Oriental Daily Publisher Ltd and Another v. Ming Pao Holdings Ltd and Others

HCA 607/2008

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 607 OF 2008

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BETWEEN

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Before: Hon Chung J in Court

Dates of Hearing: 14, 15 and 20 April 2010

Date of Handing Down Judgment: 28 May 2010

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J U D G M E N T

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Introduction

1.The plaintiffs commenced this action in April 2008 seeking (among other forms of relief) damages for libel.

Background

2.The background leading to this action is largely undisputed and can be summarised as follows.

3.Both the Oriental Daily News and Ming Pao are Chinese newspapers widely circulated in Hong Kong.

4.The 1^st plaintiff (“Oriental”) is the registered proprietor, publisher and printer of the Oriental Daily News (“the plaintiffs’ newspaper”) and the 2^nd plaintiff (“CK Ma”) holds the office of the honorary chairman of Oriental’s parent company, Oriental Press Co. Ltd.

5.The 3 defendants are respectively the registered proprietor, registered publisher and chief editor of Ming Pao.  No distinction has been made as regards their roles in relation to the claim made in this action.

6.This action concerns an article appearing on p. A13 (with a page-heading “Hong Kong news”) of Ming Pao published on 10 April 2008 (“the suit article”).  It is a relatively short article and is attached to this judgment for ease of reference.

7.The plaintiffs have divided the suit article into 4 component parts: (starting from the top) the photograph, the photograph’s caption, the article heading and the body of the text (respectively “the photograph”, “the caption”, “the heading” and “the text”).

8.In short, the suit article has the appearance of a news article reporting the demonstration of a Chinese male outside the High Court Building.

The Suit Article

9.The photograph of the suit article shows a Chinese male wearing a cap with his face masked.  His left hand leads the readers’ attention to a banner near the right side of the photograph.  The Chinese characters of the banner are reasonably readable.

10.The caption under the said photograph is a one-line caption.  Under it is a one-line heading, followed by the text.

11.The suit article measures about 18cm high by 16cm wide.  It was placed at the top left hand corner of page A13.

12.The statement of claim avers that the following passages are words defamatory of the plaintiffs:-

(a)     the following parts of the banner which appear in the photograph:-

(1)  “香港是否仍有法治？冤獄！賄賂！買兇！”;

(2)   “… 豈料東方日報馬澄坤等馬氏家族並無將有關之投訴合法處理…然彼等不單無以此途徑處理，竟公然揑做一封勒索伍佰萬之勒索信，誣陷本人，再由高級督察游乃強假扮東方日報主席助理，致電本人 … ”;

(3)   “…豈料游乃強竟被人收買，假稱雙方對話並無錄音，再揑做假証供指本人刑事恐嚇…”;

(b)    the part of the caption which reads: “「香港拉登」馬照聲 … 指早前被人插贓嫁禍含冤入獄。”;

(c)     the heading reads: “香港拉登高院外控訴遭插贓”;

(d)    the part of the text which reads: “馬照聲 … 指刑事恐嚇案件是被人插贓嫁禍。”

It is undisputed the suit article concerns the demonstration by a man named “Ma Chiu Sing” (“Ma”), and he was the male depicted in the photograph.  The background of Ma will be set out in more detail below.

13.There is a passage in the text of the suit article concerning Ma being injured when he was assaulted by clubs outside the prison immediately upon his release.  There is another passage about Ma stating he wanted to see if anyone would dare to ignore the law and assault him at the front door of the High Court.  These passages are however not relied upon as words defamatory of the plaintiffs.

Defence

14.Three lines of defence were raised in the amended defence:-

(1)     it is denied the suit article is referable to the plaintiffs;

(2)     in view of the background of Ma, the public would associate him as a person of dubious character and a convicted criminal.  A reasonable reader would not consider his words to be credible, or take his words seriously.  The way in which the suit article reported Ma’s acts and words is also important.  Consequently, the suit article bears no defamatory meaning;

(3)     the suit article is covered by what can be called the Reynolds privilege (also known as the “responsible journalism” defence).

15.At the time of trial, the line of defence summarised in sub-para. (1) above was not mentioned; and that summarised in sub-para. (3) above was expressly abandoned.  Thus, only the line of defence summarised in sub-para. (2) above requires further consideration.

Relevant Background of Ma

16.There is a good reason why the suit article describes Ma as “Hong Kong bin Laden”.  The incidents by which he came to be associated with that name have been summed up in the court of appeal’s judgment in HKSAR v. Ma Chiu Sing [2004] 2 HKLRD 974:-

“At about midday on 28 September 2001, the police received a telephone call from the Applicant in which he said he had put poison into some packets of Maggi instant cup noodles at a Wellcome Supermarket on Lai Chi Kok Road.  The police were told to find these cup noodles otherwise the poison would kill people.  Upon investigation by police officers, no instant noodle packets or cups were found displayed but instead, there were other Maggi cup foods on sale, all of which were removed out of caution.  After examination, it was discovered that one of the cup foods did contain poison, namely 14 mg of carbofuran ...

... the General Affairs Manager of the Oriental Press Group received a letter contained in an envelope with the postmark of the day before.  The envelope was marked urgent.  The letter which was in Chinese was written by the Applicant and signed using the name “HK Bin Laden” ...

... A similar letter was received by the Sing Tao Daily on 28 September 2001 and a fax in those terms was also received by the Apple Daily on 2 October 2001 ...

... On 1 October 2001, a journalist at the Oriental Daily received a telephone call from the Applicant, who identified himself as the person who had poisoned some instant cup foods at a Wellcome Supermarket on 28 September 2001. ... Later that day, in another call to the same journalist, the Applicant stated that he had contaminated a bottle or jar of Cadbury’s Chocolate Powder, located again at a Wellcome Supermarket  ... 

Upon investigation at the supermarket, it was discovered that one of the jars of chocolate contained traces of carbofuran ...

The Applicant did not give himself up.  It was, as the judge noted, only through the responsible and efficient way that the matter was handled by the management of the Oriental Daily and the Apple Daily that enabled the police to act swiftly and decisively to arrest the Applicant ... ” (para. 2(1) to 2(5) and 12 thereof).

17.He was later charged with:-

(a)     3 counts of maliciously sending letters threatening to kill unnamed persons (s. 15, Offences against the Person Ordinance (Cap. 212));

(b)    2 counts of attempting, unlawfully and maliciously, to administer to or cause to be taken by an unknown person a noxious substance (namely carbofuran) with intent to injure, aggrieve or annoy such person (s. 23, Cap. 212).

Although he pleaded guilty to the s. 15 offences, those convictions in 2002 were quashed on appeal.  But the original sentence for the s. 23 offences was in effect maintained on appeal.

18.The above convictions will be called “the poisoning incidents” below.

19.The incidents mentioned in the suit article as directly related to Ma’s demonstration were as follows.

20.From July to August 2006 (shortly after Ma’s release from prison), the plaintiffs’ newspaper received letters from Ma.  One letter threatened the plaintiffs’ newspaper.  After a report was made to the police, an inspector who posed as CK Ma’s personal assistant spoke to Ma over the telephone.  Threats were again made by Ma.  Ma was later convicted in 2008 of 2 offences of criminal intimidation, based in essence on the contents of the said letter and the inspector’s testimony.  His appeal against the convictions was dismissed.  He was released from prison in March 2008 (about 3 weeks before the date of the suit article).

21.The above convictions will be called “the criminal intimidation incidents” below.

Is the Suit Article Defamatory ?

22.The relevant legal principles include the following.

23.Gatley on Libel and Slander (2008) 11^th Ed. recognised that there may be difficulty in producing a comprehensive definition of the meaning of “defamatory”; the following has been offered as (at least) a working definition of its meaning: a defamatory imputation is one to the claimant’s discredit, or which tends to lower him in the estimation of others or causes him to be shunned or avoided; or exposes him to hatred or ridicule: Gatley, para. 2.1, text to nn. 4 to 7.

24.The court puts itself in the position of an ordinary reader when construing the article in question; that is, the interpretation of allegedly defamatory words is determined by how an “ordinary reader” reasonably understands those words: Gatley, para. 3.13 and 3.24.

25.The fictitious “ordinary reader” is described as one with the following temperament:-

“He is a sort of half way house between the unusually suspicious and the unusually naive.  He is essentially fair-minded and reasonable and does not jump to hostile conclusions on flimsy evidence; but he may be guilty of a certain amount of loose thinking and does not read a sensational article with cautious and critical care ... and his capacity for implication or drawing inferences is greater than the lawyer’s ... The layman reads in an implication much more freely, and ... is especially prone to do so when it is derogatory” (Gatley, para. 3.25).

See also Charleston and Another v. News Group Newspapers Ltd. and Another [1995] 2 AC 65, 71F-72F (see also para. 52 below).

26.The words have to be understood in context and taken as a whole, provided it all relates to the same defamatory meaning: Gatley, para. 3.28 to 3.30 and 3.32; 25(1) Hong Kong Halsbury (2007 Reissue), para. 380.536.  Words are to be taken in their most natural and obvious sense.  The Plaintiff is not permitted to select any isolated passage(s) in an article and complain of that alone if other part(s) of the article throw a different light on the passage(s) in question.

27.There are two stages to the process of determining whether words are defamatory: first to decide what they mean, and then to decide whether that meaning is defamatory: Gatley, para. 2.1.  The purpose of the exercise is to ascertain the “sting” of the defamation (if any).

28.A cause of action still lies even if the words were not believed by the audience (unless they were totally beyond belief): Gatley, para. 2.1, text to nn. 15 and 16.  Thus:-

“For the purposes of the law of defamation, the fact that the same words can mean different things to different people is ignored; the court seeks to determine and act upon the one and only meaning that the readers as reasonable persons should have collectively understood the words to bear; this is the natural and ordinary meaning”: 25(1) Hong Kong Halsbury (2007 Reissue), para. 380.535.

29.A person who repeats a defamatory statement is no less liable than the one who initiated it: Gatley, para. 11.4.  There is no general legal doctrine that a report of such a statement is not actionable unless the reporter endorses or “adopts” the statement: Gatley, para. 11.5, text to n. 48.  Gatley called this “the repetition rule” and it will be so called below.

30.Finally:-

(1)     the mere intention to vex and annoy will not make the language defamatory if it is not so in its own nature;

(2)     where defamation actions are tried by a single judge, it would be carrying artificiality too far to require the judge to arrive at the single “right” meaning by distinguishing between meanings which the words were capable of bearing, and then choosing the “right” one: Next Magazine Publishing Ltd. v. Oriental Daily Publisher Ltd. (2000) 3 HKCFAR 160.

(a)     Is the Suit Article Referable to the Plaintiffs ?

31.As stated above, this no longer appears to be relied upon by the defence (and correctly so).  The plaintiffs’ names were expressly referred to in the photograph.  Taking that into account, the suit article must have been referable to them.

(b)     How the Ordinary Reader Understands the Suit Article

32.While the defence does not dispute the repetition rule (especially as regards the banner appearing in the photograph) or that the ordinary and natural meaning of the words in the banner is defamatory, it contends that the suit article would not convey a defamatory meaning to an ordinary reader when read in its entirety.

33.In particular, the defence relies on the following:-

(a)     the suit article is nothing more than an objective piece of news report, with no or minimal investigative or editorial work on the defendants’ part; it does not contain their opinion either;

(b)    the references to Ma’s nickname and the criminal intimidation incidents should deprive Ma’s accusations of any credibility.  Ma is and was a notorious criminal.  An ordinary reader will not give weight to these accusations.

34.For the reasons set out below, I disagree with the above contentions.

35.First, as a general observation, an ordinary reader is quite justified to think a newspaper of Ming Pao’s reputation or standing would not select news items (i) at random, or (ii) (worse still) which have no worth or credibility.  Indeed, it will be a sad day for our community if he needs constantly to remind himself such may be the case.  Such a reader is in fact quite justified in inferring that news items (such as the suit article) have been selected for good reasons.  The suit article also mentioned that Ma was interviewed by Ming Pao’s reporter.  If anything, this has the inclination of giving an appearance Ma’s story was worthy of investigation.

36.Secondly, it is important to note that, in the text, Ma’s nickname was mentioned together with the criminal intimidation incidents; but the poisoning incidents were omitted.  Ma’s convictions in 2008 for the former incidents took place much closer in time to the suit article than his convictions in 2002 (his appeal was heard in 2004) for the latter incidents (about several months as opposed to about 4 to 5 years).

37.The temperament of the ordinary reader has been set out above.  Further to those qualities, his memory of past events is often imperfect, and he may not make the effort to remind himself of the accuracy of those events.

38.With the above qualities in mind, after reading the suit article, the ordinary reader would very probably connect Ma’s nickname to the criminal intimidation incidents, rather than the poisoning incidents.  In other words, the ordinary reader may not remember “Hong Kong bin Laden” or Ma was the person responsible for the last-mentioned incidents.

39.The ordinary reader’s imperfect memory of the past events would be of importance when considered together with the matters set out in para. 40 below.

40.As regards the credibility of Ma’s accusations (and hence the suit article’s defamatory imputations), the ordinary reader’s assessment would be affected by the following:-

(1)     the matters set out above under this sub-heading;

(2)     the reference to Ma being assaulted immediately upon his release from prison for the criminal intimidation incidents.

41.As stated in para. 13 above, the matter referred to in sub-para. (2) above is not relied upon as part of the plaintiff’s cause of action.  Nevertheless, it should be taken into account in considering the imputations of the suit article.  This is because unless the ordinary reader considers the assault to be a pure coincidence (which is unlikely), his:-

“… capacity for implication or drawing inferences... [and to read] in an implication much more freely ...” (see para. 25 above)

would be fueled by the reference to such an incident.  He:-

“… is especially prone to do so when it is derogatory” (see para. 25 above).

In this connection, the matter set out in para. 35 above is repeated.

(c)     The “Sting” of the Libel

42.Having taken into account the matters set out under this heading, I conclude that the meaning and “sting” of the suit article (which is essentially the same thing in the context of this action) is as follows:-

(a)     the plaintiffs have fabricated evidence to incriminate Ma;

(b)    the plaintiffs have committed the offence of forgery;

(c)    the plaintiffs have conspired with a prosecution witness to fabricate evidence against Ma;

(d)    the plaintiffs have committed the offence of bribery of a public officer;

(e)     the plaintiffs have committed the offence of perverting the course of justice in procuring the conviction of Ma for criminal intimidation.

Such meaning or “sting” falls within the definition of “defamatory” summarised in para. 23 above.

Conclusion

43.I am satisfied the plaintiffs have established liability against the defendants.

Quantum of Damages

44.CK Ma seeks damages totalling $3.15 million, being $3 million by way of general damages and $150,000 by way of aggravated damages.

45.Oriental seeks damages totalling $300,000, being $150,000 by way of general damages and $150,000 by way of aggravated damages.

46.The defence contends that general damages should be “minimal” (the amount should be substantially less than $150,000 for CK Ma) and no aggravated damages should be awarded.

(a)     Mitigation of Damages

47.The plaintiffs assert that it is not open to the defence to mitigate the quantum of damages because (i) of the lack of particulars in the pleading to this effect, and (ii) the defence has not adduced any evidence to this end.

48.The matters put forth by the defence in this regard are:-

(1)     the suit article was not endorsed by the defendants: Gatley, para. 35.49;

(2)     the defendants were not the originator of the defamatory words: Gatley, para. 35.50;

(3)     in any event, the defamatory imputations in this action are only a tendency to lower the plaintiffs’ reputation.  Because an ordinary reader does not believe Ma’s allegations (alternatively, does not take them seriously), the defamation is only “technical”.

49.Here again, I do not agree with the defence.

50.As regards para. 48(1) above, there is no evidence of valid reasons for selecting the suit article for inclusion in the Hong Kong news section of Ming Pao.  The matters set out in para. 35 to 41 above show that the suit article has been edited in a manner which does not sit entirely comfortably with the lack of malice.  There is no basis to suggest the defendants honestly believed in Ma’s allegations (it is rather their case neither they nor any sensible person ever believed Ma).

51.Similar considerations are applicable to para. 48(2) above.

52.As regards para. 48(3) above, it was observed in Charleston, above:-

“… [Two] principles … are basic to the law of libel.  The first is that … the ‘natural and ordinary meaning’ to be ascribed to the words … is the meaning, including any inferential meaning, which the words would convey to the [ordinary reader]. … The second principle, which is perhaps a corollary of the first, is that, although a combination of words may in fact convey different meanings to the minds of different readers, the jury in a libel action, applying the criterion which the first principle dictates, is required to determine the single meaning which the publication conveyed to thenotional reasonable reader and to base its verdict and any award of damages on the assumption that this was the one sense which all readers would have understood it” (emphasis supplied) (at p. 71).

53.Because of what has been set out in para. 35 to 43 and 50 above, I conclude that the defamatory imputations go beyond what can properly be called “technical”.

54.Thus, leaving aside if this aspect should suffer from a pleading defect, I reject it as having no substantive merits.

(b)     General Damages

55.The purpose of general damages is to restore the plaintiff, as far as money can do, to the position he would have been in if the tort had not been committed.  The relevant factors are:-

(a)     the gravity of the allegation;

(b)    the extent of the publication:

John v. Mirror Group Newspapers [1997] QB 586, 607.

56.In seeking a $3 million award under this head of claim, CK Ma relies on authorities including the following:-

(1)     Yaqoob v. Asia Times Online Ltd. [2008] 4 HKLRD 911;

(2)     Chu Siu Kuk Yuen v. Apple Daily Ltd. and Others [2002] 1 HKLRD 1;

(3)     Charles Sin Cho Chiu v. Tin Tin Publication Development Ltd. and Another, HCA 6662/1997;

(4)   Hung Yuen Chan Robert v. Hong Kong Standard Newspapers Ltd. and Others [1996] 4 HKC 519;

(5)     Hung Yuen Chan Robert v. Sing Tao Ltd. and Another [1996] 4 HKC 539;

(6)     Tang Chui Yuk Angela and Another v. Fung Ka Chuen and Others [2000] HKLR 56.

The highest award made in those decisions was $3 million while the lowest was $200,000.

57.As the defence correctly points out, each case would turn upon its own facts, and it is difficult to extrapolate from previous awards unless there are significant similarities: Hung Yuen Chan Robert v. Hong Kong Standard Newspapers, above, at p. 534.

58.The defence also argues that excessive awards might impede freedom of opinion and expression: Cheung Ng Sheong Steven v. Eastweek Publisher Ltd. and Another [1995] 3 HKC 601.

59.The gravity of the allegations in the suit article has been set out under the headings “(b) How the Ordinary Reader Understands the Suit Article” and “(c) The ‘Sting’ of the Libel” above.  Ming Pao’s own circulation figures at the relevant time indicate an approximate circulation of 110,000 copies for each issue.

60.Bearing in mind all the matters set out above, I consider an award of $1.5 million should be made in CK Ma’s favour.

61.The $150,000 award which Oriental seeks is based on the decisions in Yaqoob, above ($150,000) and Ming Kee Manufacturing Ltd. v. Man Shing Electrical Manufactory Ltd. [1992] 2 HKLR 357 ($50,000).

62.I consider Oriental to be in a similar position as the plaintiff in Yaqoob, above, and therefore also award $150,000 in its favour.

(c)     Aggravated Damages

63.Gatley says:-

“The conduct of the defendant, his conduct of the case, and his state of mind are all matters which the claimant may rely on as aggravating the damages in so far as they bear on the injury to him” (para. 9.14).

The plaintiffs refer to Sutcliffe v. Pressdram Ltd. [1991] 1 QB 153 for similar judicial observations.

64.The plaintiffs rely on the defendants’ refusal to apologise and stubborn persistence in disputing liability, as well as their “overall motives and conduct” as matters justifying the making of such an award (para. 73, plaintiffs’ opening).

65.I consider this to be a borderline case.  The denial of liability has no merits.  On the other hand, the trial has been conducted in an efficient and sensible manner.  There is no vigorously conducted defence as regards liability, nor trial conduct which shows bad faith.

66.At the end, I find the overall circumstance to justify a modest award to be made under this head of claim.  Accordingly, each plaintiff will be awarded a sum of $75,000.

Other Matters

67.The statement of claim also prays for an injunction to enjoin the defendants from publishing the suit article.  This relief is (correctly) not pursued in the opening or closing submissions.

Costs

68.The defendants ask that costs be dealt with after judgment has been handed down.

69.The contents of the written closing submissions indicate that the main difference between them lies in the basis of taxation.

70.Subject to any request for a hearing concerning this aspect (supported by reasons), I propose to deal with costs by way of perusing written submissions.  For this purpose:-

(a)     the plaintiffs be at liberty to lodge with court and serve written submissions on costs within 7 days from the date of handing down judgment;

(b)    the defendants be at liberty to lodge with court and serve written submissions in response within 7 days thereafter.

Mr G McCoy, SC leading Mr Lawrence Ng, instructed by Messrs Iu, Lai & Li, for the Plaintiffs

Mr Denis Chang, SC leading Mr M C Law, instructed by Messrs ONC Lawyers, for the Defendants

Defendant's appeal to Court of Appeal on quantum allowed.Please refer to CACV139/2010 dated 9 May 2011