Yung Chi Kin, Larry V.Leung Tin Wai and Others

CACV000001/1993

1993, No. 1
(Civil)

________________

H E A D N O T E

________________

Libel action on words published in Chinese. Defendants admitted publication but denied plaintiff's English translation and that the words were defamatory. In addition defendants pleaded fair comment and justification, giving the meaning but refusing their English translation relied upon and refusing to identify the comment. On plaintiff's application for further and better particulars held that the plaintiff was entitled to the defendants' translation and to have the comment identified.

1993, No. 1
(Civil)

IN THE COURT OF APPEAL

(ON APPEAL FROM HIGH COURT ACTION NO. A1306 OF 1992)

________________

________________

Coram: Hon Silke, V.-P., Nazareth and Bokhary, JJ.A.

Dates of hearing: 8 and 14 April 1993

Date of handing down judgment: 27 April 1993

________________

J U D G M E N T

________________

Silke V.-P.:

1. I have had the opportunity of reading in draft the judgment of my brother Nazareth.

2. I agree with his conclusions, his reasoning therefore and the order he proposes.

Nazareth, J.A.:

3. This is an appeal by the plaintiff against orders made in chambers by Leong J. on 22nd December 1992, first dismissing the plaintiff's summons for further and better particulars dated the 15th September 1992; second granting the defendants leave to amend paragraph 6 of the draft amended defence; and third awarding the defendants three quarters of their costs of the hearing with certificate for two counsel. The plaintiffs seeks instead orders to the following effect: first that those orders be set aside; second that the defendants within 14 days serve on the plaintiff answers to the plaintiff's request for further and better particulars of the defence; third that paragraph 6 of the defence be struck out; and fourth that the costs of the summonses concerned, of the hearing and of this appeal be to the plaintiff.

4. The background, so far as it need be set out, is as follows. The plaintiff is the chairman and managing director of CITIC Pacific Limited, a public company listed on the Stock Exchange of Hong Kong. The 1st defendant is the editor of Next Magazine ("the magazine"), the 2nd defendant is the publisher and the 3rd defendant, a company incorporated in Hong Kong, is the proprietor of the magazine. By the plaintiff's statement of claim dated the 16th March 1992, it is pleaded that in the 99th issue of the magazine dated the 31st January 1992, the defendants published or caused to be published an article containing the following words in Chinese of which a true translation is as follows:

"Yung Senior came down south to lecture his son

Prince Kin (Yung Chi Kin) 'bought up' Hang Chong by resorting to methods that were more savage than Wah Sau's dog. Quite a few of Hong Kong's wealthy business people feel offended but there is not much they can do. Rumours say that news regarding this incident has spread to Beijing and that this has made Yung Senior (Rong Yiren) very unhappy, who immediately took a Dragon Air flight to Hong Kong to lecture his son. Yung Senior is an experienced businessman who has done big business deals and has seen the world. He knows that doing business is like a builder building a doorway: it must be large enough not only for himself but also for others to pass through it."

5. It is also pleaded that at the end of the article, a picture of the plaintiff's father was published with a caption in Chinese of which the English translation is set out as follows:

"Yung Senior (Rong Yiren) worried that Prince Kin had offended Hong Kong's wealthy people, flew to Hong Kong to lecture his son."

6. Then followed, in the statement of claim, paragraphs 6 and 7 which it is necessary to reproduce having regard to their importance:

"6. The said words in their ordinary and natural meaning meant and were understood to mean that:-

(a) in conducting the acquisition of Hang Chong Investment Company, Limited ('Hang Chong'), the Plaintiff resorted to vicious and disreputable tactics or devices, such behaviour meriting comparison with the behaviour of a dog notorious for savagery and reckless aggression;

(b) in the course of such acquistion, the Plaintiff engaged in conduct which was dishonourable and incompatible with ordinary business ethics;

(c) the Plaintiff's conduct in the course of such acquisition offended or caused discontent amongst wealthy Hong Kong persons;

(d) the Plaintiff's conduct in the course of such acquisition was so unacceptable that news of it spread to Beijing where it was seriously disapproved of,

(e) the Plaintiff's conduct in relation to such acquisition was so disreputable that it caused his father to fly immediately to Hong Kong from Beijing to chastise or lecture the Plaintiff about such conduct; and

(f) the Plaintiff's conduct in relation to the acquisition of Hang Chong demonstrates that the Plaintiff lacks business experience or judgment, in contrast with his father who has wide experience of big business and knows how to conduct himself properly.

7. Further or alternatively, the said words bore or were understood to bear the meanings pleaded in paragraph 6 above by way of innuendo.

Particulars pursuant to Order 82, rule 3(1)

(a) The words 'more savage than Wah Sau's dog' when used to describe a person's behavour are generally known to those conversant with colloquial Cantonese in Hong Kong as signifying savage or recklessly aggressive behaviour on such person's part.

(b) The other words complained of, read in the context of such colloquial meaning, bore the aforesaid pleaded meanings."

7. The statement of claim then went on to plead that, by reason of the publication complained of, the plaintiff had been seriously damaged in his reputation and had suffered loss and damage; and that, unless restrained, the defendants threatened to continue publishing similar defamatory words. It claimed damages and an injunction restraining further publication.

8. The defendants filed their defence on the 23rd April 1992. They admitted publication of the words in Chinese, but denied or did not admit that the English translation of the words in the article and in the caption was a proper or accurate translation of the Chinese text. Paragraph 4 of the defence denied that those words in Chinese bore or were understood to bear or are capable of bearing the meanings alleged in paragraphs 6 and 7 of the statement of claim, or any other meaning defamatory of the plaintiff. Paragraphs 5 and 6, with which the submissions were much concerned, were in the following terms:

"5. Further or in the alternative, the said words in Chinese are fair comment made without malice upon a matter of public interest, namely, the conduct of the Plaintiff in relation to the acquisition of Hang Chong Investment Company Limited ('Hang Chong') by CITIC Pacific Limited.

Particulars of Facts and Matters Relied upon by the Defendants to show that the Conduct of the Plaintiff in Relation to the Acquisition of Hang Chong by CITIC Pacific Limited was a Matter of Public Interest                                            

(a) The Plaintiff was at all material times and is the Chairman of the Hong Kong branch of China International Trust and Investment Corporation ('CITIC'), a state owned corporation based in Beijing directly responsible to the State Council of the People's Republic of China.

(b) The Plaintiff's father, Rong Yiren, was at all material times and is the chairman of CITIC, and the vice-chairman of the National People's Congress of the People's Republic of China.

(c) The Hong Kong branch of CITIC and its subsidiaries and associated companies in Hong Kong, including CITIC Pacific Limited, are hereinafter collectively referred to as 'CITIC Hong Kong'.

(d) Hang Chong was at all material times and is a public company limited by shares incorporated in Hong Kong.

(e) As at 28th March, 1991, the nominal capital of Hang Chong was HK$300,000,000.00 divided into 30,000,000 shares of HK$10.00 each. The amount of the capital paid up or credited as paid up was HK$210,318,370.00.

(f) Since 1986, CITIC Hong Kong has, under the direction of the Plaintiff, acquired substantial shareholdings in a number of publicly listed companies in Hong Kong, in particular a 20% stake in Hong Kong Telecommunications Limited and a 12.5% stake in Cathay Pacific Airways Limited.

(g) Hang Chong, through its numerous subsidiaries and associated companies, in particular Dah Chong Hong Limited, has a very wide and well established business interests in Hong Kong, including food, cosmetics products, transportation, household electrical appliances, construction materials, motor vehicles, advertisement, garments and fashions, and warehouses.

(h) The acquisition of Hang Chong by CITIC Pacific Limited was a matter widely publicized in newspapers and magazines in Hong Kong including Wen Wei Po and South China Morning Post, which have a wide circulation and readership in Hong Kong and Beijing.

Particulars of Facts and Matters on
which the Comment was Based

(a) On or about 3rd September, 1991, CITIC Pacific Limited announced the formation of a consortium, which involved the participation of certain well known business celebrities in Hong Kong, including Mr Li Ka shing, Mr Cheng Yu Tung and Mr Kuok Hock Nien, for the purpose of acquiring all the issued share capital of Hang Chong.

(b) By an offer document dated 24th September, 1991, the consortium made a general offer for all the issued share capital of Hang Chong at the price of HK$330.00 per share.

(c) By 22nd October, 1991, the consortium successfully acquired approximately 97% of all the issued share capital of Hang Chong.

(d) On or about 1st November, 1991, Mr Francis Yuen Tin Fan, former chief executive of the Hong Kong Stock Exchange Limited, was appointed the chief executive of Hang Chong.

(e) On or about 13th January, 1992, CITIC Pacific Limited announced its intention to purchase from the other parties in the consortium of their shareholdings in Hang Chong.

(f) On or about 13th January, 1992, Mr Francis Yuen Tin Fan tendered his resignation from his position as the chief executive of Hang Chong, to take effect in March, 1992.

(g) On 20th January, 1992, Mr Cheng Yu Tung mentioned, during an Extraordinary General Meeting of Shun Tak Enterprises Corporation Limited, that he regretted having to sell the 18% stake in Hang Chong held by Chow Tai Fook Enterprises Limited, a company controlled by Mr Cheng Yu Tung.

(h) The acquisition of Hang Chong by CITIC Pacific Limited was a matter widely publicized in Hong Kong and Beijing.

(i) In or about January 1992, the Plaintiff's father, Rong Yiren, visited Hong Kong.

(j) By 23rd March, 1992, CITIC Pacific Limited successfully purchased and became the owner of approximately 98.4% of all the issued share capital of Hang Chong.

The Defendants will, if necessary, rely on Section 27 of the Defamation Ordinance, Chapter 21, Laws of Hong Kong.

6. Still further or in the alternative, the said words are true in substance and in fact.

Particulars

The Defendants repeat the particulars of facts and matters pleaded under paragraph 5 hereinabove."

The defence concluded by denying that the words were defamatory, that the plaintiff had suffered loss and damage, that there was any threat to continue publishing and that the plaintiff was entitled to any relief.

9. On the 10th July 1992, the plaintiff's solicitors requested further and better particulars of paragraphs 5 and 6 of the defence, which the defendants provided on the 24th July 1992. The plaintiff was not satisfied and, on 15th September 1992, took out a summons for orders that the defendants within 14 days provide the further and better particulars specified in Schedule 1 to the summons, and that paragraph 6 of the defence and the further and better particulars served thereunder dated the 24th July be struck out.

10. On the same day, the 15th September 1992, the defendants took out a summons for leave to amend the defence.

11. Both summonses came before Leong J. on 22nd December 1992 with the result mentioned. The plaintiff filed his notice of appeal to this Court on the 4th January 1993. As indicated he seeks three matters - (a) the striking out of the plea of justification i.e. paragraph 6 of the defence; and by way of further and better particulars of the defence, (b) the English translation the defendants rely upon; and (c) that the defendants identify the comments they rely upon in their plea of fair comment.

12. Beginning with the first, it is clear and not in dispute that a defendant who relies upon justification must plead the meaning of the words he seeks to justify, and the material facts upon which he relies to establish that meaning (Lucas-Box v News Group Newspapers (CA) [1986] 1 WLR 147 at 151G - 152B; Viscount De L'Isle v Times Newspapers Ltd. (CA) [1988] 1 WLR 49 at 60; Morrell v International Thomson Publishing Ltd. (CA) [1989] 3 All ER 733 at 737J - 738B; R.S.C. O.18, r.7). The defendant's case is that it has pleaded the material facts in the particulars in paragraphs 5 and 6 of the defence, and the meaning of the words in the following answer given on the 24th July 1992 in response to the plaintiff's request:

Request under paragraph 6

"5. State each and every meaning of the words which the Defendants seek to justify."

Answer

"5. The meanings of the said words which the Defendants seek to justify are:

(a) that the Plaintiff used aggressive tactics in conducting the acquisition of Hang Chong;

(b) that a few of Hong Kong's wealthy people felt discontent with the Plaintiff's said conduct;

(c) that the Plaintiff's father, Rong Yiren, was not happy with the Plaintiff's said conduct and came to Hong Kong to teach his son how he should conduct business."

13. Mr Robert Tang, Q.C., who appears for the plaintiff with Mr Jat Sew Tong, submits that (b) and (c) of the foregoing particulars turn upon the conduct referred to in (a) of the particulars, and that therefore it is "aggressive tactics in conducting the acquisition of Hang Chong" that the defendants have to justify. He submits that no such justification can be substantiated by the particulars given in paragraphs 5 and 6 of the defence. Those particulars he contends are devoid of any suggestion of aggressive tactics, other than possibly a hint in paragraph (g) of the "Particulars of Facts and Matters on which the Comment was Based" in paragraph 5 of the defence, that one of the members of the consortium regretted having to sell his 18% share in Hang' Chong.

14. It has to be said that on the face of those particulars, it is difficult to see how they can sustain the charge of "aggressive tactics" and therefore how they can sustain the plea of justification. But Mr Martin Lee, Q.C., who appears for the defendant with Mr Anderson Chow, resists that submission on several grounds. He says that the defence and the further and better particulars "tell the plaintiff very clearly what case he has to meet, namely, that the plaintiff made use of his connection with the People's Republic of China to form a consortium with some business tycoons in Hong Kong with a view to acquiring the share capital of Hang Chong; and having successfully purchased 97% of those shares through this consortium, the plaintiff then decided to and did buy out everybody in the consortium, thus making some of his erstwhile partners unhappy. The defendants therefore say that the plaintiff used aggressive tactics in conducting the acquisition of Hang Chong." It can be readily seen that there is nothing of this in the defence and particulars, but Mr Lee contends that those are matters of inference which need not be pleaded, and if that is not accepted, then they are subordinate facts anyway, which likewise do not have to be pleaded (see para.18/7/3 of the Supreme Court Practice 1993 Vol 1 pp.289 - 290). Having regard to the circumstances, I am unable to accept that those matters do not have to be pleaded as being matters of inference or subordinate facts.

15. Mr Lee submits in addition that the charge is a specific charge and emphasises the limitation of the "aggressive tactics" to the particular acquisition of Hang Chong. In reliance upon para.18/12/18 of the Supreme Court Practice 1993, and Gordon Cumming v Green and Others [1891] 7 TLR 408 he submits that as such, and unlike a general charge, no particulars have to be provided in respect of it. But in the Gordon Cumming's case, the charges were "specific as to the time, place and also characters". Here, plainly in my view, the charge of aggressive tactics, without any indication of their number, nature and the occasions on which they are said to have occurred, is a general charge. Further in terms of the fundamental underlying principle, the present particulars will not enable the plaintiff and the court to know the case that has to be met.

16. In the result I have no difficulty in concluding both that the particulars given are insufficient, and that they cannot sustain the defendant's plea of justification. At the same time I am not persuaded that the plea is plainly or obviously unsustainable. I would therefore strike out paragraph 6 of the defence, but without prejudice to any application by the defendants for leave to restore by way of amendment, such a plea properly pleaded. It is because of that conclusion and the possibility that matters of the sort considered may have again to be addressed, that their consideration has been somewhat tersely recorded in this judgment.

17. I turn then to the second matter in issue, i.e. whether the defendants must plea the translation they rely upon.

18. Mr Tang submits that this is not a case of the defendants simply putting the plaintiff to proof; that on the contrary they advance a positive case that the plaintiff's translation is wrong, and that the words do not mean what the plaintiff says they mean; and that a fortiori, in the context of that background their pleas are positive pleas of fair comment and justification. Upon the authority of paragraphs 1072 and 1297 of Gatley on Libel and Slander, 8th Edition, he submits that a plaintiff who sues in defamation in a foreign language, is required to plead the English translation, and that since the defendants deny or do not admit the plaintiff's translation, a corresponding obligation to plead their translation is simply the "reverse of the coin" using the concluding language of that part of the judgment of Ackner L.J. which appears at p 151G - 152A in the Lucas-Box case. In denying or positively not admitting the plaintiff's translation, he submits, the defendants are making a positive assertion of a different translation upon which they found their positive defences of fair comment or justification. The correct translation thereby becomes a material fact necessary to the defendants' case and should be pleaded (O.18, r.12(1), the Supreme Court Practice 1993, para.18/12/2). Just as the meaning sought to be justified has to be pleaded (see the Lucas- Box and Morrell cases) a different translation, and hence different meaning, must also be pleaded. He submits that the matter is one of substance which would inform the plaintiff of the nature of the case he has to meet, enable him to put his translation to his expert and so prepare for trial, define the issues to be tried e.g. whether the pleaded meanings could be supported on the translation, would tie the hands of the defendants as to what they claim is the meaning of the article thereby narrowing the issues for trial and avoiding surprise, and accord with the modern practice in libel cases in avoiding technicality and approaching the litigation with openness on both sides (see the Viscount De L'Isle case at 59B and 63).

19. Mr Lee for his part emphasises that the object of further and better particulars is to inform the plaintiff of the case he has to meet and the issues between the parties (Supreme Court Practice 1993 para.18/12/2), and that the alleged defamation is contained in an extremely short article with the crux of the plaintiff's complaint being the opening sentence. He submits that the amended defence and further and better particulars apprise the plaintiff very clearly of the case he has to meet. He goes on to explain that the defendants' primary defence involves three successive positions. First, that they deny/do not admit the English translation proferred as accurate. Second, that the first sentence of the Chinese article complained of does not mean what the plaintiff has alleged it to mean. And third, that in any event the meaning alleged by the plaintiff is not libellous. He submits that therefore, if the defendants' primary defence fails, they would then rely on the defences of fair comment and/or justification. But by then the court would have accepted the plaintiff's translation as accurate and the defendant would therefore have to run their alternative defences on the plaintiff's translation. That seems to me too facile a view of the matter. Moreover, as Mr Lee submits in another context, it is the meaning that is established that will determine the outcome of the proceedings rather than the translation accepted.

20. Mr Lee agrees that the plaintiff is obliged to set out the actual words used in Chinese and to give the English translation. Such a burden, he submits, is clearly on the plaintiff. But he does not accept that the defendants bear a similar burden, notwithstanding that they deny or do not admit the plaintiff's translation, and do plead justification and fair comment. He relies upon paragraph 1297 of Gatley which he points out refers to a plaintiff's obligation to plead a translation, but makes no such reference to a corresponding obligation on the part of a defendant. Moreover he urges that there is no authority for the proposition that the defendant in a libel action upon words published in a foreign language who does not accept the plaintiff's translation has to plead or furnish his translation before he can raise the defences of fair comment or justification. Mr Lee stresses that the defendants have clearly pleaded in the further and better particulars provided, the meanings of the Chinese words they rely upon. Therefore he submits they need not plead the English translation of those words, particularly as it does not form part of the defence, which in that regard stands or falls upon the meaning pleaded in the further and better particulars.

21. In Collins v Jones [1955] 1 QBD 564 at 571 Denning L.J., as he then was, said:

" In a libel action it is essential to know the very words on which the plaintiff founds his claim. As Lord Coleridge C.J. said in Harris v. Warre (1879) 4 C.P.D. 125, 128:

'In libel and slander everything may turn on the form of words, and in olden days plaintiffs constantly failed from small and even unimportant variance between the words of the libel or slander set out in the declaration and the proof of them... In libel and slander the very words complained of are the facts on which the action is grounded. It is not the fact of the defendant having used defamatory expressions, but the fact of his having used those defamatory expressions alleged, which is the fact on which the case depends.'"

In my view the position is similar where, as here, the defendants deny the plaintiff's translation and proceed to plead fair comment and justification without giving the translation relied upon. Notwithstanding that the meanings primarily relied upon have been pleaded, the words complained of are the facts upon which the two pleas in defence are grounded. And while the words in Chinese are admitted, the language of the Court is English and it is in that language that those words must be rendered and pleaded. Without such pleading the court would be unable to begin to properly address the two defence pleas; likewise the plaintiff, who is entitled to know the positive defence case he has to meet. Expressed in a different way, upon the denial of the plaintiff's translation and the making the pleas of fair comment and justification, the defendants' translation as the factual foundation of those pleas is a positive assertion that must be pleaded.

22. It is no answer to say, as Mr Lee has sought to do, that the plaintiff has only to seek the directions of the court or to put in his certified translation to procure the defendants' translation, in the latter alternative by operation of s.5 of the Official Languages Ordinance (Cap.5), s.27 of the Evidence Ordinance (Cap.8) and the Practice Direction on Chinese Translations (1990 Ed. p.11.6). Nor is it any more of an answer to say, again as Mr Lee has said, that the plaintiff will in any event be given the defendants translation, but all in good time and no later than "7 days prior to the hearing", i.e. the deadline in paragraph 4 of the Practice Direction. The translation should have been pleaded at the very outset.

23. For those reasons I reject Mr Lee's submissions and would order the defendants to furnish their translation to the plaintiff.

24. I turn finally to the third matter i.e. whether the defendants should be required to identify what they assert to be comment. Mr Tang submits that it is not obvious what the comment is. The defendants should be required to identify it so as to avoid surprise. It is not sufficient, he says, for Mr Lee to say orally from the bar what the comment is.

25. It is not in dispute that the law is set out in Control Risks v New English Library [1990] 1 WLR 183 at 189A - D. Nicholls L.J., with whom Sir George Waller and Dillon L.J. agreed, put it this way:

"In my view the starting point is to identify the comment the defendants say is to be found in the words complained of and which they are seeking to defend as fair comment. At once one runs into difficulty with the pleading as drafted. Nowhere ... does the pleader identify this comment. This is manifestly unsatisfactory. A plaintiff is entitled to know what case he has to meet under a defence of fair comment just as much as he is entitled to know what case he has to meet when faced with a defence of justification. Where justification is pleaded, a defendant is now reqired to spell out in his pleading the meaning of the words, which if it is their true meaning, he will seek to justify. These are the so-called 'Lucas-Box' particulars: see Lucas-Box v News Group Newspapers Ltd ..... and the observations of Mustill L.J. in Viscount De L'Isle v Times Newspapers Ltd .... In my view by parity of reasoning, when fair comment is pleaded the defendant must spell out, with sufficient precision to enable the plaintiff to know what case he has to meet, what is the comment which the defendant will seek to say attracts the fair comment defence.

No doubt there may be very simple cases where the position is obvious and a plaintiff, confronted with a plea of fair comment, will need no further guidance on what is the comment to which the plea is directed. That is not the present case."

Mr Lee submits that this is one such very simple case where the position is obvious. I do not agree. Even the first sentence of the article which Mr Lee has identified from the bar, appears to contain more fact than comment. Furthermore, when requested to "identify with precision 'the comment' referred to in the underlined heading on page 4" the defendants answered "the 'comment' referred to in the underlined heading on page 4 of the defence is a reference to such statements in the article complained of as might be found by the court to be expressions of opinion". That answer provided no particulars and was unhelpful. Mr Lee's statement from the bar that "only the first sentence is comment" cannot be accepted in place of particulars formally pleaded. It does however indicate that the defendants should have no difficulty in providing the particulars sought.

26. We were told that the authorities cited to us were also cited to the judge. Plainly therefore the judge overlooked or misconstrued the effect of the Control Risk case. The exercise of his discretion must therefore be set aside for that reason and this court becomes entitled to exercise that discretion (Hadmor Productions v Hamilton (H.L.(E.)) (1983) 1 AC 191 at 220A-E). I would accordingly order the defendants to identify with precision "the comment" referred to.

27. To sum up, for the reasons I have endeavoured to give, I would allow the appeal and: (a) set aside the orders dismissing the plaintiff's summons for further and better particulars and awarding the defendants' costs; (b) strike out paragraph 6, but without prejudice to application by the defendants to amend to re-plead justification; (c) order the defendants to state the English translation requested; (d) order the defendants to identify with precision "the comment" they refer to; and (e) make an order nisi that the plaintiff has his costs of the appeal and the summons below, certified for two counsel.

Bokhary, J.A.:

28. I agree with the order proposed by my brother Nazareth.

29. However, in deference to the learned judge with whose view we are differing and to the argument so skilfully advanced in support of that view by Mr Lee for the defendants, I add something of my own.

The words in the language of the proceedings

30. I will deal with the language issue first. The defendants have denied the accuracy of the plaintiff's English translation of the words complained of. That they have done in blanket terms without specifying the extent to which they say that it is inaccurate.

31. They deny that the words which they (as the editor, publisher and proprietor respectively) published in their magazine of the plaintiff's conduct in regard to the Hang Chong takeover are defamatory, whether as translated by him or as they would translate those words. But they do not stop there. For they go on to plead, in the alternative, a positive case of fair comment and, in the further alternative, a positive case of justification.

32. Both of those positive pleas - and indeed the whole of the defence - are of course pleaded in English, which (by virtue of s. 5 of the Official Languages Ordinance, Cap 5) is the language in which the proceedings in this action must be conducted.

33. Since the defendants deny the accuracy of the plaintiff's translation but plead none of their own, there is no pleading of the words which the defendants say constitute fair comment and are justified.

34. For the defendants, Mr Lee accepts that a plaintiff who complains that he was defamed by words in a language other than English must plead the words complained of in English. But he does not accept that such obligation is founded on any rule which governs the pleadings on both sides. He contends that it is founded simply on the fact that the party fixed with it is a plaintiff. Despite the skill with which Mr Lee developed his point, I am unable to accept it. In the course of the argument, I drew counsel's attention to Order 18 rule 7(2) and the note thereon in the 1993 Supreme Court Practice, being note 18/7/8 at p. 291 in volume 1. The sub-rule reads:

"Without prejudice to paragraph (1), the effect of any document or the purport of any conversation referred to in the pleading must, if material, be briefly stated, and the precise words of the document or conversation shall not be stated, except in so far as those words are themselves material."

And the note reads:

"Effect or purport of document or conversation - Para. (2) is taken from the former O. 19, r. 21. This very sensible provision was first enunciated by Lord Mansfield (see Bristow v. Wright (1781) 2 Doug. 665).

Where the precise words of a document or conversation are not themselves material they must not be stated in the pleading, but only the effect of the document or purport of the conversation should be stated; and conversely if the precise words of a document are themselves material, they must be set out in full in the pleading.

In an action of libel the precise words of the document are material (Harris v. Warre (1879) 4 C.P.D. 125); but in leaving the case to the jury the Judge may invite them to say whether the defendant used words to the like effect (per Bankes L.J., Fournier v. National Provincial Bank (1924) 40 T.L.R. 214, p. 216). In some cases the precise words of a clause in a will may be material (Darbyshire v. Leigh [1986] 1 Q.B. 558, p. 559). If a document is referred to in a pleading, but neither its effect stated nor its precise words set out, it cannot be read without consent, on a summons or motion for judgment or on a motion to strike out a statement of claim as not disclosing any reasonable cause of action (Howard v. Hill [1887] W.N. 193; and see Williamson v. L. & N.W.Ry. (1879) 12 Ch.D. 787; and Smith v. Buchan (1888) 36 W.R. 631)."

35. Turning to the case of Harris v Warre (1879) 4 C.P.D. 125 cited in that note, one finds this statement in the judgment of Lord Coleridge C.J. (at p. 128): "In libel and slander everything may turn on the form of words ..." (my emphasis). Included among the things on which an action in defamation may turn are of course the defences of fair comment and justification. And even as the issue of whether words are defamatory (which is for the plaintiff to establish) may turn on the form of words, so may the success or failure of defences such as fair comment and justification (which are for the defendant to establish). The obligation of a plaintiff who complains that he was defamed by words in a language other than English to plead the words complained of in English is not founded on the fact that he is a plaintiff. Plaintiffs are not discriminated against under our law. The obligation is founded on the general principle that he who asserts must prove, coupled with this cardinal rule of pleading, now embodied in Order 18 rule 7(1) and (2). Every pleading must contain the material facts on which the party pleading relies for his claim or defence: setting out those facts in summary form, save where the precise words of a document or conversation are material, in which case the precise words must be set out.

36. What I have said so far is sufficient to demonstrate that a defendant who pleads fair comment or justification must do so on the basis of a rendition in the language of the proceedings, English, of the words which he pleads constitute fair comment or are justified. But if that conclusion needs further support, the same is to be found in two statements of principle: one in regard to the function of particulars generally and the other in regard to justification in particular but applicable by parity of reasoning to fair comment as well. The first is the statement, now in note 18/12/2 at p. 307 in volume 1 of the 1993 Supreme Court Practice, which Edmund Davies L.J. cited with approval in Astrovlanis Compania Naviera S.A. v Linard [1972] 2 Q.B. 611 at p. 620F:

"The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises and incidentally to reduce costs."

And the second is the one by Ackner L.J., delivering the judgment of the Court of Appeal in England in Lucas-Box v News Group Newspaper Ltd [1986] 1 W.L.R. 147 at p. 153G, that "a defendant who is relying upon a plea of justification must make it clear to the plaintiff what is the case which he is seeking to set up."

37. Each party is entitled to know - and to know from the opposite party's pleadings - the case which he has to meet. The object of that principle is fairness, openness, freedom from surprise, orderly preparation for trial, and the saving of time and costs.

38. In seeking to deny the plaintiff's right to know the precise words, in the language of the proceedings, which the defendants say constitute fair comment and are justified, Mr Lee places reliance on the Practice Direction on Chinese Translations which appears at p. 11.6 of the latest i.e. 1990 edition of Practice Directions, and which reads:

"1. Any party may prepare a translation and have it certified by the Court Translator.

2. In any action begun by writ, a copy of the proposed translation must be served on all parties to the proceedings within 3 days of submission of the same to the Court Translator.

3. Any party to any proceedings may, if he so wishes, submit to the Court Translator for certification his own proposed translation of a document which the other party has submitted for certification or which has already been so certified. The party submitting such subsequent translation must annex therewith a copy of the original proposed or certified translation of the other party.

4. If any certified translation is challenged, a notice giving full particulars of the challenge and the alleged proper translation or alleged alternative translation must be served on all parties to the proceedings and the Court Translator within 14 days of the receipt of a copy of the certified translation; but in no case shall such notice be served later than 7 days prior to the hearing.

5. Upon being served with a notice of challenge, the party producing or intending to produce such certified translation shall give reasonable notice of the hearing to the Court Translator who may then be cross-examined at such hearing."

But that goes to evidence. It cannot - and does not even attempt to - modify the rules of pleading.

39. For the reasons which I have given, the plaintiff is, in my judgment, entitled to the particulars by which he seeks the words, in the language of the proceedings, on which the defendants, who do not accept his translation of the words complained of, base their positive defences of fair comment and justification.

Identifying comment defended as fair comment

40. In Control Risks Ltd v New English Library Ltd [1990] 1 W.L.R. 183, a recent decision of the Court of Appeal in England, Nicholls L.J. said (at p. 189C) that "when fair comment is pleaded the defendant must spell out, with sufficient precision to enable the plaintiff to know what case he has to meet, what is the comment which the defendant will seek to say attracts the fair comment defence."

41. The defendants have not done that. Mr Lee's contention is that they do not have to. And he relies on the very next thing which Nicholls L.J. went on to say (at p. 189D) which is that "there may be case where the position is obvious and a plaintiff, confronted with a plea of fair comment, will need no further guidance on what is the comment to which the plea is directed". As to the facts of the present case relevant to this point, Mr Lee contends that the only portion of the words complained of which can fairly be described as comment is the first sentence so that it must be obvious to the plaintiff that it is only in respect of that sentence that he will be faced with the defence of fair comment.

42. Mr Tang for the plaintiff says that his side does not find that at all obvious, since they take the view - and advance the argument - that no part of the words complained of constitutes comment. And he makes the point that if the defendants' position needs clarification, then such clarification should be written rather than oral.

43. The first sentence, as translated into English by the plaintiff, reads: "Prince Kin (Yung Chi Kin) 'bought up' Hang Chong by resorting to methods that were more savage than Wah Sau's dog". As I have pointed out, that translation is not accepted by the defendants who have not put forward any translation of their own. From what was said in the course of the argument, it may well turn out that the only or only material dispute over translation will be over a single word, namely, the Chinese word. Did the defendants say (as the plaintiff's translation would have it) that his conduct in relation to the Hang Chong takeover was more "savage" than that legendary creature? Or did they say (as I suspect is or will be their case) that his conduct in relation to that takeover was more "aggressive" than that creature? In short, is to be translated as "savage" or as "aggressive"?

44. There are of course a number of complications. The plaintiff says that even "aggressive" would be defamatory; while the defendants say that not even "savage" would be defamatory. And they seek to run the defences of fair comment and justification not only on their own translation yet to come but also on the plaintiff's translation.

45. In the whole of the circumstances, there is nothing so obvious about the defence of fair comment as the defendants propose to run it as to justify denying the plaintiff the particulars by which he seeks to discover what is the comment to which the plea of comment is directed. He is, in my judgment, entitled to the same.

Striking out the plea of justification

46. The plaintiff seeks to strike out the plea of justification on the basis that the particulars pleaded in support of it cannot sustain it.

47. Two answers are made by the defendants. The first is that, in truth, no particulars of that plea are required because the charge which they seek to justify is a specific charge. And the second is that, in any event, the particulars can sustain the plea or, at the lowest, that it is not plain or obvious than they cannot sustain it.

48. As to whether the charge of savagery or aggression is specific or general, Mr Tang (inspired by the Victorian "cheating at cards" case before the Divisional Court of the Queen's Bench Division on appeal from a judge in chambers, Cumming v Green (1891) 7 T.L.R. 408) gave this illuminating illustration (which he helpfully put in writing and which I grateful quote):

"(a) P is a cheat

(b) P cheated at cards last night

(c) P cheated at cards playing with A, B and C last night by raising or reducing his stakes dependent on whether the cards were favourable to him or not

(c) is Cumming v Green situation. It is common sense that no further particulars are needed.

(a) is a general charge and cries out for particulars.

(b) is less general than (a) but is still general and cries out for particulars."

49. Mr Tang's point is, in my view, well taken. The allegation that the plaintiff had "bought up" Hang Chong by resorting to methods that were more savage/aggressive than Wah Sau's dog is general. It is not so wide as an allegation that he had resorted to takeover methods that were more savage/aggressive than that creature. But it is nevertheless general because it does not specify the methods in question. Only if it did that would it be specific. So the first answer made by the defendants fails.

50. I turn to their second answer. In the course of the argument, Mr Lee said that, given the plaintiff's position and connections, people who wanted to do business in China would find it very difficult to say "no" to him if, having brought them into a consortium to take over a company, he approached them after the consortium had succeeded, seeking to buy up all their shares in the newly acquired company. That, Mr Lee says, was the situation here. And therein, he says, lies the conduct accurately characterised as more aggressive or even savage than Wah Sau's dog.

51. But that case is not pleaded. Mr Tang contends that even if had been pleaded it could not sustain a plea of justification. But he is content that we say nothing on that question one way or the other.

52. In my judgment, the existing plea of justification is unsustainable and the learned judge should have struck it out rather than giving leave to amend it in the way in which the defendants sought, before him, to amend it, as that did nothing to turn the plea into the one conforming with what is really the case which the defendants say is their case on justification.

53. The striking out of the existing plea of justification leaves the defendants free to seek an amendment of the defence to include a fresh plea of justification. For my part, I say nothing either to encourage or to discourage the defendants from seeking such an amendment. No such amendment has yet been formulated. It must not be pre-judged. If it is sought, it will then be considered - at first instance by a tribunal of first instance.

Representation:

Mr Robert Tang, Q.C. and Mr Jat Sew Tong (M/s JSM) for Appellant

Mr Martin Lee, Q.C. and Mr Anderson Chow (M/s Hau Lau Li & Yeung) for Respondents