Mitsuoka Tomotari v. Kao International Ltd

HCA 2538/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2538 OF 2005

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BETWEEN

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Before: Hon Fung J in Chambers (Open to public)

Date of Hearing: 23 January 2007

Date of Decision: 23 January 2007

Date of handling down Reasons for Decision: 25 January 2007

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REASONS  FOR  DECISION

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1.There were 2 summonses before me:

(1)     The plaintiff’s summons under O.18, r.19, RHC to strike out the Defence as frivolous, vexatious and an abuse of the legal process;

(2)     The defendant’s summons under O.23, r.1(a), RHC for security for costs.

2.The plaintiff is suing for:

(1)     libel;

(2)     false attribution of authorship.

3.At the hearing, Mr. Chong for the plaintiff clarified that he was not seeking to strike out the entire Defence, but only paragraph 10 pleading justification, and paragraph pleading 11 pleading fair comment.  He conceded that whether the publication was capable of any defamatory meaning, and the issue of false authorship should be decided at the trial.

4.After hearing counsel, I struck out paragraphs 10 and 11 of the Defence, and dismissed the summons for security for costs.  I now give my reasons.

Background

5.The plaintiff claims to be a renowned researcher in intestinal bacteriology.  Amongst his credentials, he is Emeritus Professor of the University of Tokyo, Recipient of the Japan Academy Award 1988, member of the International Subcommittee on Bifidobacterium and Lactobacillus, and author of the books including “Revolution of the Intestine” and “Planning of Intestine for the Prevention of Aging”.

6.The defendant is a wholesaler and distributor of health products and supplements in Hong Kong, including the product “BCS” or “BCS Bowel Cleansing System”. 

7.In March 2005, the defendant published in its “Miyura Health Book – Issue 31” an article in Chinese entitled “The Mystery of Intestinal Ageing”.  The article referred to quotations from “Revolution of the Intestine” and “Planning of Intestine for the prevention of Aging”.  The contents included that “intestinal aging” is linked to general bodily aging, constipation, diarrhea and dry skin and fat belly.  The cause of “intestinal aging” is linked with the balance of “good bacteria” and “bad bacteria” in the intestine.  Amongst the good bacteria, “BCS 善玉菌 (Bifidus)”is one of the strongest.  At this stage, there is no authoritative translation of 善玉菌，and I shall literally call it “Good Jade Bacteria”. 

8.The article concluded with the section headed “The method of maintaining intestine which makes 10 years younger” which stated:

“The world renowned authority in intestinal bacteriology Dr. Mituoka Tomatari has proved that the biggest enemy of the bad bacteria which would cause early ageing to people and formation of cancer causing substance is BCS Good Jade Bacteria (Bifidus).

Dr. Mituoka Tomatari advocates that daily replenishment of BCS Good Jade Bacteria can cleanse the intestines and this effective means of maintaining intestine makes human being 10 ten years younger.  This was also endorsed by world renowned intestinal bacteriology experts and over 100 medical articles.”

9.Thereafter, a photograph of the plaintiff was attached, with his credentials referred to above and the title of his 2 books.

10.Following the article on the same page, there was an advertisement promoting the product BCS.

The claim

11.The plaintiff complained that the sting of the libel was:

(1)     He had conducted research into the defendant’s product BCS;

(2)     He had endorsed the Defendant’s product BCS; and

(3)     He had advocated for daily consumption of BCS.

12.The plaintiff said those were all untrue, and the article carried with it a defamatory implication that the plaintiff, a renowned researcher and authority in intestinal bacteriology, had sold his reputation in return for financial gain to promote the defendant’s product.

The defence

13.The Defence denied the imputation referred to above, and that there was any defamatory meaning.  Further, in justification, it was pleaded that the facts, matters and information contained in the article principally emanated from the research and findings of the plaintiff which could be found in his 2 books “Revolution of the Intestine” and “Planning of Intestine for the Prevention of Ageing”.  In fair comment, it was pleaded that the defendant’s product contained the ingredient bifidus, and for the sake of promoting and advocating health and hygiene for the general public, the defendant honestly and truly believe that regular intake of the defendant’s product would be beneficial to human being and have the effect of intestinal cleansing, bowel cleansing, improving skin complexion, etc. as stated in the article and make one look 10 years younger and healthier.

14.In answer to further and better particulars sought of the Defence, the defendant admitted that BCS did not appear nor was extracted from the plaintiff’s 2 books cited in the article.

Discussion

15.Defamatory or otherwise, on a plain and naturally reading of the article, it is clear that the defendant alleged that the plaintiff had proved that BCS Good Jade Bacteria (Bifidus) was the biggest enemy of early ageing and cancer forming substance, and that the plaintiff advocated the daily replenishment of BCS Good Jade Bacteria (Bifidus).  Mr. Chong submitted that was the imputation the defendant must justify, and not merely that the plaintiff had reached into bifidus and advocated its goodness.

16.Gatley on Libel and Slander (10^th Ed., 2004) at p. 274 para. 11.8 states that:

“Justification required of and limited to the imputation.  It is the imputation contained in the words which has to be justified, not the literal truth of the words, nor some other similar charge not contained in the words.  This has two consequences.  First, the defendant may succeed in a plea of justification even though what he has said may be inaccurate in a number of respects. Secondly, he may not, under a plea of justification, prove the truth of other facts damaging to the claimant’s reputation, even if they are in the same sector of the claimant’s life, and would be no less damaging to the claimant’s reputation. The issue of what may be advanced under a plea of justification is therefore closely linked to the meaning or meanings which the defamatory words are reasonably capable of bearing.”

17.Mr. Chong also referred to Associated Leisure Ltd. (Phonographic Equipment Co., Ltd.) & ors. v. Associated Newspapers Ltd. [1970] 2 QB 450, 456 per Lord Denning MR:

“… I will read from Gatley on Libel and Slander, 6^th ed. (1967), p. 462, para. 1046:

A defendant should never place a plea of justification on the record unless he has clear and sufficient evidence of the truth of the imputation, for failure to establish this defence at the trial may properly be taken in aggravation of damages.

I have always understood such to be the duty of counsel.  Like a charge of fraud, he must not put a plea of justification on the record unless he has clear and sufficient evidence to support it.”

18.Mr. Chong submitted that while admitting that BCS never appeared in the plaintiff’s 2 books, the defendant still nevertheless pleaded in justification that the allegations in the article emanated from the plaintiff’s 2 books. It was without factual basis, and hence frivolous or vexatious, and an abuse of the process of the Court.  Mr. Chong also submitted that the article purportedly cited direct quotes from the book with page references which were non-existent.

19.As to fair comment, Gatley at p. 299 para. 12.14 states that:

“Facts upon which comment is based must be true.  If the facts stated in the publication as a basis for comment are themselves defamatory, the defendant must plead justification or privilege in relation to them, and fair comment will be no defence. However even if they are not defamatory they must, subject now to s.6 of the Defamation Act 1952 (and again putting aside cases of comment on facts stated on a privileged occasion) be shown to be true: a writer may not suggest or invent facts, or adopt as true the untrue statements of fact made by others, and then comment on them on the assumption that they are true.  If the facts upon which the comment purports to be made do not exist, the defence of fair comment must fail.  Comment based on matters of opinion only, which may or may not be true, equally affords no defence.”

20.Mr. Chong submitted that the defendant may only comment on existing fact, and as the plaintiff never mentioned BCS, any direct linking of the plaintiff with BCS is not fair comment.

21.Miss Ma for the defendant accepted that there must be primary facts to maintain the defence of justification and fair comment.  She said that she could not twist the facts and must concede that BCS and/or Good Jade Bacteria never appeared in the plaintiff’s 2 books. But bifidus did.  The lack of reference to BCS in the plaintiff’s books was no bar to fair comment.

22.Miss Ma submitted that the effect of the article was to say that it is important to have good bacteria in the intestine, and bifidus is good bacteria.  The defendant is an advocate of bifidus, and co-incidentally, the plaintiff is also an advocate of bifidus.  The article merely meant to be informative in quoting from the plaintiff as to the good effects of good bacteria and bifidus. 

23.Miss Ma said that the defendant did not seek to justify that the plaintiff had researched into the defendant’s product, but simply that the plaintiff had researched into bifidus.  Based on the plaintiff’s findings, the article was merely commenting on a subject beneficial to the health of the general public.  It is premature and unfair to determine that the article was untrue without extensive examination what the plaintiff said in his 2 books.

24.It is common ground that a pleading should not be struck out unless in the most plain and obvious case, and even in cases where affidavit evidence is before the Court, there ought not to be a trial on affidavits.

25.Miss Ma referred to McDonald’s Corp & anor. v. Steel & anor. [1995] 3 All ER 615, 623 where Neill LJ said that the power to strike out is a draconian remedy which is only to be employed in clear and obvious cases, and the correct approach is to consider whether or not the defendant’s case is incurably bad.

26.With respect, I fail to see what panacea Miss Ma could prescribe to the defence of justification and fair comment.  I already said that the sting of the article was that the plaintiff had proved BCS and recommended the daily replenishment of BCS.  Miss Ma accepted that the justification was not directed towards that but simply that the plaintiff had researched into bifidus.  That clearly fell short of what is specifically required, and could not be improved on as the defendant had already admitted that the plaintiff’s 2 books never mentioned BCS.  I bear in mind that it is the burden on the defendant to prove justification.  Hence, the plea of justification must be struck out.

27.As to fair comment, it was not the case that the article merely quoted from the plaintiff’s books that bifidus is good, and went on to say that BCS had bifidus as its active ingredient.  What ever comment it was, the article alleged the primary facts that the plaintiff had proved BCS and recommended its daily replenishment, facts which are untrue.  Hence, the plea of fair comment must also be struck out.

Security for costs

28.Mr. Chong accepted that the plaintiff is a ordinarily resident outside Hong Kong and is subject to the jurisdiction of security for costs.  However, he asked the court not to exercise the discretion.

29.Mr. Chong submitted that with the striking out of justification and fair comment, what remains of the Defence is putting the plaintiff to strict proof of whether the implication of the article was that the plaintiff had sold his name to commerce and advertising and it had caused injury to his reputation.  The Statement of Claim pleaded that doubts were raised by plaintiff’s colleagues, friends and internationally renowned researchers upon the credibility and integrity of the plaintiff, and whether he should continue to be respected as a researcher and scientist.  Mr. Chong submitted that if necessary, he would rely on a true innuendo with special circumstances of the circle of internationally renowned scientific researchers.

30.Mr. Chong referred to Tolley v. JS Fry & Sons, Ltd. [1931] AC 333 where the plaintiff, an prominent amateur golfer, was depicted by the defendant in a caricature as playing golf with a bar of the defendant’s chocolate protruding from his pocket.  The plaintiff succeeded in libel.  However, Tolley v. Fry was a case of true innuendo in the special circle of amateur golfers, and that the caricature was capable of bearing the meaning alleged in the innuendo as explained by the evidence of the circumstances of the publication.

31.While I am not saying that the plaintiff’s case is without merits, I cannot say one way or the other at this stage that in this day and age, remunerated liaison with commerce and industry will necessarily cause damage to the reputation of scientists and academics.  There is also the issue of the language of the publication vis-à-vis its readers.  There is no suggestion that the plaintiff’s claim will be stifled by the giving of security.  I considered that the plaintiff should give some security for costs according to the ordinary principle.

32.As a practical option, I suggested ordering costs on the striking out be to the plaintiff in any event so as to give the defendant some measure of security, and the summons for security for costs be dismissed with no order as to costs.  Mr. Chong indicated that was acceptable, and Miss Ma submitted that as the plaintiff only changed tack in not seeking to strike out the entire Defence at the hearing, some costs should be disallowed to account for wasted preparation.

33.Hence, I ordered that the Plaintiff be awarded 80% of the costs of the striking out summons in any event, and the summons for security for costs be dismissed with no order as to costs.

Mr K M Chong leading Shuni Yoneya, instructed by Messrs K M Lai & Li, for the Plaintiff

Miss Anita Ma, instructed by Messrs X J Wang & Co., for the Defendant