to have suffered a reduction in visitors. The plaintiff was troubled by the same inhibition in adducing evidence as to his precise loss resulting from the publication and his absence from Macau. Causation on account of his disappearance is, moreover, debatable. What is beyond argument is that the plaintiff's Macau lucrative operations would tolerate no personal link with the triads.

25. I have given all these relevant matters my concerned consideration. The defendants' conduct is the worst of the libel cases I have had experience of. There is no redeeming feature in these actions. Ultimately, bearing in mind the legal principles and the relevant facts in this case, in the circumstances of the plaintiff I would regard a sum of $350,000 as being appropriate. The plaintiff is therefore to have judgment in that sum by way of damages against each and every of the defendants with costs of these consolidated proceedings.

Representation:

Mr K.M. Chong and Mr P.W. Wong (1st day only) instructed by Norman Yung & Co. for Plaintiff

Ms V. Chih instructed by Paul Kwong & Co. for 1st - 3rd Defendants