China Bocom Insurance Conmpany Ltd v. Next Magazine Publishing Ltd and Another

DCCJ 6640/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6640 OF 2004

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Coram: Deputy District Judge Jack Wong in Court

Dates of Hearing: 11, 12, 15 and 17 November 2010

Date of Judgment: 6 December 2010

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JUDGMENT

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Introduction

1.This is an action for libel.

Background

2.The Plaintiff is and was an insurance company in Hong Kong providing, inter alia, local private motor car insurance.

3.The 1^st Defendant is and was the proprietor, publisher and printer of Next Magazine (壹週刊) (“the Magazine”) published weekly in Hong Kong.  The 2^nd Defendant is and was the editor of the Magazine.

4.On 17 December 2004, the Plaintiff commenced the present proceedings against the Defendants in libel for 3 statements contained in an article (“the Article”) (see Attachment hereto) at Issue No. 741 of the Magazine:

(a)  “保險公司搵客填氹 (the “1^st Statement”);

(b)  “中國交通保險卸膊 (the “2^nd Statement”);

(c)  “保險界黑箱作業，一句行規便推卸所有責任，已發出保單都可以唔認數，將所有做生意的風險轉嫁投保人，無恥！”(the “3^rd Statement”).

5.The Plaintiff asked for damages, injunction, apology, interest and costs.

6.The Defendants contested the proceedings and argued, inter alia, that:

(a)  The 3^rd statement did not refer to the Plaintiff; and/or

(b)  All 3 statements were not defamatory; and/or

(c)  Even if they were defamatory, the Defendants were not liable because of the defence of:

(i)  Justification

(ii)  Fair comment; and/or

(iii)  Qualified Privilege.

7.Parties appeared before me for 4 days in November 2010.  Mr. Jason Pow SC acted for the Plaintiff.  Mr. Patrick Fung SC leading Mr. Raymond Ho of counsel represented the Defendants.  4 witnesses testified, 2 from each side, namely, 2 officers for the Plaintiff and 2 authors of the Article.  Both the current editor-in-chief and the one at the material times did not give oral testimony although they had filed their respective witness statements. Their written evidence does not therefore add too much weight to the Defendants’ case.

8.After the hearing, I reserved my judgment to be delivered.  I now do so.

Construction of the 3 statements

9.In order to answer questions 6(a) and (b) above, one has to construe the 3 statements.  Since the present proceedings are not jury trial, the task is to be done by me, wearing the hat of the jurors.  In so doing, both learned counsel referred to me a number of useful authorities setting out various principles.  I find the following extracts particularly useful in the present context and will remind myself in construing the Article.

“5.14 The natural and ordinary meaning of words is the meaning in which the words would reasonably be understood by ordinary people using their general knowledge and common sense. This meaning is determined in accordance with the following principles:

(1) The court decides the natural and ordinary meaning as a question of fact, by attributing to the words the meaning which the court considers they would convey to ordinary reasonable people. It is not limited to the literal meaning of the words but includes any inference or implication which would reasonably be drawn.

(2) The sense in which the words were intended is treated as irrelevant.

(3)  The sense in which the words were in fact understood is treated as irrelevant though, it seems, regard will be had to the nature of the publication and the degree of care with which its readers were likely to have considered the words.

(4)  The words are construed in their context and by reference to their mode of publication.

(5)  Where a case is tried with a jury the decision as to the natural and ordinary meaning of the words is for the jury, but the judge may first have to rule whether the words are capable in law of bearing one or more of the meanings for which the parties contend.”

(Duncan and Neill on Defamation 3^rd ed. P39-40)

“(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any ‘bane and antidote’ taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, ‘can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…’ (8) It follows that it is not enough to say that by some person or another word might be understood in a defamatory sense.”

(Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at §14 per Sir Anthony Clark MR).

10.I set out the context of the Article in the followings.

(a)  Each issue of the Magazine contained 2 copies: (i) News and others, (ii) Entertainment and others.  The Article was published in the former one.

(b)  Each copy of the Magazine further contained a number of different sections.  The Article was headed the complaint (投訴) section.

(c)  Citizens might refer complaints to the Magazine by telephone and fax.  Upon investigations, the Magazine would make a judgment in the name of “壹判官” and gave a grading in terms of different counts of “劣”.

(d)  In the present case,

(i)  The 1^st statement was part of the heading of the Article, occupying a prominent space therein.

(ii)  The 2^nd statement was a sub-title contained in the middle of the Article under the name of “回應”.

(iii)  The 3^rd statement was the judgment passed by 壹判官 at the end of the Article. It was followed by 5 counts of “劣”.

11.With the above principles and context in mind, I, in the capacity of an ordinary reasonable reader, view that the 3^rd statement did refer to the Plaintiff:

(a)  The Article was originated from a complaint against the Plaintiff.  After investigation, 壹判官decided that the complaint was justified.  The 3^rd statement was the concluding judgment and hence, was referred to the Plaintiff.

(b)  The 3^rd statement started with “保險界黑箱作業” (emphasis added).  The Defendant argued that the same therefore was directed to the whole industry, not the Plaintiff.  Further, the remarks of “行規” were only mentioned by the LegCo member for the functional constituency of the insurance industry in the Article.  I refused to accept such construction.  The statement should be construed as such: During investigation, all interviewees of the industry, including the LegCo member and the spokesmen for the relevant authorities took side with the Plaintiff and as such, not only the Plaintiff, but also the whole industry, should be condemned.  

(c)  Both learned counsel had a dispute over the applicability of “class libel”.  However, it is not necessary for me to resolve it because, as a matter of fact finding, I have concluded that reasonable reader could find that the remarks was pointed at the Plaintiff, including the whole industry as well.

12.I further take the view that all 3 statements are defamatory:

(a)  “A statement should be taken to be defamatory if it would tend to lower the Plaintiff in the estimation of right-thinking members of society generally, or be likely to affect a person adversely in the estimation of reasonable people generally” (Gillick v BBC [1996] EMLR 267 at 272-273 (Neill LJ), applying dicta of Sir Thomas Bingham MR in Skuse v Granack Television Ltd [1996] EMLR 278 at 285-287).

(b)  Both the 1^st and 2^nd statements were understood to mean that “the Plaintiff shifted to its customers those liabilities/responsibilities that were properly belonging to the Plaintiff”.

(c)  The 3^rd statement was understood to mean that the Plaintiff:

(i)  transferred the risks in its insurance business to its customers;

(ii)  refused to honour issued policies;

(iii)  was irresponsible; and

(iv)  was disgraceful.

(d) In relation to the 1^st statement, the Defendants pleaded that it should only mean:

“the Plaintiff demanded the customer(s) to settle the deficit or shortfall caused by the failure of SIA to pay the monetary premium it received from the customer(s) to the Plaintiff.” (para. 7 of the Amended Defence).

I did not agree such interpretation as it is only a neutralization of the words. “搵客填氹” clearly carries derogatory and blameworthy connotation on its own as well as in line with the whole tone of the Article.

(e)   Regarding the 2^nd statement, the Defendants argued that it bore and was understood to bear the meaning that:

“the Plaintiff was prevaricating and/or being evasive” (para. 13 of the Amended Defence).

Mr. Fung SC further argued that it only related to the attitude of the Plaintiff in answering the legitimate queries and questions of the Defendants. Upon thought, I decline to accept such proposition.

(i)  The pleaded meaning by the Defendants is per se defamatory as it connotes one being irresponsible. “卸膊” is a colloquial term carrying blameworthy connotations.

(ii)  I agree to adopt the impressionistic approach as suggested by Mr. Pow SC:

“Plaintiff’s case is that the words “卸膊” will be understood by reasonable readers as referring to the whole conduct of Plaintiff in the incident of Mr. Cheung’s complaint. On a fair reading of the relevant portion of the Article, and taking an impressionistic approach, the words “卸膊” would not be understood as merely confined to describing Plaintiff’s attitude in response to the Magazine’s queries.” (para.4 of the Plaintiff’s closing submission)

(iii)  In so construing the 2^nd statement, I have not forgotten Mr. Fung’s remarks as per Lord Denning MR in Fullam v Newcastle Chronicle [1977] 1 WLR 651 at 654:

“In considering questions of this kind we have to ascertain not exactly the sense in which the words were understood by the hearers, but in what sense they would be reasonably understood.”

It is indeed the very reason why I take the view that the 2^nd statement carried a sting of irresponsibleness upon the Plaintiff.

(f)   Having decided that the 3^rd statement did point to the Plaintiff, it goes without much discussion that the same lowered the estimation of the Plaintiff in the public eyes. “無恥” is a strong comment accusing the Plaintiff’s behaviour as “despicable”, “disgraceful” and “dishonourable”.

13.I now move to see if the Defendants can rely on the 3 defences pleaded.  In so doing, I need to decide on the factual scenario as well as the state of mind and knowledge of the authors at the material times.

Finding of facts

14.4 witnesses appeared before me.  Unlike the usual trial, there were not too many factual disputes among them.  Basically, each witness was telling their own knowledge and understanding about the case leading to the publication of the Article.  I do not consider that they were against one another.  If there was indeed conflict of evidence, it only happened at the conversation when Mr. Tam talked to Ms. Chan over phone to explain the enquiry from the Magazine.  Otherwise, it will be only whether their evidence is to be accepted on balance by the Court.  In the context of the telephone conversation, on balance, I prefer the evidence of Mr. Tam to those of Ms. Chan as the former was more straightforward when the latter answered questions in quite a guarded fashion which probably caused her to lose some neutrality.

15.For the purpose of deciding if the defences of justification, fair comment and/or qualified privilege will be available to the Defendants, I set out the following finding of facts:

(a)  In or around November 2003, Mr. Cheung appointed Shanghai Insurance Advisers Co. Ltd. (“SIA”) to obtain a third party motor insurance policy from the Plaintiff.

(b)  Mr. Cheung paid the premium to SIA.

(c)  SIA however did not pay the same to the Plaintiff as there was credit period of about 2 months.

(d)  The Certificate of Insurance and Policy was issued to Mr. Cheung on 9 February 2004.

(e)  There were regular demands issued by the Plaintiff against SIA for all outstanding payment of premium, including that of Mr. Cheung’s policy.

(f)  In or about May 2004, there were rumours that SIA would close down.

(g)  On 7 May 2004, the Plaintiff issued letter to Mr. Cheung demanding for outstanding premium within 10 days or that the Plaintiff would regard policy as null and void from the date of inception.

(h)  Mr. Cheung received the letter on 10 May 2004 and called the marketing manager of the Plaintiff, Mr. Cheng, on the next day.  During the conversation, Mr. Cheng explained the position of the Plaintiff.  He explained the difference between “insurance broker” (保險經紀) and “insurance agent” (保險代理).  SIA was an insurance broker acting for Mr. Cheung only, not an insurance agent for the Plaintiff.  As SIA failed to pay the premium to the Plaintiff, it had the legal rights to seek payment directly from him.  If Mr. Cheung refused to pay, the Plaintiff would cancel the policy.

(i)  Mr. Cheung disagreed and was not satisfied with the explanation.

(j)  Mr. Cheung tried to seek assistance and/or made complaints to the police and various related authorities.  However, they only told him to seek legal advice.

(k)  On 12 May 2004, Mr. Cheung brought up his difficulties and grievances to the complaint section of the Magazine by fax asking for answers.

(l)  The Magazine received the fax on 13 May 2004.  Ms. Chan and Ms Yick were instructed on urgent basis to handle the matter.

(m)  Ms Chan then:

(i)  called Mr. Cheung by phone.  He reiterated his position and emphasised that he was extremely concerned as to whether or not his vehicle was covered by insurance in previous five months;

(ii)  sent a fax to the Plaintiff raising a number of queries;

(iii)  contacted by phone the chairman of International Professional Insurance Consulting Association and 2 solicitors for their views;

(iv)  read various newspapers in Hong Kong about the closing down of SIA, and it did raise a public concern;

(v)  received a call from Mr. Tam of the Plaintiff, during which he was explained that SIA was an insurance broker acting for Mr. Cheung only.  Mr. Tam also said that:

(1)   both the Plaintiff and Mr. Cheung were victims;

(2)   he could not provide a yes/no answer over phone as to whether the policy was in force as it involved a complicated legal issue;

(3)   he could not comment on an individual case regarding as to why the Plaintiff allowed SIA not to pay premium for 5 months; and

(4)   he could extend the deadline for payment (though not too long) and discuss with Mr. Cheung with a view to achieve settlement.

The general attitude of Mr. Tam was cooperative and Ms. Chan did not continue hounding Mr. Tam for answers when he said that he was unable to do so.

(vi)  On 14 May 2004, Ms. Chan had a confirmation from Mr. Cheung that the Plaintiff had extended the deadline for payment of premium pending their negotiations.

(n)  On the other hand, Ms. Yick also:

(i)  learnt from Ms. Chan the conversations between her and Mr. Tam;

(ii)  read various newspapers in Hong Kong about the closing down of SIA;

(iii)  try to contact the chairman of Hong Kong Professional Insurers Association by fax and by phone, but was not successful; and

(iv)  talked to Mr. Chan Chi See, the said LegCo member and a spokesman for the Commissioner of Insurance.

(o)  Ms. Yick than passed her research to Ms. Chan who came up with their joint writing, leading to the publication of the Article.

16.I have further findings in relation to the individual witness:

Ms. Chan

(a)  In writing the Article, she did understand the difference between insurance broker and insurance agent.  She also understood that SIA acted for Mr. Cheung only and as such, the Plaintiff was correct in demanding him for payment of premium.

(b)  She thought that the Plaintiff did 2 things wrongly:

(i)  it did not explain their basis of their demand to Mr. Cheung; and

(ii)  it failed to answer the media with queries.

Ms. Yick

(c)  She also appreciated the difference between insurance broker and insurance agent. Legally speaking, Plaintiff was not erred in demanding the premium.

(d)  In her view, the Plaintiff did 3 things that were unjust:

(i)  it did not take up liability or responsibility;

(ii)  it did not explain to Mr. Cheung; and

(iii)  the trade practice was unreasonable.

Mr. Tam

(e)  Mr. Fung SC attacked the evidence of Mr. Tam on a number of aspects, including how and why the policy would be null and void from inception date, why credit period was given by SIA, failure to produce written evidence of payment demand against SIA, ordinary citizens did not know the difference between insurance broker and insurance agent and SIA could have accepted a secret commission. With respect, I do not agree with these observations and take the view that these matters are either irrelevant for the purpose of considering the defences for defamation, or alternatively, in so far as they are relevant, they have been satisfactorily answered by Mr. Tam.

(i)  The effectiveness of the subject policy is a complicated legal question because it involves the understanding of factual matrix of the parties, the concept of agency and the overriding legislation of Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272).  To cut short the long story, once the policy was issued, the Plaintiff had to be responsible for any third party, but not Mr.  Cheung, even though premium was not paid.  Mr. Tam barely understood the position and did not feel comfortable to give a definite answer to Ms. Chan and as such, replied to her that he could not provide a yes/no answer over phone.

(ii)  As a matter of fact, the Plaintiff did allow credit period for SIA.  It was also verified by the Defendants’ investigation from the insurance industry as a matter of trade practice.  I fail to see anything turn on the defence of defamation.

(iii)  Mr. Tam deposed in his witness statement that “Our Accounts Department had from time to time issued monthly statements of account to SIA to follow up outstanding premium…..”.  During the cross-examination, Mr. Fung SC asked why the Plaintiff had not disclosed documents showing that it did demand SIA for payment.  Mr. Tam replied that he could do so.  Though I have not received any of such written documents, I also see no particular point why it should be taken on against Mr. Tam.  After all, the evidence of issuing monthly statements was there for some time.  There was no application for discovery.  With no evidence adduced by the Defendants to the contrary, on balance, I do accept the Plaintiff’s Accounts Department did so as it said.

(iv)  Mr. Tam agreed that the Plaintiff demanded Mr. Cheung to pay $1,428 when the latter only paid $1,300 to SIA.  He further explained that it might be caused by rebate offered to SIA by the Plaintiff.  At closing submission, Mr. Fung, SC argued that it might amount to a criminal offence against the Prevention of Bribery Ordinance (Cap 201).  In refusing to accept such proposition, I do not forget that we are disputing the matter in a defamation case, but not other arena between other parties.  Further, such argument did not appear to even cross the mind of any witness herein at all material times.

17.With the above construction and fact findings, I now turn to the Defences.

Justification

18.Were the 3 statements true?

19.The defence of justification is bound to fail.  Both the 1^st and 2^nd statements carried the same sting of the Plaintiff, i.e. it shifted to its customers those liabilities/responsibilities that were properly belonging to the Plaintiff.  The Defendants knew that the Plaintiff was legally correct in demanding for payment.  Hence, naturally, in no way the Plaintiff was “搵客填氹” or “卸膊”.

20.As to the 2^nd statement, even if I would have accepted that Ms. Chan only meant the manner of Mr. Tam in their conversation, it could not be established as such because he was not prevaricating or evading.  He voluntarily called Ms. Chan.  He explained his position fairly.  Ms. Chan did not press for any answer .

21.The 3^rd statement contained factual allegation “黑箱作業”, “推卸所有責任”, “唔認數” and “轉嫁投保人”.  As a matter of evidence, both Ms. Chan and Ms. Yick agreed that Plaintiff did not do anything amounting to “黑箱作業”.  As to the remaining three, again, once it is understood that the payment obligation still vested on Mr. Cheung and SIA only acted for him, but not the Plaintiff, all factual basis for these prepositions will collapse.

Fair comment

22.Were the 3 statements fair comment to be made?

23.With the evidence from both Ms. Chan and Ms. Yick, I am afraid that the defence of fair comment is not available to the Defendants in all 3 statements:

(a)  The 1^st statement imputed that the Plaintiff was shifting its loss to Mr. Cheung.  It was wrong in fact and any comment inferred or deduced from it could not be a fair one.

(b)  As I ruled that the 2^nd statement was not justified in either of the 2 alternative cases.  Responsibility of payment of the premium still rested on Mr. Cheung.  In any event, the response of Mr. Tam at the said conversation was not evading, “卸膊” was not a fair comment on the Plaintiff.

(c)  Parties agreed that “無恥” in the 3^rd statement was a comment.  It was the strongest statement made in the Article.  Could the conduct of the Plaintiff be described as “despicable”, “disgraceful” or “dishonourable” in all the circumstances as a concluding remark?  It suffices for me to say that, even if I would accept all the explanations by Ms. Chan and Ms. Yick, I do not consider that such choice of words was fair at all.

Qualified privilege

24.The Defendants also sought to rely on the Qualified or Reynolds Privilege.  In deciding such defence, this Court has to consider all the circumstances of the case including:

“1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.

2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.

3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.

4. The steps taken to verify the information.

5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.

6. The urgency of the matter. News is often a perishable commodity.

7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.

8. Whether the article contained the gist of the plaintiff’s side of the story.

9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.

10. The circumstances of the publication, including the timing.

The list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. Any disputes of primary facts will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. A balancing operation is better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law will be built up.” ([2001] 2 AC 127 at 197, per Lord Nicholls)

25.Mr. Fung SC also reminded me that such defence tolerated factual inaccuracy for 2 purposes: not to deter publication sued upon (which might have been true) and not to deter future publications of truthful information (Loutchansky v Times Newspapers Ltd (Nos. 25) at §41).

26.Upon consideration of counsel’s argument, I take the following views:

(a)  The allegations were serious.  Though there was no complaint of illegal activity, “搵客填氹”, “卸膊” and “無恥” were strong enough to damage the reputation of professionalism of the Plaintiff.

(b)  The matter aroused public concern.  It was perfectly proper for the Magazine to provide “tips” to the readers to protect themselves, but not unjustified factual allegation and unfair comment.

(c)  The Magazine did try to contact and obtain information from all relevant persons and authorities.

(d)  The Magazine did also take steps to verify the correctness of the basic information surrounding the complaint made by Mr. Cheung.

(e)  SIA had just closed down and there were other newspapers in Hong Kong reporting the same subject matter as well as views from relevant persons or authorities. There was yet any investigation by authorities concerned.

(f)  The Plaintiff was negotiating with Mr. Cheung. The original urgency faced by Mr. Cheung was gone.  After all, the Article did not answer legally the difficult or urgent situation faced by Mr. Cheung.  Having said that, I agree that the Article was to be published within time or that it would not be “news” anymore.

(g)  The Magazine did contact the Plaintiff for comment.

(h)  The Article appeared to set out the Plaintiff’s case, but it was presented it in a negative way.

(i)  Mr. Fung SC told me that the Article was expressed in a way which accurately reflected the gravity of the incident.  I respectfully disagree.  I my view, it is the very choice of the words “搵客填氹”, “卸膊”, “推卸所有責任”, “唔認數”, “無恥” and the tone of the Article, including in particular the presenting of “劣, 劣, 劣, 劣, 劣”that triggered the present piece of litigation.  As suggested by Mr. Pow SC in his closing submissions:

“41. Although the failure of SIA was a matter of public concern, it is not in the public interest that it should be misinformed, especially about what Plaintiff is accused of being in the wrong. Furthermore, when their Article originated from a complaint which indicated that the complainant could have an axe to grind and a distinct possibility that the media might be used to pressurize an opponent, extra care should be invested such that the powerful tool of the media would not be misused.

42. DW1 and DW2 might have conducted research and interviewed relevant persons, however, the conclusions they drew were not presented in such a way that right criticisms were clearly directed at the person they intended.

(j)  As said, I agree that there was a need for the Article to be published as “news”. However, as distinguished from other news reported the incident neutrally, the Defendants attempted to pass a judgment on it.  It would not in the public interest that the Plaintiff was blamed in such a way when it was not legally wrong.

27.To conclude, the Defendants have not been able to discharge their burden of establishing the Reynolds Privilege.

Appropriate relief to be granted

28.The Defendants cannot establish any defence. I now turn to the appropriate relief to be granted in the circumstances.

29.Although the Magazine published the Article in its Issue No. 741 in December 2004, there was undisputed evidence that the same is still available in the relevant web site, accessible to the public if they so wish.  I therefore agree to grant a negative injunction, as prayed.

30.As to damages, Mr. Pow SC suggested a range of $150,000 to $200,000 when Mr. Fung SC referred me to authorities for $50,000 to $75,000, subject of course to determination of liability.  In assessing damages, I note the followings.

(a)  “The basic common law rule is that in civil actions damages are awarded as compensation for injury, not as punishment for wrongdoing.  Accordingly, in most actions for defamation, the damages have to be assessed on a compensatory basis.” (Duncan & Neill on Defamation, 3^rd ed. P-205)

(b)  “[A] trading corporation may sue for a libel calculated to injure them in respect of their business, and may do so without any proof of damages general or special, although, where there is no such evidence, the damages given will probably be small”.  (South Hetton Coal Co. Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 at 148 Lord Bingham citing Kay LJ, and approved by Reyes J. in Yaqoob v Asia Times Online [2008] 4 HKLRD 911)

(c)  In the present case, there is undisputed evidence that the average net circulation of the Magazine in Hong Kong was about 140,000 issued in 2004.  The Plaintiff adduced no evidence to show how the publication of the Article adversely affected its business.

31.In conclusion, I opine that a sum of $150,000 should be an appropriate sum to compensate the reputation and goodwill of the Plaintiff. Interest is to be calculated at the statutory rate from the date of writ herein to the date hereof, and thereafter at judgment rate until payment.

32.Both counsel agreed that this Court did have the jurisdiction to grant a positive injunction directing the Defendants to publish an apology. I agree with Mr. Fung SC that such jurisdiction should only be exercised in suitable circumstances.  Indeed, parties also confirmed that such positive injunction had never been granted in any Hong Kong Court.  It therefore suffices for me to see no particular justification having been established to exercise the Court’s jurisdiction and discretion in this particular way.

Costs

33.Costs generally follow event, I see no reason to depart from such rule.  There will be an order nisi, which will become absolute after 14 days from the date hereof, that the Defendants shall pay costs of the Plaintiff in the proceedings, including Certificate for Counsel for the trial dates before me, to be taxed, if not agreed.

34.It concludes my judgment and I have nothing further to add apart from expressing gratitude to all learned counsel for their assistance to me.

Mr. Jason Pow, SC instructed by Messrs. So, Keung, Yip & Sin for the Plaintiff

Mr. Patrick Fung, SC and Mr. Raymond Ho of Counsel instructed by Messrs. Chan, Wong & Lam for the Defendant