Kazim Wilson Tuet Wai Sin v. Nurudeen Ma Kwong Ming and Another

HCA001537/1985

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: The Hon. Mr. Justice Macdougall in Court

Dates of Hearing: 30-31 March, 1987, 2-3 April, 7-10 April, 13-16 April & 27-29 April, 1987

Date of Delivery of Judgment: 16 May, 1987

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JUDGMENT

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1. The Hong Kong Muslim Herald ("the Herald") is a newspaper that is published monthly free of charge and is available either to persons in Hong Kong or overseas who place their names on a mailing list, or at the mosques in Hong Kong.

2. In its January 1985 edition the Herald published in a correspondence column called Muslim Forum an article headed "Down with Munafiqin".

3. The Plaintiff alleges that certain words in the article refer to and are defamatory of him and that they were falsely and maliciously published or caused to be published by the 1st defendant and falsely and maliciously published by the 2nd defendant. There is no dispute either that the 1st defendant and the 2nd defendant were the editor and the publisher respectively of the Herald at the relevant time, or that the article refers to the plaintiff.

4. The words of which the plaintiff complains are as follows:

5. In paragraph 4 of the amended statement of claim, the plaintiff pleaded that those words in their natural and ordinary meaning meant and were intended to mean:

6. In their re-re-amended defence the defendants deny that the words are defamatory and that the publication was false and malicious. They pleaded that the words in their natural and ordinary meaning would be understood by members of the Muslim Community in Hong Kong to mean:

7. The defendants have pleaded three other defences. First, they claim, that the occasion of publication was one of qualified privilege in that they were under a social, moral and religious duty, or any one of those duties, to publish the views of Muslim correspondents to the Muslim community in Hong Kong whose members had a like duty and interest to receive them. In this connexion the defendants contend that the Koran states that Muslims have a religious duty to expose munafiqin.

8. Secondly, they claim that some of the words in the passage complained of are allegations of fact that are true in substance and in fact.

9. Thirdly, they claim that other parts of the passage consist of expressions of opinion that are fair comment published in good faith and without malice on matters of public interest.

10. In claiming that the word 'munafiq' means 'hypocrite', Mr. Chan for the plaintiff was at pains to distinguish between this meaning and that contended for by the defendants, namely, "one who simulates religious virtue".

11. The Shorter Oxford English dictionary defines 'hypocrite' as "one who falsely professes to be virtuously or religiously inclined; one who pretends to be other and better than he is; hence a dissembler, pretender".

12. The word "hypocrite" is not an obscure word. I am satisfied that the average person who read the article would have understood it to mean what the dictionary says it means.

13. There is no dispute that the word "Ummah" means the Muslim community and that the expression "Jama'at salat" means an occasion when Muslims gather together and pray. At such times they are normally led in their prayer by someone who is usually an Immam.

14. The first matter that I have to decide is whether the passage is defamatory. Both counsel agree that defamation is the publication of a statement which reflects on a person's reputation and tends to lower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him.

15. Thus an article that disparages a man in the eyes of a particular section of the community or discredits him with one special class of persons is not defamatory unless the average right thinking man in society in general would take the same view.

16. Mr. Barlow, for the defendants, contends that the average man would have difficulty in understanding what the passage means, particularly since the writer employed Arabic words, such as "munafiq" and "Ummah" and sentences such as "He was so daring to claim he was sent by Allah to manage the Kowloon Mosque" and "He claimed and is claiming himself the leader of Muslims in Hong Kong so as to justify his status to make alliance with the pagans and infidels in the name of Islam in the so called Six Religions Alliance".

17. Whilst I accept that it is probably true that few persons in society generally would understand what some of these words mean, I have no doubt that on reading the first paragraph of the passage complained of any average right thinking member of society in general would conclude that it was alleged that the plaintiff is a brazen hypocrite who, whilst affecting to be motivated by highly commendable religious considerations, is in truth actuated by personal ambition and material greed, and that in pursuit of those selfish interests has made and continues to make false claims as to his status in the Muslim community.  The reader would also understand the article to allege that the plaintiff has consciously used his wealth in some unspecified manner to influence ignorant Muslims to vote him into office as Chairman of the Muslim Association, so that he could then exert influence over various Muslim institutions and use the power so acquired to promote his business interests.

18. The first sentence in the second paragraph of the passage complained of clearly alleges that the plaintiff imposes a racial policy for the Association. It is important to note, however, that it does not allege that he imposes a racist policy. In my judgment because of the use of the preposition 'for' instead of 'on', the ordinary reader would understand this to mean that the plaintiff lays down or enforces on behalf of the Association a policy of restricting its membership to persons of Chinese race.

19. It is common knowledge that many associations restrict their membership to persons of particular race. Although this practice might not meet with universal approval, I do not think that the plaintiff's reputation would be lowered in the eyes of the average right thinking member of society generally by the mere fact that he carried out a policy of restricting membership of the Association to Chinese.

20. Mr. Barlow, for the defendants, submitted that it is plain from a reading of the entire article that the authors did not intend to convey the meaning that naturally arises from the use of the words "in order to" in the last sentence of the passage complained of, but that they intended to and did convey the meaning that the effect of the plaintiff seeking to establish a firmer friendship with the communists would be to create a threat to the Muslims in Hong Kong. In other words the authors did not intend to convey the meaning that it was the plaintiff's intention and purpose to threaten the Muslims in Hong Kong but that his actions would have the consequence of creating a threat to them.

21. Although I accept that it is probable that the authors' first language is not English and that therefore there is every possibility that an unintended misuse of words might give rise to an equally unintended meaning, the sentence as composed bears a perfectly sensible meaning and, whilst it may not immediately be apparent to the average reader how the plaintiff could realise his alleged objective of threatening the Muslims in Hong Kong by establishing a firmer friendship with the communists, I have no doubt that he would under-stand the sentence to bear that meaning.

22. Thus the allegation goes beyond asserting that the plaintiff is a hypocrite who cynically abuses his office in a religious association to further his personal and business ambitions. He also seeks to threaten the very community of which he claims to be the leader.

23. Paragraph 4(k) of the statement of claim, which appears to relate specifically to this part of the article, does not state that it involves an assertion that the plaintiff's purpose was also to threaten the Muslims in Hong Kong. However, paragraph 4(b) pleads that the words in the entire passage meant and were intended to mean that "the plaintiff used his position in the Muslim community in Hong Kong and as Chairman of the Management Committee of the Kowloon Masjid (Mosque) contrary to the interests of and so as to present a threat to the Muslim Community in Hong Kong".

24. I am therefore of the view that the pleadings are wide enough to include the meaning that the plaintiff "prepared to sell the Association's premises" not only for the sake of establishing a firmer friendship with the communists but also with the object of threatening the Muslims in Hong Kong.  In this connexion I should add that Mr. Barlow did not contend that the plaintiff's pleadings were insufficiently wide to cover this point.

25. In my view the passage complained of is clearly defamatory in that it portrays the plaintiff as a contemptible hypocrite. It reflects on his character and tends to lower him in the estimation of right thinking members of society generally.

26. Only three witnesses gave testimony. They were the plaintiff and the two defendants. I propose dealing with the material aspects of their evidence during the course of the following analysis of the defences raised by the defendants.

Qualified Privilege

27. The class of statement in respect of which the defendants claim qualified privilege is that made in the discharge of a public duty concerning a matter in which they have a legitimate interest.

28. Plainly it is in the public interest that persons should be permitted to speak freely on occasions when it is their duty to speak and to tell all they know or believe. This public convenience outweighs considerations of injury caused to private citizens as a result of the publication of a charge that is untrue. Public convenience prevails over private interests provided the person making the publication does so honestly and without malice.

29. The defendants claim that they were under a social, moral and religious duty or any one of those duties to publish the views of Muslim correspondents, including the words complained of, to the Muslim community in Hong Kong who had a like duty and interest, or both, to receive them. They claim that it is an express teaching of the Koran to expose munafiqin.

30. Mr.Chan submitted on behalf of the plaintiff that there is no authority for the proposition that the duties recognised by law extend to religious duties.

31. The principle enunciated by Parke B in Toogood v Spyring (1834) 1 CM & R at p. 193 is that:

"In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another, and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty whether legal or moral, or in the conduct of his own affairs, in matters where his own interest is concerned. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society." (my emphasis).

32. No doubt many a religious duty is also a moral duty but it does not follow that it is always so. For example, the average member of society does not regard a religious duty not to eat meat on Fridays to be a moral duty applicable to society at large. Unless therefore the religious duty also happens to be a generally recognised legal or moral duty it is not one which receives the protection of the law for the purpose of qualified privilege.

33. It is true that the author of the 11th edition of Winfield and Jolowicz on Tort expressed the following view at page 326:

"It would seem, although the English authorities are somewhat discordant, that a clergyman who prays for, or preaches at, another person for some sin which the clergyman expressly or impliedly alleges against him, has no privilege. No doubt all men are sinners, but an admission of general iniquity is one thing, an accusation of personal sin is quite another, and the proper way for a pastor to rebuke it is in private and not in the pulpit, unless indeed public admonition of sin is one of the tenets of the particular form of worship which he professes and the plaintiff has become a member of his congregation on that understanding." (My emphasis)

34. The author does not cite nor has counsel for the defendants been able to find any authority for the last proposition in this passage.

35. Reference was made during the course of evidence to various verses and footnotes in an English translation of the Koran, and particular reliance was placed on verses 60 to 62 in aura XXXIII at page 1127 of the translation and on footnote 3768. There reference is made to hypocrites, whom the footnote refers to as "men who pretended to be in Islam but whose manners and morals were anti-Islamic":

"We shall certainly stir thee up against them. Then will they not be able to stay in [the City] as thy neighbours for any length of time."

36. The city referred to is stated in the footnote to be the Prophet's City.

37. I am asked to accept that these verses operate as a general injunction to all Muslims, wherever they may be, to expose hypocrisy, and presumably, if they are followed to the letter, as a command to seize and slay all hypocrites.

38. The 1st defendant claims to understand that the Koran enjoins all Muslims to expose munafiqin and that he conceives it to be a religious duty to do so. The plaintiff testified, that he was unaware of any such duty having been imposed by the Koran. He readily agreed, however, that if he were satisfied that a person was truly a munafiqin he would first seek to persuade him to see the error of his ways and to desist from being munafiqin, and that if that person failed to do so, the plaintiff would expose him.

39. Although I approach the interpretation of the Koran with trepidation and circumspection, I find myself unable to extract from the passages cited to me a religious injunction as general as that for which the defendants contend. Certainly the seizure and slaying of hypocrites does not seem to be, nor has it been proved to be, a religious command of general application. If it were, it would clearly be contrary to public policy and indefensible in the eyes of the law. Nor indeed has it been proved to me that the apparent command to drive hypocrites out of the Prophet's City is of any general application.

40. What remains is a supposed inference that it is a religious duty for all Muslims to expose hypocrites. Although it is a fair inference from these verses that the Koran approves of the exposing of hypocrites, I am far from satisfied that it asserts it to be a positive religious duty to do so. Moreover, notwithstanding the opinion expressed in Winfield and Jolowicz, I am unable to accept the proposition that a duty recognised by the law may be a religious duty as distinct from a legal, social or moral duty.

41. In Stuart v Bell [1891] 2 QB 341 and Adam v Ward [1917] AC 309 it was accepted that the duty may be legal, social or moral. It is equally clear from the cases that not only must there be a duty cast on the defendant to make the communication but that the person who receives it must have an interest in hearing it. That interest must be one which is a matter of substance apart from its mere quality as news. It must not arise simply as a matter of gossip or curiosity. Moreover, it does not avail a defendant that he honestly and reasonably believed that he was under a duty to make the communication or that the person to whom he made it had an interest in the subject matter, if in fact he was not under a duty to do so or the other person did not have an interest in receiving the communication.

42. It follows that where the communication is unnecessarily made to persons beyond those who have an interest the defence of qualified privilege fails. Thus it is incumbent on a person who seeks to exercise the privilege to take all necessary or reasonable means to ensure that the publication does not go beyond the exigency of the occasion. If he does so and the mode of publication is shown to be reasonable in all the circumstances of the case, the defence will not fail simply because the libellous matter was also communicated to persons not included within the privilege.

43. Assuming that the defendants were under a legal, social or moral duty to communicate the information in the article complained of, the question would then arise whether they were justified in publishing it in the manner in which they did.

44. The defendants do not claim that the public at large had an interest in receiving the communication. Their pleading specifically confines the category of persons having an interest or duty to receive it as being the people of the Muslim community in Hong Kong. Indeed Mr.Barlow accepts that only in the rarest of cases would the privilege extend to publication of libellous matter in a newspaper.

45. That this is so was made clear as early as the case of Brown v Croome (1817) 2 Stark 301 where Lord Ellenborough stated that unless it could be shown that publication in a newspaper was "the only possible means" "the only effectual mode" of communicating the information the defence of qualified privilege would fail.

46. As Slesser LJ said in Chapman v Ellesmere [1932] 2 KB 431 at 467:

"I am unable to find in the authorities any reason to suppose that the law has protected a general publication in cases where there is only a sectional interest and a consequential duty to inform only a part of the public. This was the view indicated as regards this very publication (the Racing Calendar) in Hope v L'anson ((1901, 18TLR 201 at 205), where Collins M.R. said: 'The decisions were not of such general public interest as to make the occasion privileged; the decisions were of interest to a section of the public - those interested in racing matters - but they were not of interest to the public as a whole.'"

"There remains the question whether the plea of privilege can afford protection to the defendants in respect of these paragraphs. It is said that it was a matter of public interest, that it was the duty of the news agencies and of the Times to give to their clients and readers information that was of interest to all racing people, to all the betting public, to all who stand outside these two classes, but yet take an interest in the sport of horse-racing, and in particular in the maintenance of its honour and freedom from corrupt practices - the practice of drugging horses for races having at that time attracted much attention. These are strong arguments. But though the vehicle of the public Press has been held to be a proper and protected one, so as to defeat a claim for libel, where it has been used 'as the only effective mode' to answer a charge which had already received as wide a circulation (see Adam v.Ward and Brown v. Croome), there is no authority which protects the statement in the newspaper, where it is made not in answer, but as a fresh item on which a general interest, as distinguished from a particular interest already aroused, prevails."

"So far as regards the Times Publishing Company, it may in one sense be true to say that they owe a duty to their readers to publish any and every item of news that may interest them. But this is not such a duty as makes every communication in their paper relating to a matter of public interest a privileged one. If it were, the power of the Press to libel public men with impunity would in the absence of malice be almost unlimited."

47. The authors of Gatley on libel and Slander 8th edition observe at paragraph 560:

"The reply to an attack publicly made may itself be made in the press, and it may be the defendant's duty to defend another in this way, but it is now the general rule that the law does not recognise an interest in the public strong enough to give rise to a duty to communicate in the press. Such a duty has been held to exist on special facts, but there is no general 'media privilege' at common law."

48. There is however a distinction between a newspaper available to the public generally and one which is available only to a particular class of persons. This was clearly stated by the Supreme Court of New South Wales in Morosi v Mirror Newspapers Ltd. [1977] 2 NSWLR 755 at 779:

"It must be emphasized that it is with publication to the public at large that the present appeal is concerned. There can be put to one side publications in newspapers which are truly enlarged circulars, not available to the public generally, but only to particular classes of persons. Different considerations apply to these publications. Thus, in Wells v. Croskery, allegedly defamatory material was published in a newspaper circulated to members of a trade union, and in reprinted form was published to other union officials and members. The plaintiff claimed that the defamatory material referred to him and would be so understood, but he was defeated by a plea of qualified privilege. In such a case, it is not necessary to consider whether the duty or interest required to be established related to the whole community; it is sufficient if it is shown to exist in respect of the persons to whom the publication is made. Those persons are identified, and the necessary duties or interests can be looked for with some feeling of confidence. This is not so where the newspaper is on sale to the public generally, whether the newspaper has a very limited circulation or a very wide circulation: see, e.g. Standen v. South Essex Recorders Ltd; Cutler v. McPhail."

49. The last case cited in the above extract concerned two letters written by a ratepayer about a member of a borough council which the latter alleged were defamatory of him in his office of councillor. One of the letters was sent to another member of the council and the other to the editor of a local magazine which was the official organ of a voluntary association of residents in the area and was on sale to the public at bookstalls within that area. In holding that the publication of the letter to the magazine was not privileged Salmon J, as he then was, said:

"In my judgment, the letter written to Edward Buckle is privileged. I think that the defendant had an interest in writing to him; he was a councillor and was obviously interested in the same topic as the defendant, namely, building development in the Pinner area. In my view, however, the letter published in 'The Villager' is not privileged because the publication is too wide. So far as I know, there is no authority in which a letter published in the press has been held to be privileged, except when it was published as a matter of duty, as in the case of Adam v. Ward, or where it is published by a defendant in answer to a public attack which had been made upon him.

It is no doubt true that all the members of the Pinner Association, whose journal 'The Villager' is, were deeply interested in the subject-matter of the defendant's letter, as he was himself; but this publication, according to the evidence, is on sale at the book-stalls in Pinner and Harrow - anyone can buy it, and I do not consider that such a publication is privileged; no doubt it does concern a matter of public interest and accordingly fair comment, if made out, would be a good defence.

As for the publication to the editor, since it was clearly intended to be republished in 'The Villager' and put on sale to the public, I think that the privilege which might otherwise attach is destroyed: no doubt fair comment may also be a good defence to this publication.'

50. The 1st defendant testified that the Herald was strictly limited in its circulation to Muslims in Hong Kong and overseas, and that it was posted only to those who applied to have their names placed on a mailing list and whom the 1st defendant was satisfied were Muslims. The remaining copies for distribution were placed in areas of the mosques in Hong Kong to which only Muslims had access.

51. Daring the course of the 1st defendant's evidence the plaintiff applied for an order that the defendants give discovery of the Herald's mailing list. The defendants resisted the application on the basis that the plaintiff might somehow make improper use of the list. They were content, however, to hand it to the plaintiff's legal advisors on an undertaking that they would not show it to the plaintiff. This offer was clearly impractical as the plaintiff's advisors would thus have been unable to take instructions on the list. I therefore ordered that the defendants give discovery of the list without any condition that it be withheld from the plaintiff.

52. Having thus obtained the list counsel for the plaintiff cross examined the 1st defendant on its contents. It was clear that the 1st defendant was unable to explain satisfactorily how he could identify the persons on the list as being Muslims. When confronted with entries on the list that showed that the Herald was sent to the South China Morning Post, H.K.T.V.B. News Department, Pakistan International Airlines and Director of Student Activities of the Chinese University as well as to named persons, the 1st defendant gave a most implausible explanation. He said that two Muslims, one of whom was employed by the South China Morning Post and the other by the HKTVB News Department, had requested him to send the Herald to them at those places without specifying their names on the wrappers. When questioned as to how in these circumstances each monthly issue would reach them, the 1st defendant replied that both persons had told him that the staff at their respective workplaces would know for whom it was intended.

53. An examination of the mailing list reveals that wherever a private address is given, the name of the occupant is also provided. Where the name of an intended receipient does not appear on the wrapper, it seems far more likely that the contents would reach him if posted to his residential address rather than to his place of work. It is therefore remarkable that both Muslims who allegedly requested that the Herald be sent to them at their place of work should also have given instructions to the 1st defendant to omit any reference to their names on the wrappers. I do not accept that it was sheer coincidence that both persons happened to be employed by an organ of the news media.

54. As to the Pakistan International Airlines, the 1st defendant testified that the manager had requested him to place only the name of the airline on the wrapper. He added that the manager would not permit distribution of the newspaper because not only did it contain a prayer timetable which he would need but it might also feature an article that was critical of the Pakistan Government. His explanation as to why the Herald was sent to the Director of Student Activities of the Chinese University was that a group of Muslim students from Malaysia who were studying at the University had asked him to send them one copy of each edition by addressing it to the Director.

55. I find these explanations and the manner in which the 1st defendant gave them to be totally unsatisfactory. I do not believe him.

56. Moreover, I am unable to find any good reason why the 1st defendant should restrict the circulation of the Herald to Muslims. There was evidence that when non Muslims visited a mosque in Hong Kong they received preaching on the Muslim religion. Notwithstanding the 1st defendant's view that tours of non Muslims to the prayer hall of a mosque was unacceptable he did not convey the impression that he was opposed to the proselytising of non Muslims.

57. I am completely satisfied that the 1st defendant was at pains to assert that the Herald was circulated only to Muslims so that he would not lose the protection of qualified privilege. He gave me the distinct impression that he was tailoring his evidence not only to fit the defences he was endeavouring to set up but also to overcome difficulties with which he was occasionally confronted in cross examination.

58. In my judgment the communication of the article complained of is not protected by qualified privilege. There was no legal, social or moral duty on the defendants to publish it nor was the publication restricted to such persons or group of persons who had a duty or interest to receive it. The defendants intended that the Herald be circulated beyond the Muslim community in Hong Kong and Muslim subscribers overseas to non Mulsims in Hong Kong and, as the evidence disclosed, did in fact so circulate it.

59. I have little doubt that they had hoped that at least some articles in the Herald, particularly those of local flavour and of a provocative nature would be published by the South China Morning Post and HKTVB News Department and thus achieve a breadth of publication and impact for greater than could be attained by the Herald itself.  I also think it likely that the 1st defendant sent it to the Director of Student Activities in the hope that he might make use of it in such a way that Islamic views, particularly those held by the defendants, would be communicated to students in general at the University.

60. The reason for the publication to Pakistan International Airline is not so apparent but I have no doubt that the Herald was not sent there for the sole use of the manager but was intended for general circulation.

Justification

61. In order to consider the defence of justification it is necessary first to analyse the passage complained of and to isolate the statements of fact from the commetns. In so doing I bear in mind that where the defendants have pleaded that a particular statement is one of fact, they may not rely on it as a comment even though it might appear to be such.

62. The defendants pleaded that with the exception of the words "was so daring to" this sentence is a statement of fact. Mr. Chan accepts that those words may amount to comment. In so far as it alleges that the plaintiff claimed that he was sent by Allah to manage the Kowloon Mosque the sentence is clearly a statement of fact. The remaining words are comment.

63. The defendants pleaded that this is comment. Mr. Chan contends, however, that it is a statement of fact in that it is an allegation of the plaintiff's intention or purpose in making the claim.

64. In paragraph 702 of Gatley reference is made to the South African case of Crawford v Albu [1917] AD 102 at 106 where Bristowe J. said:

"… an inference or comment may take the form of a statement of fact. The question is not whether the words which the defendant used stated a fact or not, but whether, reading them in the environment, the impression conveyed to the audience was that the defendant was merely making a bald statement [.....] or that [what he said] was an inference which the speaker thought should be drawn from certain facts which he mentioned or referred to."

65. Were the words in this part of the defamatory statement merely used to describe an inference which the writer drew from the fact which he had previously stated, namely that the plaintiff had claimed and is claiming himself to be the leader of Muslims in Hong Kong? In my opinion they were. I think that a reader would understand these words to be an expression of the writer's opinion as to the reason why the plaintiff has made and is making the claim.

66. The defendants pleaded that this is comment. Mr. Chan contends that it is a statement of fact. Again I think that this is a comment. I am of the view that a reader would understand these words to be an expression of the writer's opinion as to the reason why the plaintiff made the various claims previously referred to and did what is stated in the previous sentence which reads as follows:

"He also pretended to be the Hong Kong leader and 'represented' Hong Kong Muslims to attend the Sino-British Joint Declaration official ceremony at Peking."

67. Mr. Barlow observed that it is somewhat strange that having alleged that the earlier passage "he claimed and is claiming himself to be the leader of Muslims in Hong Kong" is defamatory, the plaintiff has not alleged that this subsequent passage is likewise defamatory. There is, of course, a distinction between claiming and pretending. Claiming requires a positive assertion whereas pretending does not necessarily involve making an assertion but may be the passive acceptance by the pretender of another person's mistaken view that his status is more elevated than it really is. The distinction, however, is subtle.

68. When asked in cross examination why he had not complained of that sentence, the gist of the plaintiff's reply was that he considered it impractical to complain of every matter on which he considered complaint to be justified and that he had sought to confine his complaint to a few important issues. When it was then suggested to him that in reality there was virtually no distinction between the word "claimed", to which he had objected, and the word "pretended", to which he had not objected, the plaintiff replied that he had not made so detailed an analysis of the matter.

69. Throughout the course of his evidence, the plaintiff impressed me as a sincere and truthful witness. It is true that on occasion he tended to ramble but I took this to be a genuine attempt by him to express his feelings and to convey his bewilderment and outrage at having been made the subject of such an article. I accept his testimony and am not disposed to attach any sinister significance to the matter raised by Mr.Barlow.

70. The defendants pleaded that this is comment. Mr. Chan contends, and I agree with him, that it is a statement of fact. No previous fact is alleged upon which it can be said that this is a comment. In this connexion the example given in paragraph 702 of Gatley is useful:

"To write of a man that he is 'a disgrace to human nature' is a defamatory allegation of fact. But if the words were, 'He murdered my father, and therefore is a disgrace to human nature', the latter words appear from the context to be merely comment."

71. The defendants have not truly stated or clearly referred to any fact upon which it could be said that this sentence is based.

72. Moreover, the sentence goes beyond merely asserting that the so called ignorant Mulsims in the Association "put him up as the Chairman" because they were allured or fascinated by his wealth. The average reader would understand that to be an expression of opinion. However, the use of the words "He uses his wealth to lure" clearly conveys the meaning that the plaintiff did not adopt a passive role but had taken some unspecified affirmative action to induce the "ignorant Muslims to put him up as the Chairman". In my judgment a reader would understand the sentence to be a statement of fact.

73. The defendants pleaded that this is comment. Mr. Chan, however, contends that it is a statement of fact. In my view it is comment. I think that a reader would understand this to be an expression of the writer's opinion as to the motivation of the plaintiff in using his wealth to gain office.

74. The defendants pleaded that this is comment. Mr. Chan contends that apart from the allegation of arrogance, the rest of the sentence is a statement of fact. In my view Mr. Chan is right.

75. The defendants pleaded that this is comment. Mr. Chan contends that it is a statement of fact. In my judgment there is no statement of fact upon which this sentence can fairly be said to be comment. It is a statement of fact.

76. The sentence "No daily Jama' at salat is performed in the Association prayer hall" is a statement of fact which immediately follows the allegation that the plaintiff imposes a racial policy. The plaintiff does not claim that it is defamatory.

77. The defendants pleaded that this is comment. Mr. Chan, however, contends that it is a statement of fact. In my view it is comment based on the statement of fact that immediately precedes it and that a reader would understand it to be an expression of the writer's opinion.

78. I now turn to a consideration of whether the defendants have established the truth of the statements of fact in the passage complained of.

Paragraph(b)

79. The only material placed before me in this connexion was a letter from the plaintiff to the Chairman of the Incorporated Trustees of the Islamic Community Fund of Hong Kong dated 13th September 1984 in which the plaintiff wrote of his appointment as Chairman of The 1st defendant claimed that the plaintiff had no right to guess that it was the will of Allah that he had been chosen to be the Chairman and that he was only permitted to give thanks to Allah for having attained this position. According to the 1st defendant this immodesty on the part of the plaintiff had aroused considerable anger in the Muslim community.

80. Since the 1st defendant accepts that "if something happens it is clear to a Muslim that it is in accordance with the will of Allah", it is difficult to follow his logic that the plaintiff had no right to guess that it was Allah's will that he had been chosen to be chairman of the committee. I consider that this explanation was no more than an attempt on the part of 1st defendant to overcome the problem that no witness had testified that the plaintiff had claimed that he had been sent by Allah. I accept the plaintiff's evidence that there is a clear distinction between "being sent by Allah" and" the will of Allah" and am satisfied on the evidence that there is no truth in the assertion that the plaintiff had claimed to have been sent by Allah.

Paragraph (c)

81. In relation to the statement of fact that the plaintiff had claimed and is claiming to be the leader of the Muslims in Hong Kong, the defendants principally relied upon several newspaper articles, a, report of the Chairman of the Incorporated Trustees of the Islamic Community Fund of Hong Kong and evidence that the plaintiff had attended various functions with officials of the Peoples Republic of China.

the Management Committee of the Kowloon Mosque:

"I believe it was Allah's will that I was elected Chairman of the Management Committee."

It is immediately apparent that what the plaintiff actually said in the letter is not what the article complained of alleges that he claimed.

82. The plaintiff frankly admitted that he had verbally expressed to others his belief that his election to the office of Chairman was the wish of Allah. It was not disputed that Muslims believe that the last person with the right to claim that he had been sent by Allah was the Prophet Mohammed. Thus to a Muslim it would be a monstrous untruth and a supreme act of arrogance for someone to claim that he had been sent by Allah.

83. The plaintiff testified that all events are predetermined by Allah and that every good Muslim would accept that this is so. Indeed, the 1st defendant's evidence was to the effect that apart from sin, which occurs as a result of the exercise by man of his free will, all events happen in accordance with the will of Allah.

84. According to the 1st defendant, however, there is no distinction between "sent by Allah" and "Allah's will", and that no Muslim would claim that his own personal achievement was due to Allah's will. Instead it is customary before the achievement is attained to say "Inshallah", which means, "If Allah is willing". After the event has occurred it would be appropriate to say "Praise to Allah" or "Thanks to Allah". Thus to say "It is Allah's will" for having received some favour is highly immodest, and by using this expression the plaintiff had sought to elevate himself to the level of a prophet.

85. In none of these newspaper articles is it stated that the plaintiff claimed to be the leader, or even a leader, of the Muslims in Hong Kong. I do not propose to give a detailed account of the various references to him in these articles. Suffice it to say that he is referred to in terms that make it clear that those responsible for the articles considered him to be either the leader or a leader of the local Muslim community.  No doubt this was due to the fact that the articles were mainly concerned with the activities of a group comprised of representatives of six major religions in Hong Kong of which, apart from the plaintiff, most, if not all, are accepted to be the leaders of the religions they represent. Apparently the Muslim community in Hong Kong does not have an official leader. Whilst he accepted that this is so, the 1st defendant claimed that if anyone could be called a leader it would be the three local Immams.

86. The plaintiff testified that these articles related to the Secretariat of Six Religious Leaders Colloquium. He said that he had been invited to attend the meetings of the Secretariat in his capacity as Chairman of the Chinese Muslim Cultural and Fraternal Association and that the object of the meetings was to examine ways in which assistance might be given to various groups in society such as the aged and the youth of Hong Kong. Matters of religious doctrine were not discussed.

87. In the letter to the Incorporated Trustees of the Islamic Community Fund of Hong Kong, its Chairman, who had visited Peking and had made a courtesy call on a person described as the Deputy Director of International Department of China Islamic Association, reported that he had been informed by him that "Mr. Kassim Tuet (the plaintiff) in his capacity as the leader of the Muslims in Hong Kong had visited Beijing a few months ago."

88. I see no reason to disbelieve the plaintiff's evidence that he had been invited to attend the meetings of the Secretariat as Chairman of the Chinese Muslim Cultural and Fraternal Association. If, as the 1st defendant agrees, there is no formal leader of the Muslim community in Hong Kong, it is not surprising that the Secretariat would invite the plaintiff to join its discussions. Likewise it is not surprising that the press would conclude that because the other religious groups in the Secretariat were represented by their leaders, the plaintiff was the leader of the Muslims in Hong Kong.

89. I do not think that a statement in a report by the Chairman of the Incorporated Trustees to his Board of what he had been told concerning someone else's perception of the role in which the plaintiff had visited Peking takes the matter any further. The fact is that there is no evidence that the plaintiff had actually made the claim alleged. I note also that there is nothing in the report that suggests that it was inappropriate to refer to the plaintiff in such a capacity.

90. Indeed the plaintiff readily conceded that many people con-sidered him to be the leader of the Muslims in Hong Kong and surmised that this may have been due to his activities on behalf of the Muslim community. He even expressed the hope that those who were aware of his work would consider him to be a leader. He emphatically denied, however, that he had ever claimed to be a leader.

91. I do not consider that it was incumbent on the plaintiff to take steps to remedy any false impression that people might have gained from reading the newspapers that he had claimed to be the leader or a leader of the Muslim community. Since nowhere was it stated that he himself had made such a claim, there was nothing for him to correct. By saying that he was the leader of the Muslims the newspapers were merely expressing their own opinion. I do not think that it would be reasonable to expect the plaintiff to have taken affirmative action to dispel this view.

Paragraph (f)

92. Although there was evidence that the plaintiff had held office as the Chairman of the Chinese Muslim Cultural and Fraternal Association for more than twenty years there was no evidence to suggest that he had in any way made use of his wealth to gain office, let alone used it to "lure ignorant Muslims to put him up as Chairman". This is nothing more than a wild allegation completely unsupported by any tangible evidence.

Paragraph (i)

93. There is also no evidential foundation for the allegation that the plaintiff always claims to be a "Successful Man". He is undoubtedly wealthy and has been highly successful in business. He has, no doubt, acknowledged this fact. The clear meaning behind the allegation, however, is that the plaintiff constantly boasts of his business achievements.

Paragraph (j)

94. The articles of Association of the Chinese Muslim Cultural and Fraternal Association provide that membership is restricted to persons of Chinese race.

95. I accept the evidence of the plaintiff that this was one of the rules of the Association both before it was incorporated and before he became a member. The fact that he was unable to produce those earlier rules does not suggest to me that he has not told the truth about this matter. What is important is that there is no evidence to show that he imposes the racial policy for the Association. The mere fact that he has been Chairman of the Association for many years does not justify such a conclusion.

Paragraph (k)

96. As to the allegation that "once upon a time [the plaintiff] even prepared to sell the Association's premises to a communist news agency", the defendants seek to rely upon minutes of meetings of the Association and on something that the 2nd defendant had been told.

97. The plaintiff testified that in 1981 the Committee of the Association decided that because the Association's premises were too small, steps should be taken to redevelop the site together with the adjacent site owned by the New China News Agency with a view to erecting a 23 storey building. In furtherance of the project an architect drew up plans of the proposed redevelopment. Minutes of a meeting of 13th February 1981 disclose that the plaintiff as Chairman had made a report concerning redevelopment of the two sites and that he had had a consultation with the Property Manager of the New China News Agency who had basically accepted the proposal. Following this an architect was engaged, and it is plain from a document prepared by him that his understanding was that the proposal involved a joint development and the total floor area to be retained by each party would be as set out in a list which he had prepared.

98. Minutes of a meeting of 12th June 1981 chaired by the plaintiff disclose that "it was declared that this Association was a non profit making organisation and hoped that the government could exempt us from paying tax so as to reduce the burden of the Association."

99. It was suggested to the plaintiff in cross examination that if there had been no intention to sell the premises to the New China News Agency, there would have been no need for the Association to consider the matter of paying tax. He denied that there had been any intention to sell the premises but was unable to recall the context in which the possible payment of tax had been considered. He conceded, however, that the possibility that the Association might make a profit from the redevelopment could have been discussed.

100. In re-examination his own counsel, having asked him whether he had been aware at the time that stamp duty would be payable in respect of the redevelopment, then proceeded to ask him whether he could recall what tax had been under consideration at the meeting. Notwithstanding the obvious opportunity thus offered to him to say that the tax referred to was not a profit tax but stamp duty, he candidly responded that he had no recollection of the matter.  I accept his testimony.

101. The 2nd defendant testified that many years ago he had been told by two elders of the Chinese Muslim Cultural and Fraternal Association, both of whom are now deceased, that "there was the intention of selling the premises."

102. At the time this testimony was given no objection was made as to its admissibility. Apart from this, however, it was plain that the 2nd defendant was unable to indicate when this incident occurred. I am not prepared to assume that it was contemporaneous with the redevelopment project to which the minutes of meetings referred. More to the point is the fact that, whatever may have been discussed at meetings, there was no evidence to suggest that the plaintiff himself "had prepared to sell the Association's premises to a communist news agency". He had undoubtedly been present at meetings and had participated in discussions concerning the redevelopment of the site, but even assuming that at these meetings suggestions had been made to offer the site for sale to the New China News Agency, there is no evidence that the plaintiff, who was only one member present, advanced or supported any such suggestion, let alone "prepared to sell" the premises.

103. Thus the defendants have failed completely in their defence of justification. There is no evidence that I accept that establishes any one of the statements of fact to which they have pleaded justification.

104. As none of the statements of fact on which the comments purport to have been made has been proved, the defence of fair comment must also fail. It is therefore unnecessary to make a specific finding on the allegation of malice in relation to these comments. However, I think I should make it clear that I am satisfied that none was made maliciously.

105. The 1st defendant gave me the distinct impression of being a religious zealot and I have no doubt that he genuinely, even if mistakenly, believed that the statements of fact in the article were true and that the comments based on them were entirely justified. It seems to me that he disapproved of what he conceived to be the high profile assumed by the plaintiff both in Muslim affairs and affairs generally. He readily concluded from newspaper reports that the plaintiff had been making immodest claims as to his position in the Muslim community. It seems likely that because his views on Muslim affairs diverged from what he conceived to by those held by the plaintiff, he all too readily interpreted the plaintiff's actions in an unfavourable light.

106. Although I am sure that the 1st defendant genuinely held the views expressed in the article complained of, I have the gravest doubt that the letter he said he had published had in fact ever existed.

107. His testimony in this regard was most unsatisfactory. He claimed that he would not publish a letter unless he was satisfied that it had been composed by a Muslim, and that to this end he required the sender to supply his or her name and address. However, he insisted that he did not require these details for the purpose of reference back to the writer in the event that the content of the letter was challenged. He claimed that he would judge whether the writer of a letter was a Muslim from the name supplied. According to him he would publish the letter if the name appeared to be a Muslim name and the contents of the letter concerned Muslim affairs and did not arouse his suspicion that they had been composed by someone other than the purported author. He also claimed that the letter in question had been signed in English script by two persons whose names he could recall and by three others whose names appeared to be written in either Arabic or Urdu, neither of which scripts he was able to understand. He could remember that the senders supplied an address in Wanchai Road, Wanchai, but was unable to recall the actual street number.

108. The 1st defendant also explained that because of shortage of storage space and the fact that he was not a professional newspaper editor, he disposed of all letters received from correspondents after he had proof read the issue of the Herald in which they were to be published. Moreover, he had thrown away the letter with which this action is concerned just before it had been published in the Herald, but, somewhat surprisingly, had retained material which he claimed its authors had sent with it and which he used to support his defence.

109. I do not accept the 1st defendant's testimony on these matters. It seems quite likely that the letter did not originate from the five persons whom he claimed had sent it, but that he had composed it himself as a genuine reflection of his own views and perhaps those of some others in the Muslim community.

110. The 2nd defendant can neither speak nor read English and I am satisfied that, apart from being registered as the publisher of the Herald and performing menial tasks to assist in its publication, he played no part in making editorial decisions and may have been unaware of what articles would appear in each edition of the newspaper. In view of his inability to read English I am not persuaded that by leaving editorial decisions to the 1st defendant he acted recklessly. I therefore conclude that he published the letter in question without malice.

Damages

111. The Herald has a small circulation in Hong Kong. According to the defendant there were 287 names on the mailing list in January 1985 and the total number of copies printed for that edition was 3000, of which he retained approximately 10. There was no evidence nor did there seem to be any inherent likelihood that the libel had been published to any person other than members of the local Muslim community and overseas Muslims whose names appear on that list.

112. I bear in mind, however, that publication of a libel to members of a small community within which the victim has achieved prominence and with whom it would be reasonable to assume he was closely connected, might well bring greater humiliation and discomfort to him than would a much wider publication of a libel bring to a less prominent man.

113. The plaintiff expressed the view that although the article would have had little effect on those people who knew him well, it would have adversely influenced those who were not so well acquainted with him.

114. There was no specific evidence as to what proportion of the Muslim community knew him well but I think that it would be fair to assume that because of his long tenure of office as chairman of the Association and the active part he has played in community affairs, he would be widely known in that circle and that of those who read the Herald there may be many who, whilst familiar with his name and activities, did not know him personally and might therefore have formed an unfavourable view of him as a result of the article.

115. He claimed that although in 1985 there had been no decline in the number of people who visited him in his capacity as chairman, no one had so visited him in 1986 and 1987. Since the article was published in January 1985 I am not disposed to draw any firm conclusion from this. The period between publication and the fall off in the number of visitors is so long that it is likely that this was due to other reasons.

116. The plaintiff is a successful businessman and a member of the Basic Law Consultative Commission. As such he is a reasonably well known figure outside Muslim circles. There can be no doubt that his feelings have been deeply wounded by the article and that he must have suffered anxiety in bringing this action to clear his name and rectify the damage to his reputation. Moreover, the defendants have persisted in their defence of justification when it should have been plain to them at least at an early stage of the hearing that there was no concrete evidence to support this defence.

117. Since no witness was called to testify that the plaintiff had claimed to be the leader of the Muslims in Hong Kong, it seems clear that the defendants were content to cling to their belief that because press articles had stated that he was the leader, he must have actually claimed to be such. Notwithstanding that Mr. Barlow conducted his cross examination of the plaintiff in a scrupulously fair manner and studiously avoided making wounding allegations, the conduct of the defendants in seeking to justify the libel is a matter for aggravation of damages.

118. There are very few cases in Hong Kong from which I am able to draw assistance in deciding the appropriate level of award in the present case. Bearing in mind all the factors to which I have referred I conclude that a sum of $50,000 would be an adequate solatium and at the same time take into account the conduct of the defendants.

119. Accordingly I give judgment for the plaintiff in that sum.

Representation:

Mr. K.S. Edward Chan (Stevenson, Wong & Co.) for the plaintiff

Mr. Barrie Barlow (Chow, Griffiths & Chan) for the 1st and 2nd defendants