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

CACV 139/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 139 OF 2010

(ON APPEAL FROM HCA NO. 607 OF 2008)

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BETWEEN

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Before: Hon Tang VP, Cheung JA and Chu JA in Court

Date of Hearing: 22 September 2011

Date of Decision: 22 September 2011

Date of Reasons for Decision: 30 September 2011

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REASONS FOR DECISION

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Hon Tang VP:

1.The background to this application can be found in the judgment of this Court dated 15 April 2011 and I will not repeat them.

2.The Plaintiffs are dissatisfied with the substantial reduction in the damages awarded by the trial judge and seek leave to appeal to the Court of Final Appeal. 

3.On the basis that the proposed appeal involves questions of great general or public importance, five such questions appear in the Notice of Motion. 

4.The first two questions relate to so-called the "repetition rule".  Mr Lawrence Ng, who appeared on behalf of the Plaintiffs, submitted the fact that the Plaintiffs' claims concerned a repetition of a libel is irrelevant to mitigation of damage.  However, he accepted (as was submitted on behalf of the Plaintiffs by Mr McCoy, SC, in the appeal) sometimes repetition could do more harm than the original libel such that the damages for the repetition should be higher.  Thus he submitted the circumstances of the repetition could "aggravate damage" but not mitigate them.

5.Even so, Mr Ng accepted that the circumstances of the repetition, for example, who repeated the defamation - here a newspaper, the circulation of the newspaper etc. – are relevant to the assessment of damages.  When Mr Ng was asked whether he was contending that if the originator of the libel should be adjudged liable to pay a certain sum in damages, a repeator of the libel may be ordered to pay more by way of damages but never less.  He said "Yes".  With respect, that cannot be right, for example, the original libel might have appeared in a newspaper with a large circulation and repeated by an obscure newspaper.

6.I cannot agree that leave should be granted in relation to such questions.

7.The 3^rd question is:

"(3)  In what circumstances, and to what extent, may the quantum of damages in a defamation action be affected by a newspaper's 'non-adoption' of the truth of the defamatory allegation made by a third party that it has prominently published and for which it has refused to apologise?"

8.Mr Ng submitted the following observation by Simon Brown LJ (as he then was) in Stern v Piper and Ors [1997] QB 123 at 138D-E that:

"… The facts that the defendants did not actually assert the truth of (the third party's) allegations may be available to them by way of mitigation of damages; he cannot, however, found the defence."

is not only orbiter but wrong. 

9.But, surely, whether a repeated libel was asserted by the defendant as true, may be relevant to assessment of damages.  Depending on the circumstances, it may have some effect, little effect or no effect at all on the ultimate award.

10.The fourth question relates to whether the quantum of damages in a defamation may be affected by the credibility of the defamatory statement.

11.Mr Ng submitted that no matter how lacking in credibility a defamatory statement may be, that is not relevant to the quantum of damages.  But as Mr Anderson Chow, SC, who appeared for the Defendants, submitted, the functions of general damages in defamation cases include repairing the harm to the claimant's reputation and vindication of his reputation.  See para. 35 of my judgment citing Campbell Richard Blakeney-Williams and Ors v Cathay Pacific Airways Ltd and Anor [2011] 1 HKLRD 901 at para. 187.  Here the allegations were made by a notorious criminal who calls himself Hong Kong Osama bin Laden.  Given the nature of his allegation and the fact that he had been convicted by a magistrate, it must be obvious to many readers that the allegations had no substance, validity or credibility. That is relevant to what harm or injury had been done to the plaintiffs' reputation.

12.The fifth question, as explained by Mr Ng, is that we have set aside findings of fact in first instance and substituted our own findings of fact. He asked us to compare paras. 20, 47, 56 and 57 of my judgment with para. 35 to 40 and 48 to 50 of the judgment of the learned trial judge.

13.With respect, the comparison does not advance Mr Ng's submission.

14.Mr Ng submitted that since the learned judge had said nothing about the credibility or lack of credibility of the defamatory remarks, insofar as we expressed the view that the statements lack credibility we have substituted our own findings of fact.

15.Mr Ng referred to para. 47 of my judgment where I said:

"47.  Moreover, there, as in Jameel, the articles purported to be investigative journalism, and presumably presented as credible.  Here, it is a repetition of accusations by a notorious criminal. Indeed accusations which many would regard as incredible."

16.This also does not involve a point of great general or public importance.

17.Mr Ng also relied on the "or otherwise" ground.  But leave to appeal is rarely granted on this basis.  This is not a suitable case for leave on this basis.

18.For these reasons, I have dismissed the application for leave to appeal with costs.

Hon Cheung JA:

19.I agree.

Hon Chu JA:

20.I agree.

Mr. Lawrence Ng instructed by Messrs Iu, Lai & Li for the Plaintiffs/Applicants

Mr. Anderson Chow, SC instructed by Messrs ONC Lawyers for the Defendants/Respondents