Aa Albery and Sons Ltd v. South China Morning Post Ltd and Others

HCA011810/1983

BETWEEN

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Coram: Hon. Power, J.

Date of Hearing: 17th February, 1984.

Date of Delivery of Judgment: 17th February, 1984.

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JUDGMENT

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1. In this matter the Plaintiff A.A. Albery & Sons Limited seek damages for statements, alleged to be defamatory which were made in the paper of the 1st Defendant, the South China Morning Post. The suggestion of the Plaintiff is that certain words that were used in that newspaper suggested that their practice of charging a commission was wrongful, that they were not giving sufficient notice to customers of their practice, that they were providing deceptive information to the  public in this regard and that they were deliberately tripping and trapping the public in a dishonest and outrageous way. The Defendant has entered a defence in the matter in which it is denied that the words used bore the meanings alleged by the Plaintiff and alternatively that the words in their natural and ordinary meaning were true. The contention of the Defendants is that the words were true in substance and in fact and were fair comment upon a matter of public interest.

2. The Plaintiff now brings a summons before this Court seeking to restrain the Defendants from publishing, ''of and concerning the Plaintiff, words to the effect that the Plaintiff was a swindler, was unscrupulous, had deceived cheated or trapped others or similar words or words to the like effect". At the outset of this hearing, the summons was amended by striking out the words "was unscrupulous, had deceived cheated or trapped others or similar words or words to the like effect". The injunction, therefore, being sought until the trial was one restraining the Defendant from publishing words to the effect that the Plaintiff was a swindler.

3. It is to be noted that there was no plea in the Statement of Claim that any such words had ever been used by the Defendants in their newspaper describing the Plaintiff. From the affidavit of Mr. Wright, a director of the plaintiff, it can be seen that the word "swindlers" was used in a letter which was written to the newspaper and published therein on the 19th December, some three months after the issue of the writ. In that letter the writer, in the final paragraph, having already set out a number of facts which he said showed that the shop which he was describing, it was not named, was guilty of sharp practice said, "The Hong Kong Tourist Association, the Consumer Council, the Commissioner for Banking or the Attorney-General's Office, should do something to put these swindlers out of business".

4. The Plaintiff contends that statement referred to them and this contention is not contested by the Defendants. What Mr. Hutcheon, the 2nd Defendant, and Editor of the 1st Defendant, says in his affidavit is that he believes the facts in that letter were true and that the comments contained therein were made fairly on a matter of public interest. I do not intend to canvass the law in detail. I adopt as correct the broad statement setting out the law in this regard in Duncan & Neill on Defamation, 2nd Edition at p.138. It there states,

"The general rule is that an interlocutory injunction will not be granted if there is any doubt as to whether the words are defamatory, or if the defendant swears that he will be able to justify the words complained of, or if the defendant swears that he intends to rely on any other recognized defence such as qualified privilege or fair comment."

5. Mr. Chan who appeared for the Plaintiff had, of course, to agree that the words "swindler" was never referred to in his statement of claim, but he said that it has clearly been used with regard to his client since the issue of the statement of claim and that the Defendants have never said that they would justify the word "swindler".

6. Mr. Bleach, who appeared for the defendants, contended that the defendants had said that they would justify the use of the words and argued also that no interlocutory injunction in the terms sought was appropriate in this action as the alleged libel was not the subject of these proceedings. Mr. Hutcheon in his affidavit said that he believed the facts stated in the letter which contains the words "were true" and that the comments contained therein were made fairly on a matter of public interest. It seems to me clear that the Defendant is saying that he will justify the words complained of and that they were fair comment upon the actions of the Defendant. That being so, I am quite satisfied that this is not an appropriate case in which to issue an interlocutory injunction and I do not need to consider Mr. Bleach's second point. The application is refused.

7. Mr. Bleach also raised some question as to whether or not the person named as Plaintiff was properly so named. However, I do not need, nor do I think it would be proper so to do on this application, to deal with the arguments which he advanced in that regard. The application will be discussed.

Representation:

Mr. W. Chan (Robertson, Double & Boase) for Plaintiff.

Mr. J. Bleach (Deacons) for Defendants.