Dr Esthetic Product Research & Production Centre Ltd and Another v. Next Magazine Publishing Ltd and Another

HCA 2776 / 2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2776 OF 2006

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BETWEEN

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Coram: Before Deputy High Court Judge Au in Chambers

Date of Hearing: 23 July 2009

Date of Handing Down Decision: 21 August 2009

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D E C I S I O N

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A. Introduction

1.There are 2 applications before the Court:

(1) The Defendant’s application under its Summons dated 16 October 2008 for a jury trial.

(2) The Plaintiff’s applications under its 2 Summonses respectively dated 22 October and 7 November 2008 to strike out certain paragraphs of the Further and Better Particulars of the Defence, and a particular paragraph of the Amended Defence.

2.In order to understand the parties’ contentions in these applications, it is necessary to first set out below the nature of the action and the subject matter dispute to provide the proper context.

B. The action

3.This case is a libel action in respect of an article (“the Article”) published in the Next Magazine on 9 November 2006 entitled “再踢DR秀身香水搵笨” in respect of a product (“the Product”) called “秀身香水”, marketed or promoted by a beauty group called “DR醫學美容集團” (“the Group”).

4.The 1^st Plaintiff is the manufacturer of the Product, while the 2^nd Plaintiff is the registered owner of the trademark “秀身香水”. Both of them are companies within the Group.

5.Apparently, in promoting the Product, the Group suggested that using it in accordance with the direction for use as stated on the packaging box of the Product could have the effect of reducing body weight or having a “slimming effect”. The direction states that: “Spray the fragrance onto the dorsum of the hand, smell a couple of times before eating, will help to control appetite”.

6.The Article reported on the Product, and carried the following words, which the Plaintiffs now say to be defamatory:

(1) 「秀身香水搵笨」

(2) 「最近該公司再獻新猷，推出「秀身香水」，謂香味可減低食慾兼減肥，但其實全屬無稽之談。」

(3) 「DR秀身香水的包裝及瓶身，並無任何製造成份、產地及使用說明，其減肥原理亦匪夷所思。」

(4) 「胡亂訴諸權威」

(5) 「受訪者有bias(偏頗)，再者個研究係九五年做，之後無人跟進研究，並無權威。」

(6) 「秀身香水的理論違背邏輯」

(7) 「上週五，DR醫學美容集團行政經理黃錦山回覆，強調有關香水減肥的研究，在美國「結果十分可觀」，而且研究者的地位「有李國章咁高」。」

(8) 「翌日，記者約見其研究總監關先生(Jack)，直接問他香水的製造成份及減肥原理，但他以「商業秘密」為由，迴避作答。」

7.The Plaintiffs’ case is that the Words referred to them and bore the following defamatory stings:

(1) The Product is utterly devoid of scientific and/or logic basis.

(2) The Plaintiffs relied on researches/clinical test results that are biased, outdated and utterly devoid of authority.

(3) The Product could not possibly result in loss of appetite and hence reducing body-weight.

(4) The Plaintiffs are deceiving their customers.

8.The Plaintiffs further say that the Words bore the following meanings by way of innuendo:

“The 1^st and/or 2^nd Plaintiffs and/or the Group exaggerated, without basis, the status/fame of the researcher whose research was relied on by them in support of the effect of the Product.”

9.In their defence, the Defendants deny the above defamatory meanings. They further pleaded a lesser defamatory meanings (or Lucas-Box meanings) of the Article as follows:

(1) Contrary to the claim made about the Product by the Group, the Product does not have the effect of reducing body weight or “slimming effect”.

(2) The research findings used by the Group to support the claim that the Product can lead to a reduction of body weight or has a “slimming effect” are not authoritative, and cannot support the claim.

(3) The theory behind the claim that the Product can lead to a reduction of body weight or has “slimming effect” is illogical.

(4) The boss of the Group, Dr Chow Heung Wing, was reprimanded by the Medical Council of Hong Kong for professional misconduct in 2002.

10.In the Amended Defence, the Defendants also pleaded, amongst others, justification of the lesser defamatory meanings, or the defamatory meanings (“the Plaintiff’s defamatory meanings”) as alleged by the Plaintiff in the Statement of Claim. The facts and matters relied upon by the Defendants for the defences of justification are set out in (a) the Further and Better Particulars of the Defence, and (b) the Voluntary Further Particulars of the Amended Defence.

C.   The jury trial application

C1. The applicable principles

11.The parties do not dispute that the following general principles are applicable to the determination of whether there should be a jury trial in a libel action.

12.Section 33A(1) of the High Court Ordinance (Cap 4) provides as follows:

“(1) Where, on the application of any party to an action the Court of First Instance is satisfied that there is in issue –

(a) a claim in respect of libel, slander, malicious prosecution, false imprisonment or seduction; or

(b) any question or issue of a kind prescribed for the purposes of this paragraph by rules of court,

the action shall be tried with a jury, unless the Court is of the opinion that the trial requires any prolonged examination of documents or accounts or any scientific orlocal investigation which cannot conveniently be made with a jury.” (emphasis added)

13.It is thus trite that in a libel trial, the norm is that the action shall be tried with a jury if one party so chooses. However, if the Court is satisfied that there are circumstances falling within the proviso of section 33A(1), it may justify the departure from the norm.

14.The question of convenience as provided in the proviso of section 33A(1) concerns with the efficient administration of justice rather than the probable difficulty of the issues involved. “Convenient” in this context has been said to mean without substantial difficulty in comparison with carrying out the same process with a judge alone: Beta Construction v Channel Four [1990] 1 WLR 1042 (CA) at 1047F-H, citing Goldsmith v Pressdram Ltd (Note) {1988] 1 WLR 64, and Viscount De L’Isle v Times Newspaper Ltd [1988] 1 WLR 49.

15.Further, Stuart-Smith LJ in Beta identified four main areas in which the efficient administration of justice may be rendered less convenient if the trial takes place with a jury. They can be summarized as follows:

(1) The physical problem of handling large numbers of documents in the jury box.

(2) Substantial prolongation of the trial because of the number and complexity of the documents.

(3) Significantly increased expenses, both by the added length of trial and extra copying.

(4) The risk that the jury may not understand the documents, especially accounts and commercial documents.

16.The learned Lord Justice explained at 1048D-1049C the rationale in identifying these four areas as follows:

“In my judgment, there are four main areas in which the efficient administration of justice may be rendered less than convenient if the trial takes place with a jury. The first is the physical problem of handling, in the confines of the jury box, large bundles of documents or documents that are so bulky that they cannot conveniently be looked at. In the former category would come cases where the jury will need to cross-refer to documents in different bundles, perhaps considering two or more at the same time. In the latter would come cases involving prolonged consideration of plans, which from their sheer size are difficult to manage. Although in some cases special arrangements can be made for juries to have greater space, this will not generally be the case.

Secondly, there is the question of prolongation of the trial. As Lawton L.J. pointed out, trial by jury inevitably takes longer than trial by judge alone. That is an acceptable price for the advantage of having juries decide the issues that arise in cases to which section 69 of the Act of 1981 applies. But where the prolongation is likely to become substantial because of the number and complexity of the documents the administration of justice is affected. If a judge does not understand a document or follow a point made upon it, he can say so and the matter is clarified. Furthermore, he will often study the documents out of court. The jury are unable to do this. Counsel have no means of knowing whether the documents or points made on them are really understood; they must therefore go at what they believe, perhaps quite mistakenly, to be the pace of the slowest jurors. And until they retire to consider their verdict jurors have no chance to study the papers out of court hours. By no means all jurors can be expected to understand accounts and complex commercial documents. Substantial prolongation of the trial not only uses scarce resources in court and judge time, so that they are not available for other litigants, but it adds significantly to the burden of costs to be borne by the parties.

The third element of convenience is the question of expense. The cost of litigation is already a matter of great concern; if it is to be significantly increased because of trial by jury as opposed to judge alone, justice may be denied to one or both of the parties. Costs may be increased not only by the added length of the trial but by the costs of copying documents. Six extra sets, so that jurors may have one between two, may, depending upon the quantity, add significantly to the cost of the trial.

Finally, there is the risk that the jury may not sufficiently understand the issues on the documents or accounts to resolve them correctly. The judge may also misunderstand them; but he has to give a reasoned judgment and if he is in error, it can be corrected in this court. Not so with a jury; no one can ever know upon what grounds they reached their verdict. Where the documents which require prolonged examination are such that the average juryman cannot be expected to be familiar with them, such as accounts and commercial documents, this risk is enhanced.”

17.Although Beta is an authority on the position of “prolonged examination of documents”, it is accepted that those principles apply mutatis mutandis to cases involving “scientific investigation”. See: Gatley on Libel and Slander (11^th ed), paras 33.63 and 33.64.

C2. Discussion

18.Other than requiring the Plaintiffs to prove the Plaintiffs’ defamatory meanings, the main defences raised by the Defendants are justification and fair comments.

19.Under these defences, some of the main issues that will arise at the trial are whether the Defendants are justified in saying in the Article that:

(1) The Product does not have the marketed effect of reducing body weight.

(2) The research findings used by the Group to support the claim that the Product can lead to a reduction of body weight or has a “slimming effect” are not authoritative, and cannot support the claim.

(3) The theory behind the claim that the Product can lead to a reduction of body weight or has “slimming effect” is illogical.

20.In relation to these issues:

(1) The Defendants will rely on the expert report of Prof Kumana to prove justification. Prof Kumana is a Professor of Clinical Pharmacology and Therapeutics in the Department of Medicine at the University of Hong Kong.

(2) However, the Plaintiffs’ case is that in developing the Product and promoting it in the advertisements, they had relied on a study and analysis conducted by Dr Hirsch and Gomez reported in an article (“the Dr Hirsch Article”) entitled “Weight Reduction Through Inhalation of Odorant” published in the Journal of Neurological Medicine and Surgery in 1995, and 19 follow-up researches and clinical studies articles (collectively “the 19 follow-up articles”).

(3) The Plaintiffs will also be relying on their own expert report to support their case, although they have yet to provide one.

21.In dealing with these issues, Prof Kumana in his report sets out, amongst others:

(1) His critical observations and comments on the theoretical aspects of achieving weight reduction as proposed by the Product. He concludes that, “the alleged weight reducing properties of aroma therapy as described by [the 1^st Plaintiff], as well as the proposed theoretical mechanisms for such an effect should regarded as speculative and not validated”.

(2) His critical observations on the Dr Hirsch Article and the 19 follow-up articles. In substance, he seriously doubts the reliability and authoritativeness of those researches and studies reported in these articles insofar as they are said to support the theory behind the weight reducing effect of aroma therapy.

22.In light of the above, Mr Pow, SC for the Plaintiffs now opposes the Defendants’ application for a jury trial on the “scientific investigation” limb under section 33A(1) of the High Court Ordinance. He says that the efficient administration of justice of the trial of the action will be seriously hindered with the scientific investigation of the above complicated issues based on the expert evidence, if the trial is to be conducted before a jury.

23.Although accepting that the trial of the action would involve scientific investigation, Mr Chow, leading counsel for the Defendants, on the other hand submits that the due administration of justice would not be seriously affected in the way as suggested in Beta, asthere is no need to conduct any “prolonged examination of documents or accounts”, or carry out any “local investigation”. In particular, Mr Chow says:

(1) There is no ground to say that there will be substantial prolongation of the trial as a result of the proposed expert evidence being adduced before a jury (although the trial by jury, by its own nature, is likely to add to the length of the hearing).

(2) Nor is there any ground to say that significantly increased expense will be caused by adducing the expert evidence before a jury.

(3) The nature of the expert evidence in this case, as can be seen from Prof Kumana’s report, is not complicated and is readily comprehensible by the jury.

24.I think the merits of Mr Chow’s above submissions depend predominantly on whether he is right in saying that the views expressed (and thus the issues raised) in Prof Kumana’s report are not complicated and are readily comprehensible by the jury.

25.It is here where, with respect, I disagree with Mr Chow.

26.I accept Mr Pow’s submissions that at trial, the Plaintiffs are entitled to and will almost certainly cross-examine Prof Kumana to test the validity and soundness of his opinions and comments set out in the report. This would require the jury to have a critical study and understanding not only of Prof Kumana’s report, but also the Dr Hirsch Article and all the 19 follow-up articles, as well as the scientific theories proposed therein.

27.I have quickly looked at Prof Kumana’s report, the Dr Hirsch Article and the 19 follow-up articles. They amount to one lever-arch file of scientific research and study materials. They relate to scientific theories, propositions and jargons employed in the science of olfactory, neurology and neurophysiology, which I do not think are easily or readily comprehensible by the Court, let alone the jury.

28.Given the complexities of the matters raised in these materials, in my view the “scientific investigation” of them at trial will render the efficient administration of justice less convenient, as there will be a substantial increase in the length (and thus the costs) of the trial, and that there is a risk that the jury may not be able to understand the complex issues raised by the evidence raised under the expert report and the scientific articles.

29.In coming to this conclusion, I have taken into the consideration the reasons why a jury trial is likely to encounter greater problems than a trial by a judge alone in complicated scientific investigation as identified by Stuart-Smith LJ in Beta cited above.

30.I further accept Mr Pow’s submissions that my above conclusion would be further fortified when the Plaintiffs’ expert report becomes available, as the same will be equally subject to cross-examination by the Defendants at trial.

31.As said by Hirst LJ in Hope Technical Development v BBC[1] at page 9:

“…firstly, I am quite satisfied that this case does indeed involve issues which can properly be regarded as a scientific investigation; one only has to read Professor Hales’ report to see that a very large number of complex experiments were carried out by him in support of the conclusion which he reaches; and it is equally clear from Mr Dunn’s report, that while not criticizing the integrity of Professor Hales’ tests, he regarded them a insufficient to support the result which Professor Hales reached. There will thus inevitably be a considerable debate on the expert evidence on both sides with considerable cross-examination of both experts on those technical matters.

Then one asks, can this investigation be made conveniently with a jury. In my judgment, it clearly cannot.

The trial inevitably would be prolonged with much longer opening and closing speeches and more extensive continuous presentation of the evidence, without the advantage of a pre-trial reading by a judge sitting alone, leading to significant extra expense…”

32.For the above reasons, I am satisfied that the present action is not an appropriate one for jury trial. I therefore refuse the Defendants’ application.

D.   The striking out application

D1. The complained paragraphs of the pleadings

33.By way of 2 Summonses, the Plaintiffs ask to strike out:

(1) Paragraphs 1.5 to 1.9 of the Further and Better Particulars of the Defence (“the F&BP”), and

(2) Paragraph 6A(4) of the Amended Defence.

The Plaintiffs say the pleaded facts under these paragraphs are irrelevant, frivolous/vexatious and prejudicial to a fair trial.

34.Paragraphs 1.5 to 1.9 of the F&BP relate to paragraph 7 of the Defence.

35.Paragraph 7 of the Defence is the Defendant’s plea on justification against the Plaintiffs’ defamatory meanings, which says as follows:

“7. Further or alternatively, if the Article bore or was understood to bear or is capable of bearing all or some of the meanings set out in paragraph 9 [of the Statement of Claim, i.e., the Plaintiffs’ defamatory meanings], then the Article in such meanings is true in substance and in fact.”

36.Paragraphs 1.5 to 1.9 of the F&BP are parts of the particulars provided by the Defendants as the facts and matters in support of the allegation that the Article in the Plaintiffs’ defamatory meanings is true in substance and in fact. They are pleaded as follows:

“…

1.5 One of the Directors of the 1^st Plaintiff is Chow Heung Wing.

1.6 On of the current List of Registered Doctors Full Registration – Resident List maintained by the Medical Council of Hong Kong, the following details are recorded:-

Reg. No.	Name	Registered Address	Qualification
M03960	CHOW, HEUNG WING STEPHEN 周向榮	G/F., 235 NAM CHEONG ST., SHAM SHUI PO, KOWLOON	香港大學內外全科醫學士 MB BS HK 1979 FRACGP 1993

1.7 On 24^th October, 2002 the Medical Council of Hong Kong held that:-

‘Dr CHOW Heung Wing, Stephen, being a registered medical practitioner and a consultant of Winsor (Hong Kong) Limited (the 2^nd Plaintiff), and without disclosing any such interest, in his column in the Apple Daily:-

(a) on 18 January 1999 recommended a product MP 17 to the readers and suggested the readers could contact the wholesaler with the telephone number he provided, which in fact was registered to Winsor (Hong Kong) Limited, the local distributor for the product MP 17;

(b) on 21 January 1999 recommended the product MP 17 to the readers;

(c) on 26 February 1999 recommended the product MP 17 to the readers;

(d) on 9 March 1999 suggested the readers could contact the wholesaler with the telephone number he provided, which in fact was registered to Winsor (Hong Kong) Limited, the local distributor for the product MP 17;

(e) on 9 April 1999 suggested the readers could contact the wholesaler with the telephone number he provided, which in fact was registered to DR Esthetic Product Research & Production Centre (the 1^st Plaintiff), the manufacturer for the product MP 17;

(f) on 16 April 1999 recommended the product MP 17 to the readers and suggested the readers could contact the wholesaler with the telephone number he provided, which in fact was registered to DR Esthetic Product Research &Production Centre, the manufacturer for the product MP 17;

(g) on 21 June 1999 suggested the readers could contact the wholesaler with the telephone number he provided, which in fact was registered to DR Esthetic Product Research & Production Centre, the manufacturer for the product MP 17;

(h) on 24 June 1999 suggested the readers could contact the wholesaler with the telephone number he provided, which in fact was registered to Pretty Woman CP Centre operated by Windsor [sic] (Hong Kong) Limited, the local distributor for the product MP 17; and

(i) on 21 July 1999 recommended the product MP 17 to the readers and suggested the readers could contact the wholesaler with the telephone number he provided, which in fact was registered to DR Esthetic Product Research & Production Centre, the manufacturer for the product MP 17.’

1.8 The Medical Council further held that in relation to the facts found, Dr. Chow Heung Wing, Stephen was guilty of misconduct in a professional respect.

1.9 In accordance with Section 21(1)(iii) of the Medical Registration Ordinance, the Medical Council ordered on 24th October, 2002 that Dr. Chow Heung Wing, Stephen be reprimanded and such decision be published in the Government of the Hong Kong Special Administrative Region Gazette….”

37.Paragraph 6A of the Amended Defence is in relation to the Lucas-Box meanings (i.e., lesser defamatory meanings) of the Article, which is pleaded as follows:

“Further or in the alternative, the Defendants’ case is that the Article in the meanings set out below but not in the meanings pleaded in paragraph 9 [of the Statement of Claim] are true in substance and in fact.

Particulars of meanings

(1) Contrary to the claim made out the Product by the Group, the Product does not have the effect of reducing body weight or ‘slimming effect’.

(2) The research findings used by the Group to support the claim that the Product can lead to a reduction of body weight or has ‘slimming effect’ are not authoritative, and cannot support the claim.

(3) The theory behind the claim that the Product can lead to a reduction of body weigh or has ‘slimming effect’ is illogical.

(4) The boss of the Group, Dr Chow Heung Wing, was reprimanded by the Medical Council of Hong Kong for the professional misconduct in 2002.”

38.Paragraph 7A of the Amended Defence further pleads that the Defendants will rely on the facts and matters set out in the F&BP in support of the defences of justification in relation to the Plaintiff’s defamatory meanings (as pleaded by the Plaintiffs) and the Lucas-Box meanings (as pleaded by the Defendants above) of the Article.

D2. Discussion

39.It is trite that the Court will only strike out a pleading or a plea when it is clear and obvious to do so.

40.The particulars pleaded under paragraphs 15 to 19 of the F&BP are relied upon by the Defendants to support the justification defence of both the defamatory meanings and the Lucas-Box meanings.

41.The gist of the Plaintiffs’ objections to these paragraphs can be summarized as follows:

(1) Insofar as these particulars are relied upon to support justification of the defamatory meanings, they are entirely irrelevant, as Dr Chow’s professional disciplinary conviction has nothing to do with the truthfulness or not of those meanings. Dr Chow was disciplined for his failure to declare a potential conflict of interest in relation to a product (of the 2^nd Plaintiff) he promoted in a newspaper in 1999 without disclosing that he was a consultant of the 2^nd Plaintiff. This (the Plaintiffs submit) plainly has nothing to do with the Product or the alleged lack of (and the Plaintiffs’ alleged knowledge of the lack of) the soundness or validity of the scientific basis behind the Product. They should be therefore struck out as they are irrelevant, frivolous and prejudicial to a fair trial in raising an irrelevant but purely sensational issue.

(2) Insofar as these particulars are relied upon to support the Lucas-Box meanings, they are similarly irrelevant, since the lesser defamatory meaning of Dr Chow’s reprimand by the Medical Counsel pleaded in paragraph 6A(4) of the Amended Defence is something which the Plaintiffs have not complained of and have not sued on. As such, there is no such issue arising at the trial[2]. These particulars and paragraph 6A(4) should therefore be similarly struck out for irrelevance, being frivolous and prejudicial to a fair trial in clouding the real issues.

42.Mr Chow (for the Defendants) submits however that the disciplinary conviction of Dr Chow is relevant to the plea of justification of the Plaintiffs’ defamatory meanings because:

(1) The Plaintiffs’ defamatory meanings raise the question of whether the Plaintiffs or the Group falsely misrepresented or knowingly misled the public about the effect of the Product, even though they knew that the Product could not confer the benefit claimed or the theory behind the Product was devoid of scientific and/or logical basis, or the researches/clinical test results were biased, outdated and/or devoid of authority.

(2) It is the Defendants’ case that, by reason of his medical qualification and knowledge, Dr Chow (being also a director of the 1^st Plaintiff) knew or must have known that the reference materials appearing on the packaging box of the Product or in the Group’s advertisements in respect of the Product were unreliable, not authoritative, and could not reasonably be regarded as any objective medical evidence in support of the said claim[3].

(3) Under these contexts, the nature of the disciplinary charge (that he was once convicted of promoting the 2^nd Plaintiff’s product without disclosing his interest as required by the professional code of conduct) is relevant to show the extent to which (and thus the likelihood that) Dr Chow (as a director of the 1^st Plaintiff) was prepared to conduct himself in order to further his (and the Plaintiffs’) commercial/financial interest by promoting or causing the Plaintiffs to promote the Product based on materials which he knew to be unreliable and not authoritative.

43.I am of the view that Mr Chow’s above submissions on the relevancy of particulars in relation to the Plaintiffs’ defamatory meanings are not plainly unarguable. I therefore think that this should be left to the trial judge to determine (after hearing all the evidence) whether the disciplinary conviction could be relied upon to successfully establish the defence of justification.

44.However, insofar as the Lucas-Box meanings are concerned, I accept the Plaintiffs’ submissions that Dr Chow’s reprimand by the Medical Council is a distinct and separate sting in the Article which is not sued upon by the Plaintiffs. In the circumstances, it does not amount to a proper issue in the action and is clearly irrelevant.

45.Paragraph 6A(4) of the Amended Defence should therefore be struck out on the basis that it is irrelevant, frivolous/vexatious and prejudicial to a fair trial in relation to the Lucas-Box meanings.

46.For these reasons:

(1) I refuse to strike out the particulars provided under paragraphs 15 to 19 of the F&BP.

(2) I will strike out paragraph 6A(4) of the Amended Defence on the basis that it is irrelevant, frivolous/vexatious and prejudicial to a fair trial of the action in relation to the Lucas-Box meanings of the Article.

E. Conclusion and Orders

47.In light of my above reasons for the decisions, I make the following orders:

(1) The Defendants’ Summons dated 16 October 2008 for a jury trial is dismissed. There should also be an order nisi that costs of that Summons be to the Plaintiffs to be taxed if not agreed, with certificate for two counsel.

(2) The Plaintiffs’ striking out Summons dated 22 October 2008 be dismissed. There be an order nisi that costs of this Summons be to the Defendants to be taxed if not agreed.

(3) Paragraph 6A(4) of the Amended Defence be struck out on the ground that it is irrelevant, frivolous/vexatious and prejudicial to a fair trial of the action. There be an order nisi that costs of the Plaintiffs’ striking out Summons dated 7 November 2008 be to the Plaintiffs to be taxed if not agreed, with certificate for two counsel.

48.Unless any of the parties applies by Summons to vary the same, the nisi costs orders shall be made absolute 14 days from today.

49.It remains for me to thank leading counsel for their helpful assistance in these matters.

Mr. Jason POW, SC, leading Mr. Mark WEI, instructed by Messrs Wong & Co., for 1^st & 2^nd Plaintiffs.

Mr. Anderson CHOW, SC, instructed by Messrs Deacons, for 1^st & 2^nd Defendants.