Lok Kwai Fu and Andother v. Y.C. Chan and Others

HCA000891/1977

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 891 OF 1977

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Coram: Li, J.

Date of Judgment: 2nd February, 1978

Mr. Cheng Huan (W.K. Poon & Co.) for 1st and 2nd plaintiffs

1st and 2nd defendants in person

3rd defendant absent

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JUDGMENT

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1. This is an action for libel contained in articles published in the 45th issue of the Secret Information Weekly, (hereinafter referred to as "the magazine"). The magazine was published on the 17th of March last year. The 1st and the 2nd plaintiffs are actor and film actress respectively. The 1st defendant is the supervisor of the magazine, the 2nd defendant is the publisher and distributor of the magazine and the 3rd defendant is the printer of the magazine. The plaintiffs at the hearing are represented by counsel and the defendants appear in person.

2. Before I refer to the substance of the plaintiffs' claim, I like to clear up the position regarding the 3rd defendant, a confusion that has been caused entirely by the conduct of one CHEUNG Ping-shu and the 3rd defendant. As I have mentioned, the complaint was to the articles published the magazine, printed, distributed by the three defendants. Solicitors for the plaintiffs acted promptly and wrote to all the defendants including the 3rd defendant, Wah Li Printing Press, on the 18th of March last year at the address of 309 Jaffe Road. This letter demanded an apology and withdrawal of such publications in the next issue of the magazine itself and two approved newspapers. The plaintiffs' solicitors also asked for an undertaking not to further publish such libellous matters and for a reasonable compensation. On the 22nd of March, 1977, a firm of solicitors, Messrs. Woo & Woo wrote on behalf of one Y.C. Chan, the 1st defendant, one HO Siu-kwong as a partner of the 2nd defendant to acknowledge receipt of the letter and ask for particulars. They further asked that the plaintiffs should not take action without reference to them. Messrs. Woo & Woo in their first letter referred to the 3rd defendant as the Wah Li Off Set Printing Company Limited only.

3. Nothing came of the negotiation and a Writ was issued on the 18th of April, 1977 and served on the first two defendants as well as the 3rd defendant by the name of Wah Li Printing Press at 309-311 Jaffe Road. The writ was accepted by CHEUNG Ping-shu. Later an Appearance was entered by all the defendants including the 3rd defendant in the name of Wah Li Printing Press by their then solicitors. A Defence was filed on 13th September, 1977 admitting that the 3rd defendant, Wah Li Printing Press, was the printer of the magazine complained of. At the hearing the defendants all appeared in person having by that time with drawn their instructions to their then solicitors. The 1st defendant appeared in person, the 2nd defendant appeared by his partner HO Siu-kwong, and the 3rd defendant, Wah Li Printing Press, appeared by CHEUNG Ping-shu in person. Cheung alleges that he is the sole proprietor. At no time in the course of the proceedings does CHEUNG Ping-shu say anything that he had no connection with the Wah Li Printing Press. Indeed he exercised his right to cross-examine on behalf of the 3rd defendant. He even elected to give evidence himself on behalf of the 3rd defendant. It is only in the course of his evidence that he tells me that he is merely a director and chairman of the board of one Wah Li Printing Press Company Limited which has nothing whatsoever to do with the Wah Li Printing Press and that he has no connection with the Wah Li Printing Press. He says that he accepted service and accepted the original letter written by the plaintiffs' solicitors solely because he felt that his limited company, of which he was chairman and director, did print the magazine in question. This gives rise on the face of it, a problem. If the printer of the magazine was Wah Li Printing Press Company Limited which is a corporation, it has no right to appear in this court by a shareholder or even a director. He must, as a limited company, appear by counsel. If Cheung was not a partner of the Wah Li Printing Press, the partnership or firm which admitted, by its own defence through its solicitors, to be the Printer, then Cheung had no right to accept service and had no right to represent that firm or partnership at all. In short, if the Wah Li Printing Press is truly the 3rd defendant, then it has no representation. This firm is absent during trial. However I observe that at the bottom on page 30 of the magazine there is a print to the effect that the Wah Li Printing Press is the printer. It never mentioned any limited company. Secondly, the Defence filed admits that Wah Li Printing Press was the printer.

4. I am satisfied on hearing what Cheung has to say and the conduct of the proceedings that this CHEUNG Ping-shu is trying deliberately to be clever. The geographic position of the firm and the limited company is practically the same place - 309-311 Jaffe Road. However, Cheung deliberately segragates the two premises. If Cheung is not a partner of the Wah Li Printing Press, then he had no business to involve himself in these proceedings or to instruct his then solicitors to the contrary. However, an Appearance had been entered on behalf of the partnership and a Defence had been filed on behalf of the partnership, and Cheung deliberately came to this court to represent the partnership. In the circumstances, I offered Cheung the option whether he claims to represent the partnership. If he does not he has the option to leave this court. I explain to him that if no one appears for the partnership after his withdrawal then the partnership, will be treated as having been served but absent from trial. He elects to leave the court. That is the position. Having regard to the whole circumstances, I am satisfied that the Wah Li Printing Press, the 3rd defendant, had been served and that the Wah Li Printing Press, the 3rd defendant, had deliberately absented itself from this trial. Thus the trial proceeds with the presence only of the 1st and the 2nd defendant but in the absence of the 3rd defendant.

5. I now come to the Statement of Claim. By paragraphs 1 and 2, the 1st plaintiff claims himself to be a well-known film actor and the 2nd plaintiff claims herself to be a well-known television and film actress. They allege that the 1st defendant is the supervisor, the 2nd defendant is the publisher and distributor of the magazine and the 3rd defendant is the printer of the magazine. It is further alleged that on the front and back pages and on pages 3, 4, 14 to 16 and page 20 of the magazine libellous matters were falsely and maliciously published by the 1st defendant, published and distributed by the 2nd defendant and printed by the 3rd defendant. The libellous matters are set out in detail from paragraph 5 to 13 of the Statement of Claim. I shall not repeat them. Suffice it to say that these paragraphs in the statement of claim set out sufficient details in their allegation of libellous materials. Paragraph 15 alleges that the defendants published this magazine entirely for profit and deliberately inserted these materials so as to boost their sales. Paragraph 16 alleges that the defendants threatened to continue with such publication. For these reasons the plaintiffs first claim compensatory damage, then exemplary damage, and lastly an injunction to restrain the defendants from further publishing such libellous materials, and costs.

6. By their defence all three defendants deny that either the 1st or the 2nd plaintiff is well-known in any way. However, they admit their respective capacities as supervisor, publisher and distributor and the 3rd defendant, in particular, as the printer of the magazine. They further admit that the front and back page of the magazine contains reference to the 2nd plaintiff but not the 1st plaintiff. They admit that pages 3 and 4 of the magazine contain reference to the 1st and 2nd plaintiff. However, they deny that the articles in page 14, 15 and 20 can in any way be described as being referrable to either the 1st plaintiff or the 2nd plaintiff. In addition, they admit that page 3 of the magazine alleges that the 2nd plaintiff was afraid to go to Kowloon Tong, was degraded to a second class actress or supporting role actress, that the 1st plaintiff and girlfriends of opposite sex and that the 2nd plaintiff refused to answer questions whether she was in any way in love with the 1st plaintiff or the plaintiff had girl-friends, or that she had an unfinished affair with the actor NG Wai-kwok. These are admitted as published in page 3 of the magazine. Then followed a rolled-up plea that even if such pages as 14, 15 and 20 were referrable to either the 1st or the 2nd plaintiff, they were not in any way defamatory to either of them. For this reason the 3rd defendant denies liability.

7. Having regard to such pleadings, the issues between the parties are two fold. First, I have to decide whether all or any of the publications on pages 14, 15, 20 of the magazine can in any way be referrable to either the 1st or the 2nd plaintiff. Secondly, I have to decide whether the pages contained in this magazine - the front and back page and pages 3, 4, 14, 15, 16 and 20 are in any way taken individually or as a whole, libellous to either the 1st plaintiff or the 2nd plaintiff. If the answer to these two questions are in the affirmative, then I have to consider the quantum of damages. Needless to say that if I find the answer to either the first issue or the second issue to be in the negative, then there is no question of the plaintiffs suffering any damage at all. I shall consider the first question whether any of these pages is referrable to the 1st or the 2nd plaintiff. Before I do so, perhaps I shall make this observation that it is just as well that I have been blessed with the ability to read the original text of the article which is written in Chinese. Translation of any publication in one language will of necessity take away some of its subtlety and its meaning in the original. It is only a person who can read the original text that can grasp the real innuendo that is contained in such publication. I am not trying to boast that I can read Chinese. I make this observation merely to illustrate that if the translation into English loses some significance in the original text then in the original publication should be considered. I shall try to demonstrate.

8. I find no difficulty, of course, with the front page and the back page of the magazine which named the 2nd plaintiff by name, with the caption that "LUI Yau-wai wants to fight for extra marital freedom." A big photograph of the 2nd plaintiff was printed on them. Pages 14 and 15 contain a publication describing in the most depraving terms of a woman by the name of "NUI Mo Sheung" with the man called "King of big stomach". With reference to the name only, one will readily observe that a lot of Cantonese people pronounce the character meaning a girl or female "Nui" as "Lui". The intonation of "Nui" and the surname of the 2nd plaintiff is near enough. The second character "Mo" is the antonym of "Yau", the former meaning "nil", the second meaning "have". There "have" and "have not" is just a matter of association of ideas. "Sheung" and "Wai" doesn't matter. As to the association of the name NG Wai-kwok, the article itself contains a description of this big stomach king saying that he has five stomachs. The character "five" in Cantonese is exactly the same in the pronunciation as "Ng". The pronunciation of the word "stomach" in Cantonese is exactly the same as "Wai". One again can identify these two persons described and written in pages 14 and 15 in that article as the 2nd plaintiff and NG Wai-kwok. Apart from such association of ideas in name, one only has to read the contents of the articles in page 3 and page 4 of the magazine. The two articles in page 3 and page 4 name the 2nd plaintiff and NG Wai-kwok as being past lovers or people having an unfinished love affair. They write of them going to Kowloon Tong. They write of them having met each other. They allege that LUI Yau-wai viewed the intended transfer of NG Wai-kwok to R.T.V. with mixed feelings, sadness and fear. The article in pages 14 and 15 is more or less a repetition of all these allegations albeit in an assumed name of "Nui Mo Sheung" and "King of big stomach". That is not all. From the evidence I am satisfied that the 2nd plaintiff LUI Yau-wai was at the time the only television actress whose husband was a Kung Fu film star constantly leaving Hong Kong and had to make films in Taiwan and she was then the only television actress who was trained under the same teacher by the name of CHUNG King-fai with NG Wai-kwok and that at one time they were both employed by the Television Broadcasting Company Limited. There is also the evidence of the witnesses SO Wah-yin, CHUNG Kam-kwong and SUNG Ho-fai who say that when they bought a copy of the magazine and read the article, they had not the slightest doubt that these articles, all of them in pages 3, 4, 14, 15, 16 and 20 referred to the 2nd plaintiff and NG Wai-kwok. They could practically identify the characters there in described were NG Wai-kwok, the 1st plaintiff, the husband, the 2nd plaintiff, the wife of the 1st plaintiff. They could identify not only the personalities in those articles, but also the locations like the broadcasting station in Broadcasting Drive, like what the articles alleged as "dragon gate" as one of the motels located in the various spots in Kowloon Tong. The articles allege that the 2nd plaintiff was meeting secretly this actor NG Wai-kwok in these various motels and she was afraid to be seen there. Having regard to these reasons I am satisfied that these articles in the aforesaid pages of the magazine, made reference to nobody else but the 1st plaintiff and the 2nd plaintiff. Perhaps I should add that the article on page 20, referred to the woman as "Mo Mud Wai". That is a nickname that friends gave to the 2nd plaintiff. There is no shadow of a doubt that in all these articles, they refer to a scandal concerning the 1st and the 2nd plaintiff.

9. The next point I consider is whether such publications in these articles are in any way defamatory. The caption in the front and back page speaks for itself. It is alleged that the 2nd plaintiff is fighting for extra marital freedom. Perhaps in this modern permissive society, some people do have freedom without having to fight for it. But the literary meaning of this term "extra marital freedom" is defamatory in the sense that it goes way beyond as suggested by the 1st defendant as "playing mahjong" or "having a cup of tea". If it must be linked with a cup of tea, it must be "Tea and Sympathy" as well. The term "extra marital freedom" must contain something more sinister than "freedom" itself because even a married person has a lot of freedom. When one talks of "extra marital freedom" it means one thing and one thing alone and that is to have another sex partner.

10. I now come to the article in page 3 of the magazine. To start with, the article states that "Furthermore there are more actresses having more 'Ticket Box Value' than Nau Nau, namely 'Distance Horse' Li Sze Kei who pose an even greater threat to Lui Yau Wai". That directly refers to the 2nd plaintiff. "With the rising up of new head actresses the old head actress Lui Yau Wai had been degraded to a second class actress. When she had discovered that R.T.V. was in need of actress, she determined to switch job. Of course at that time, the rumour relating to her relationship with Ng Wai Kwok put her in a disadvantageous position. People at that time even spread the rumours of 'Extra-marital friendship', 'Dissolution of marriage', 'Hide and Seek', 'Dragon Gate Incident'. Her departure from T.V. Broadcasting indicated severance from the old enviroment, this included 'The World of Two People' and 'The world of T.V.B.'. Her last appearance in T.V.B. was 'The Night of Sharp'." Later the same article contains the following: "The reasons of her changing of enviroment were partly because she did not want to work below Wong Ming Chuen, Debora, Wan Lau Mei, partly because she saw new actresses, like Mau Hin Yan, Mary Hon, had popped up while she is being frozen. Furthermore, after the happening of 'Dragon Gate Incident', she had to face the curious looks of others and inquiry from others concerning her performance with Ng Wai Kwok in 'Kowloon Tong Comedy'. She was under mental pressure after she had exchanged a detailed conversation with Koo Lung upon the latter's return. Although she and Koo Lung were both of the modern and liberal style, and should have reached compromise of each other having opposite sex friends, the one she was scared to face was Ng Wai Kwok. She was in love with him before her marriage, and sympathized with him after her marriage. But he, in fact, had too many girl friends; he had been in love with Chan Ping, Shaw Yum Yum, and this had brought to her a big blow and especially when she had to perform in stage taking up the part of 'Sacrificing herself', she had more unfair treatments and tears. She eventually had to escape from the two people's world." I find these words insinuate that the 2nd plaintiff had an affair with Ng Wai Kwok at Kowloon Tong and was discovered by someone, that subsequently because of public opinion and pressure she had to curb her activities and to avoid embarrassment she joined the R.T.V. The article also expressly described the 2nd plaintiff as a second-grade or second-class actress playing only supporting roles. Furthermore it described that on transfer to R.T.V. the 2nd plaintiff was escaping from "Two People's World". On the face of it the term "Two People's World" does not mean much. But when one reads of the "Two People's World" in context of the article it means the world of two persons having very intimate relationship to the exclusion of others and oblivious of others.

11. The same article contains the following passage: "Lui Yau Wai is scared to go to Kowloon Tong. She never mentioned Ng Wai Kwok. 007 was observant, realizing the stage of passing through from a girl to a woman. Occasionally she also had 'the strange reflection of love and consideration of a girl'. This was the happiness of Lui Yau Wai who had given birth to 'Lung's child'. This was also her sadness".

12. On page 4 the article named Lui Yau Wai and Ng Wai Kwok, in the following terms: "However, one of the closest friends of Ng Wai Kwok said that the most important reason why Ng was prepared to join the R.T.V. was to have more opportunities to get closer to Lui Yau Wai apart from financial attraction".

13. In the same article under the heading "Speaking of the truth after drunkeness - Crazily in love with Lui Yau Wai", it tells of Ng Wai Kwok telling his friend of the truth by saying that: "he had known quite a number of girls, some of them were ordinary friends but some were his real lovers, the one that he found it difficult to forget was Lui Yau Wai. When a person was drunk, his blood was boiling and he spoke daringly and concealed nothing. When Ng Wai Kwok mentioned Lui Yau Wai three words, it proved that he had a deep impression about her and never forgot her until the end of live".

14. Then comes the article in page 14 and 15 of the magazine I shall not read this article in detail because it consists of such matter that is not worthy of any decent paper or magazine. I can only say that these are only garbage in words. They give a picture of the 2nd plaintiff and Ng Wai Kwok having an adulterous union in the motels in Kowloon Tong, telling falsely how the 1st plaintiff making use of the opportunity when he had a film together with the 2nd plaintiff seduced the 2nd plaintiff and therefore made her pregnant, and after married her. Having married her, the parties being not truly in love, each went their own way and found their friends of opposite sex and indulged in a sex orgy. I have no doubt that the term "Muk Tung" refers to the 1st plaintiff as well.

15. To illustrate just one point, I should perhaps read a little bit from page 15 of the article. "Once the 'King of Big Stomach' took part in a marriage feast of the circle, and, after having 3 glasses, under the influence of drink, he made the following remarks 'Another one has married.' 'Tonight is somebody else marriage, not yours, why are you drinking so happily?', his friend asked. 'If I want to I would have married by now.' 'Whom?', his friend followed, 'Is it 'Shun Lui' or 'Yam Yam Shui'?' 'Both are not. All along there is only one girl Lui Mo Sheung in my mind.' At long last, the 'King of Big Stomach' exposed the secret of his mind. Although Lui Mo Sheung had married and with a child, she was always remembered by him. One should have realized the close relationship between them both; it was not easy to forget Lui Mo Sheung."

16. In this article, under the heading "Single Man and Lone Woman; Resumption of an old affair" the following passage appears: "Both the 'King of Big Stomach' and Lui Mo Sheung had the opportunities to resume their previous adulterous affairs when 'Muk Tung' was in Taiwan. However, 'Lui Mo Sheung' preferred to have her adulterous affair outside in a mansion and dared not bring the 'King of Big Stomach' to her matrimonial home. There were reasons behind that. 'Muk Tung' had already heard from outside that his wife and the 'King of Big Stomach' were continuing with their previous affairs. He therefore informed the servant privately, asking the latter to keep spying of Lui Mo Sheung, and not to allow any other man to get into the house. Even entertainment of friends is not permitted. If the servant suspected anything, he should be notified, and the servant would be heavily rewarded. Having been so trusted, the servant kept on spying 'Lui Mo Sheung' closely. The servant had records of her master's movements like time of reporting to station, time of getting off duties, making programmes etc."

17. Page 20 of the magazine published what purports to be an interview with the 2nd plaintiff naming her as with Mo Mud Wai. The conversation in the interview discloses that the 1st plaintiff had a lot of girlfriends indulging in a sex orgy while he was in Taiwan. It is alleged by the magazin that the 2nd plaintiff even took out a bundle of photographs of her husband and various women in the nude from her handbag and aired her grievance in front of the reporter.

18. Taking all these into consideration, I have no hesitation in finding that the caption in the front and back pages defame the 2nd plaintiff as to her character that she is fighting for extra marital freedom; the article in pages 3 and 4 defames the 2nd plaintiff by insinuating that she has had an affair with another actor who is not her husband; the article in pages 14 and 15 is a repetition of the same and also defames the 1st plaintiff by saying that he seduced a young woman who filed with him and that after their marriage he beat her up; the article in page 16 is a repetition of the same and the article in page 20 reports an interview which never took place. In any event, page 20 is more offensive to the 1st plaintiff than the 2nd plaintiff. It is alleges that he, as a married man, indulged in a sex orgy in Taiwan. The magazine, when reading at these article as a whole is certainly defamatory to both the 1st plaintiff and the 2nd plaintiff. It is also defamatory to another actor who is not a party to this action.

19. As to the proof of malice and falsehood, the defence never suggest that any of these articles are true or wholly true. The alleged interview as contained in the magazine never took place according to the evidence of the 2nd plaintiff. All the allegations about her were untrue except for the fact that she was with child by the 1st plaintiff before they married and that at one time her father opposed to the marriage. The rest of the articles were wholly untrue. Having regard to the circumstances, I am also of the opinion that the publication was malicious as well as false. This, decides the issue of liability as far as the three defendants are concerned because they have admitted to be supervisor, publisher, printer and distributor of the magazine.

20. Before I come to consider the quantum of damages, I should then consider a rather brief evidence by the defence. The defence claim a writer's licence. The 1st defendant suggests that these articles are all false and are invented, but they do not refer to either plaintiff. I find as a fact that they refer to the plaintiffs. The reference are deliberate by the article in page 3 and 4 leading up to the climax of the insult in pages 14 and 15 as well as page 20. I cann't accept the defence that there was no malice in this matter. The 2nd defendant's defence is that he was busy and he could not check every single article that was written. These are not my concern and these are not valid defence.

21. The most important factor in consideration as to quantum of damages is the conduct of the defendants. When complaint was made to them, they had the opportunity to withdraw these false statements. By that time the defendants should have realized what they published were completely false and malicious. They stood firm. They refused to apoligize. They refused to withdraw the publications and they refused even to offer a cent for compensation. There are people in the literary world who write good reports in the press, who write good articles, who deserve respect. There are unfortunately people who deserve to be in the gutter rather to be in the editor's room or at the writer's desk. They are cowardly, venomous and dangerous. Such people deserve, when caught to be visited by exemplary damages. I find on the evidence that these articles are libellous to both the 1st and the 2nd plaintiff for the reasons I have given. I find that before the publication of these articles, the 1st and the 2nd plaintiff were a happily married decent couple like all young people they are trying to get ahead in their respective profession. Then came this unwarranted bomb-shell which made use of them to boost the sales of a dirty magazine by imposing a falsely created scandal upon them. Before this publication they might not have got to the top of their respective profession, but they were making headways. They were budding stars, to say the least. The 1st plaintiff have made some 20 odd films and was in the course of establishing himself. The 2nd plaintiff is a budding television actress. Given time she might get to the top or be very comfortably off. Had this couple been left alone, at least they could carry on their life as an actor and actress and would earn a decent living without being embarrassed. As a result of this publication, they are embarrassed to meet their friends, their associates. It also cast a shadow over their marital life. And by these venomous articles, a seed of discord and a seed of suspicion had been sown in their hearts.

The damage to them, I hope, as a result of this action and their vindication, may be repaired. Time is a good healer. However, having regard to the damage done to them, I award to the 1st plaintiff compensatory damage in the sum of $30,000, to the 2nd plaintiff the sum of $50,000, exemplary damage to the 1st plaintiff in the sum of $20,000 and exemplary damage to the 2nd plaintiff in the sum of $50,000. I deliberately segregate these two items of damages for one reason and one reason alone. It is said time and again that in libel actions exemplary damage is not to be encouraged. However, I view this as an exceptional case. The malice, the falsehood and the damage done is exceptional, I will not be able to do justice to the case without awarding exemplary damages. However, I will be the first one to concede that I am not infallible. In case this action should go up to the court of appeal, I should make myself clear what are the compensatory damages I award to the respective plaintiffs. In short, there will be judgment for both the 1st and the 2nd plaintiff in a total sum of $150,000. The injunction to the issue is clear. Costs should follow the events and there will be costs to the 1st and 2nd plaintiff. The judgment should go against all three defendants jointly and severally.

Representation:

Mr. Cheng Huan (W.K. Poon & Co.) for 1st and 2nd plaintiffs

1st and 2nd defendants in person

3rd defendant absent