Read the full judgment text of CACV 178/1998 on BabelCite. This Court of Appeal judgment was delivered on 2 December 1998 before Liu, J.A., Leong J.A. and Yeung, J..
Defamation – libel – identification of person defamed – whether subjective intention of maker of statement admissible to identify the person defamed – whether unnamed plaintiff was referred to in televised broadcast – meaning of words complained of – natural and ordinary meaning – 'sting' – defence of fair comment under s.27 of the Defamation Ordinance – whether single incident sufficient factual substratum for comment alleging recurring conduct – broadcast on Asia Television Home Channel of programme 'Media Watch' (傳媒春秋) on 11 March 1995 – First Statement about solicitors' letters flying everywhere among the media and a trend of treading on each other – Second Statement about plaintiffs wanting to intimidate others into silence whenever mentioned incidentally – 1st plaintiff publisher of Eastern Express newspaper – 2nd plaintiff parent company with publishing subsidiaries including Oriental Daily News – claim by plaintiffs that both were referred to in the two Statements – trial judge finding that only the 2nd plaintiff was referred to and that the First Statement was not defamatory – Court of Appeal holding that the subjective intention of the maker of a defamatory statement is inadmissible for identifying the person defamed, and the proper test is objective, namely whether reasonable people acquainted with the plaintiff would understand the words to refer to him (Knupffer v London Express Newspaper; Hough v London Newspapers) – Hayward v Thompson and Gatley on Libel and Slander read in proper context, relating to statutory offer of amends defence – on the objective test, the 1st plaintiff was also identified because Eastern Express was mentioned six times in the programme and the Oriental Group was portrayed as the protagonist in multiple lawsuits – First Statement not defamatory as merely describing combative behaviour in a fiercely competitive business – Second Statement held defamatory; the last 14 characters conveyed the sting that plaintiffs wanted to intimidate others into silence – appellate court not interfering with trial judge's reading of defamatory meaning (Slim v Daily Telegraph) – fair comment defence under s.27 Defamation Ordinance failed because the Hong Kong Economic Times report relied on was not an incidental reference to the plaintiffs and was an isolated incident insufficient to support the factual premise of 'every time' or 'whenever' – appeal allowed in part with damages of HK$80,000 to each plaintiff and half costs to plaintiffs on appeal and below – liberty to apply on quantum – Court of Appeal's order subject to subsequent further appeal to Court of Final Appeal in FACV 5/1999, where the defendants' appeal was allowed with costs.
Legal issues: Whether the 1st plaintiff was identified as the person defamed in the two Statements · Whether the First Statement was defamatory · Whether the Second Statement was defamatory and whether the judge's reading of the 'sting' was correct · Whether fair comment under s.27 Defamation Ordinance was available for the 'sting' in the Second Statement
Outcome: Appeal allowed in part. The 1st plaintiff succeeds on the issue of identification; the 2nd plaintiff succeeds on the Second Statement. The judge's order is set aside to the extent of the determinations made in this judgment.