Wong Wai Kay v. Hong Kong Economic Journal Company Ltd and Another
Read the full judgment text of HCA 1385/2010 on BabelCite. This High Court CFI judgment was delivered on 26 April 2013.
1. The plaintiff commenced this action in September 2010 suing the defendants in libel and malicious falsehood. The defendants were (admittedly) the publisher (“ the Publisher ”) and editor (“ the Editor ”)respectively of the newspaper article in question (“ the subject article ”).
Cited by 9 cases · Cites 4 cases
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HCA 1385/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1385 OF 2010 ____________
_______________ J U D G M E N T _______________ INTRODUCTION 1.The plaintiff commenced this action in September 2010 suing the defendants in libel and malicious falsehood. The defendants were (admittedly) the publisher (“the Publisher”) and editor (“the Editor”)respectively of the newspaper article in question (“the subject article”). 2.The defendants deny the claim and contend that:
RELEVANT BACKGROUND FACTS 3.Below are some of the common grounds between the parties:
THE ALLEGED LIBEL 4.It is undisputed the subject article can be broken into:
According to the plaintiff’s pleadings, the offending parts appear at the headline and the introductory paragraph (sub-para (a) and (b) above) (respectively “the first offending part” and “the second offending part” and collectively “the offending parts”). 5.The subject article’s first offending part (the headline) is:
The parties do not dispute the Chinese characters “無綫” refer to Television Broadcasts Ltd, a free television broadcaster of long-standing fame among the local populace (“TVB”). 6.The second offending part (the introductory paragraph) is:
7.In both the opening and final submissions, the plaintiff contends that the “sting” of the defamation is that:
(para 18, plaintiff’s opening submissions and para 12, plaintiff’s final submissions). 8.On the other hand, the defendants’ primary stance is that the subject article bears no defamatory imputation of and concerning the plaintiff. Their alternative stance is the limited libel, that is, the defamatory imputation is at most that the plaintiff was an arrogant person. MEANING OF THE SUBJECT ARTICLE (a) Legal principles 9.The legal principles relevant to this aspect are undisputed:
There is no reliance on the “innuendo” defamatory meaning. 10.The above have been considered when I determine the true meaning of the subject article. (b) Other features/passages of the subject article 11.Several matters set out in the subject article are relied upon by the plaintiff (apart from the offending parts set out in para 4 to 6 above). 12.First, during the interview, the plaintiff never used the words “膚淺”. The closest phrase he has used was “好淺” (and it was used in the following context). The plaintiff informed Ng about his perception of Hong Kong’s need of the media:
He continued:
Later, he also said this about the same topic:
(interview note compiled by the plaintiff’s staff, Ms Cheng (“Cheng”) (“Cheng’s note”)). 13.In relation to the last-mentioned statement, the subject article contains the following text:
14.Secondly, the phrase “膚淺” bears a meaning different from the phrase “好淺” (or simply “淺”). The former implies a value-judgment in that it suggests an incapability of sophistication, or a lack of depth, while the latter merely indicates a choice (or perception), namely, being simple/brief and easy to understand. 15.Thirdly, the use of quotation marks for “膚淺” (the headline) and “知識戰勝膚淺” (the introductory paragraph) indicates to a reader that those phrases were the plaintiff’s. 16.Finally, the subject article indicates to an ordinary reader that the plaintiff criticized TVB for being “shallow”. 17.All of the above four matters are disputed by the defendants:
18.On the other hand, the defendants draw attention to the manner in which the subject article has been structured:
(c) Analysis 19.I agree with the plaintiff and disagree with the defendants. 20.In relation to the headline, the phrase “「膚淺」” (in quotation marks) follows almost immediately the word “批” (which means “criticizes”). To place an adjective “shallow” so close to a verb “criticizes” would make a reader think that the adjective was uttered by the speaker. Putting the phrase within quotation marks in such manner reinforces that impression. 21.Further, the meaning of the phrase actually used by the plaintiff (“好淺”) has to be construed in context (which has been set out in para 12 above). What the plaintiff meant was merely that the existing free television broadcasters have chosen a simple/brief and easy to understand approach with their news programs (targeting at the sector of their audience which wants to “switch-off” from their busy daily lives). 22.In relation to the introductory paragraph, the phrase “「知識戰勝膚淺」” (in quotation marks) follows closely the words “[the plaintiff] 信心爆棚的說”. While quotation marks can also serve other functions in writing, when the phrase:
a reader would reasonably be led to think that the phrase came from the plaintiff. Similar to para 20 above, placing the phrase within quotation marks in such manner reinforces that impression. 23.As regards the headline’s reference to the plaintiff criticizing TVB for being “shallow”, despite the interviewer’s questions, it is obvious none of the plaintiff’s answers were targeted at any particular television broadcaster; the relevant answers used phrases such as “現在的媒體”, “傳統想法” and “現時的四、五個電視台”. WITNESSES’ CREDIBILITY AND FINDINGS OF FACT 24.The plaintiff testified for his case. He also called Cheng, who was responsible for corporate communications, as his witness. Only the Editor testified for the defence. 25.The witnesses’ testimony is relevant to the following matters:
26.I accept the plaintiff’s two witnesses to be truthful and reliable. The defendants have not challenged their honesty or reliability in their written submissions. Accordingly, I find the matters set out in para 25(2) above as a fact. In relation to para 25(1) above, I also find it to be a fact, based on the totality of the evidence (that is, the testimony of the plaintiff’s witnesses and the matters set out in para 12 and 14 above), that the plaintiff has not uttered the words “膚淺” or some words to such effect. 27.Without disrespect to the Editor, I find parts of his testimony less than convincing (some of his answers show signs of being evasive). But because it is unnecessary to determine the question of the defendants’ malice (see under the headings “Defence of Fair Comment” and “Malicious Falsehood” below), no definitive findings of his credibility or reliability will be made. WERE THE WORDS DEFAMATORY? 28.As stated above, the thrust of the defendants’ primary case is that, although the phrase “膚淺” is derogatory, the whole of the subject article (including the offending parts) is not derogatory of and concerning the plaintiff (whether it is derogatory of other third parties is irrelevant to this action). 29.Their case can perhaps be better illustrated by examining two examples which may bear some similarity to (though not exactly the same as) the offending parts. Suppose the headlines of two articles assert that:
(collectively “the hypothetical headlines”). The plaintiff apparently does not contend that the above reports should be considered defamatory of the speakers A and/or B simply because of the hypothetical headlines. 30.But in the context of this action, so the plaintiff argues, the subject article’s readers would take into account the fact that, as summarized in para 3(4) above, the plaintiff’s company has applied for a free television broadcasting licence, and TVB would be one of the plaintiff’s business competitors (perhaps a major competitor) (this fact can also be found in the introductory paragraph). 31.The importance of such a fact is, so the plaintiff’s argument continues, it would make a reader of the subject article think that the plaintiff has the motive to demean the plaintiff’s business competitors in public (bearing in mind an ordinary reader’s temperament of being “guilty of a certain amount of loss thinking” and the like). 32.As stated above (para 9(e) above), whether the text of an article will be sufficient to neutralize the defamatory implication of a headline is a question of fact. A sensational headline such as the hypothetical headlines (especially the Mother Teresa headline, which some would regard as outrageous) would arouse so much interest to an ordinary reader that he would want to read the article’s text to see if the assertion can be substantiated. For that reason, there is good reason to conclude that the text of the articles carrying the hypothetical headlines would be read by the ordinary reader as well. 33.Even if the plaintiff’s argument is correct in that an ordinary reader is more ready to infer improper motive in the present context (that is, the plaintiff and TVB are potential business competitors), as he (rightly) accepts, the ordinary reader would read the whole of the subject article before he would conclude what the subject article’s imputation(s) is/are. 34.One relevant part of the subject article’s text has been set out in para 13 above. The text of the subject article which precedes that part begins with a summary of the plaintiff’s view that:
The text also contains what purports to be its writer’s own observations:
When the above was put to the plaintiff, he expressed confidence in his company’s investment. He also expressed that he was not afraid of competition because competition would mean his approach is worthy of imitation. 35.When the subject article’s text is read in such light (which an ordinary reader would), an ordinary reader would find that it imputes that the plaintiff opined that he would be able to profitably exploit a market sector hitherto unexploited by the plaintiff’s business competitors. In other words, it bears no defamatory imputation of and concerning the plaintiff (in that the subject article imputes that he has demeaned the plaintiff’s business competitors and so on). 36.An ordinary reader would find the above to be the single meaning of the subject article. No doubt the offending parts by themselves can potentially bear a defamatory imputation (see para 5 to 6, together with 19 to 23 above). However, having read the whole of the subject article:
Thus, if there should be any adverse impression arising out of the discrepancies between the offending parts and the text, the unfavourable impression would rather be against the writer/editor of the offending parts (for compiling the unsubstantiated headline and introductory paragraph), rather than the plaintiff. 37.I pause here to note that, while it is often legally incorrect to ascertain an article’s imputation by looking only at its headlines (Charleston v News Group Newspaper Ltd [1995] 2 AC 65, 73), the court long observed that the following argument had considerable attractions:
As state above, there may be cases where the text will be insufficient to neutralize the harm caused by the headlines. 38.Having reached the above conclusion, it is strictly unnecessary to consider the limited libel (see para 2(b) and 8 above). If it were necessary to do so, I would have concluded that accusing a person of being arrogant is defamatory (in fact, this is admitted by the defendants: para 20(2), defendants’ opening submissions). DEFENCE OF JUSTIFICATION 39.Similar to para 38 above, it is unnecessary to consider this aspect. If it were necessary, I would also have agreed with the plaintiff that the defendants are unable to establish this defence even in relation to the limited libel. My reasons for so holding are:
40.If (contrary to my above conclusion) the subject article in fact does bear the defamatory imputation contended for by the plaintiff (which involves the factual assertion that the plaintiff has demeaned in public the plaintiff’s business competitors), the defendants are a fortiori unable to establish this defence. DEFENCE OF FAIR COMMENT 41.Again, it is unnecessary to determine this aspect. 42.I will do so briefly for completeness. I agree with the plaintiff that the offending parts are not recognizable as comments, and are not based on facts which are true. MALICIOUS FALSEHOOD 43.For the same reasons set out under the previous headings, I do not consider the plaintiff to be able to establish this cause of action either. DAMAGES 44.This will only be mentioned briefly for completeness. The defamatory imputation contended for by the plaintiff does not appear to be serious enough to warrant a substantial sum. It seems to belong to the kind of defamation for which the plaintiff’s reputation would largely be vindicated by the pronouncement of a judgment in his favour. 45.On the other hand, I do not agree with the defendants that mere nominal damages should be awarded. 46.It appears therefore an award of general damages in the range of $100,000 to $200,000 would be appropriate. CONCLUSION 47.The plaintiff’s claim is dismissed. OTHER MATTERS 48.The trial was set down for 3 days. On the second day, and during the course of the Editor’s cross-examination, the plaintiff sought to adduce new evidence for the purpose of cross-examination. The defence opposed the application. The application was refused. Below are the reasons for the ruling. 49.The new evidence which the plaintiff intended to adduce was the first 30-second or so of a recording showing the Editor’s earlier interview by the host of a television program. The relevant video contained:
50.The plaintiff’s stated purpose for adducing the new evidence was to elicit evidence of the defendants’ malice (in relation to the defence of fair comment, and the cause of action in malicious falsehood). It was only disclosed to the defence on the said occasion. 51.I agreed with the defence:
52.The parties’ closing submissions also mentioned various other points. These have not been expressly set out or dealt with in the above headings and sub-headings. This is so only because of the need to balance between the length of the judgment and its comprehension. It does not mean those other points are thought to be irrelevant (or have been overlooked). To avoid doubt, those other points have also been considered. COSTS ORDER NISI 53.I will refrain from pronouncing any costs order in the event the parties find it necessary to put forth their submissions on costs after sight of this judgment. They are at liberty to do so (if so advised) within 14 days from today.
Mr Benjamin Yu SC leading Ms Bonnie Y K Cheng, instructed by DLA Piper Hong Kong, for the plaintiff Mr Jason Pow SC leading Mr Victor Dawes, instructed by Y T Chan & Co, for the 1st and 2nd defendants | ||||||||||||||||||||||||||||||
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