Ho Kin Cheung v. Chan Chi Chun and Another

HCA001730/1976

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Commissioner Liu, Q.C. in Chambers.

Date of Judgment: 3rd October, 1977.

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RULING

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1. This is an action based on certain alleged libels arising out of the publication of an article in the issue of the "Popular Daily" dated 1st July, 1976. In the amended Statement of Claim, in addition to alleged malice, in paragraph 6 thereof the plaintiff seeks to rely on certain passages said to be false. The "Particulars of Falsity" given tend to identify the passages of alleged falsehood rather than to specify what are being alleged to be false. In an action for libel, falsity of the words is presumed, and only in cases of defamation of property or title must the falsehood be alleged and proved. It has not been explained how the plaintiff will rely on paragraph 6 of the amended Statement of Claim, and I must assume that it is a material allegation. The "Particulars of Falsity" pleaded strongly suggests that plaintiff ought to condescend to particulars. Further, it is almost undeniable that the manner in which these passages are alleged to be untrue will be of some significance, particularly in the light of the alleged malice.

2. If I may just begin with the first alleged falsity: The offending article under complaint described the plaintiff as having "uttered an impassioned speech". Whether or not the plaintiff made a speech on that occasion is, in my view, of relevance. If indeed the plaintiff gave no speech at all, the defendants may be shwon to have deliberately twisted the truth in the press report that the plaintiff uttered a speech and an impassioned speech for that. Thus, malice on the part of the defendants may be more readily demonstrated. I need not run through the other matters in the "Particulars of Falsity". Suffice it for me to say that the same criterion would be equally applicable as is the same criterion would be equally applicable as is the same principle.

3. Counsel for the defendants rightly criticised that the "Particulars of Falsity" are, in each case, a negative pregnant. It is well established that material allegations must be sufficiently particularised so as to limit the issues between the parties to an action and not to take an opponent by surprise, and it has not been suggested that paragraph 6 is redundant. It would appear to be desirable that the plaintiff should furnish the better particulars as requested by the defendants the request for which has been reproduced in the notice of appeal. In the course of his submissions, counsel for the defendants applied to add a further paragraph (c) to that request, but I am now informed that he would be content with the further particulars originally sought. Consequently, the plaintiff must be ordered to supply the particulars as requested within 14 days from to-day.

4. I turn next to consider the question of costs, I know not whether the same submissions were advanced before the learned Registrar nor the reasons for his decision, and I cannot, therefore, assess liability for costs with any accuracy. However, costs of appeal are to follow the event in the absence of special circumstances. No special circumstances have been shown, and I can find no justification for departing from the usual order for costs. Therefore, I order (1) the Registrar's order dated the 15th of September, 1977 be set aside, (2) the plaintiff be ordered to furnish the further particulars requested by the defendant as set out in the notice of appeal within 14 days from today, and (3) costs of this appeal as well as costs before the learned Registrar be costs for the defendants in any event with a certificate for counsel for the proceedings on appeal.

Representation:

Mr. Y.H. Lau of Messrs. H.H. Lau & Co. for plaintiff.

Mr. Patrick Woo instructed by Messrs Rowdget W. Young for both Defendants.