Easy Finder Ltd v. Oriental Daily Publisher Ltd and Another

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 187
(Civil)

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Coram: Hon Nazareth, V.-P., Liu and Leong, JJ.A.

Date of Hearing: 20 January 1998

Date of handing down Judgment: 17 February 1998

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J U D G M E N T

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Nazareth, V.-P.:

Introduction

1. The plaintiff is the proprietor and publisher of a weekly magazine called "Easy Finder". The 1st defendant is the proprietor and publisher of the Oriental Daily News, a daily newspaper. The 2nd defendant was the chief editor of the newspaper. The plaintiff commenced action against the defendants on 7 February 1996 for damages in libel arising out of an article published in the defendants' newspaper. The matter came before Barnett J in July 1997. On 1 August 1997 Barnett J gave judgment for the plaintiff for damages to be assessed. The defendants now appeal against that judgment.

2. The facts can conveniently be taken from the following two parts of the judgment of Barnett J.

"The Plaintiff's article

On 4th January 1996, the Plaintiff published an article under the headline 'A New Aphrodisiac in 96. A fair lady loses her control in 5 minutes'. This article was somewhat lengthy covering 3 pages together with illustrations. In summary, it concerned an apparently new drug being distributed by one 'Bobby'. This drug was much in demand because, by mixing it in a drink where it was difficult to notice, it 'changes a fair lady into an over-sexed [one]'. The article continued 'apart from criminals, it is said that it is extremely welcomed by a group of white-collar workers who have non-appealing appearance. Ladies, please beware, it is because you will any time become the next target of this new drug'.

The Plaintiff's article went on to give details of the activities of 'Ah Lung' who, in order to overcome his lack of appeal to the opposite sex, had spiked the drinks of two waitresses with two or three of the new pills. One of the waitresses subsequently took the sexual initiative; the other simply became passive. Ah Lung 'raped' both. The first did not remember what happened; the second 'did not know why she had made love'.

The article then gave further details of 'Bobby's' activities. Apparently the new drug had wider appeal than existing aphrodisiacs because apart from criminals, it attracted 'Gentlemanlike-scum white-collar workers'. According to Bobby, this group included 'those working in the banking and financial sectors and also insurance agents. The attraction of the drug lay in its strong effect and the fact that it was unknown to the police. During the recent Christmas and New Year it had had to be rationed.

The article warned:-

'it seems that ladies apart from taking thorough care to avoid falling into the trap, it is also hoped that the police can put more efforts to avoid innocent young girls from becoming the 'big meal' of the group of 'animals under the cover of hat and clothes'.

The caption to one of the photographs illustrating the article said in part:-

'the users usually grind it into powder beforehand and secretly mix it into drinks such as beer. The purpose is to rape young girls while they are under the influence of drugs.'

The article further warned that it is a criminal offence carrying a penalty of 14 years' imprisonment to administer a drug in order to stupefy a female to enable an unlawful sexual act to be performed, even if the act is not carried out. It then gave details of an experiment the reporter had carried out on a willing lady. Five minutes after taking the drug the lady had some sexual impulse and acted out of character.

The reporter had made enquires of a doctor and learned that taking aphrodisiac drugs could cause addiction and might destroy the sexual function. So that ladies might 'avoid falling into the trap' the article gave some indication of what they might look for in the appearance and taste of drinks to which the drug had been added. The article suggested choosing canned drinks provided that they were seen when being opened, and warned that a lady should leave if she was in any doubt.

The Defendants' article

At the time when the Plaintiff's article was published, two MPs Sir Keith Speed and Mr. Terry Dicks were on a visit to Hong Kong. Because of Mr. Dicks' previous connection with the Oriental Press Group, the holding company of the 1st Defendant, he and Sir Keith met and had a discussion with Mr. Ma. Ching Kwan, a director of the Group. Mr. Ma contrasted the tough line taken by the Television and Entertainment Licensing Authority against one of his newspapers, the late Eastern Express, for publishing a photograph of a boy severely disfigured by burns in order to raise money for charity; and the lack of action in respect of articles like the Plaintiff's article or an article which appeared in another newspaper, the Apple Daily, about vice-establishments in Mongkok and the charges made by prostitutes in the form of an advertisement. The two MPs agreed to give an interview to the Oriental Daily News and Eastern Express.

The interview was on 4th January. The MPs expressed their views on a variety of topics including the Plaintiff's article and the article in Apple Daily. Next day, 5th January, the following article appeared in the Oriental Daily News

'British Members of Parliament angrily blast "Apple" for Preaching Obscenity and Demand the Tribunal to Explain and Stop the Evil Trend

[News of This Newspaper] Two Members of British Parliament felt anxious and angry towards the stepping-out of-line articles of two local publications which had been published for a long period of time in the past. They will send a letter to the Obscene Articles Tribunal of the Television and Entertainment Authority today demanding it to express concern to and to explain how to follow up this evil trend.

In an interview with our newspaper yesterday, Members of Parliament Sir Keith Speed and Mr. Terry Dicks, who are currently visiting Hong Kong, criticised that there was a column in the subordinate section of Apple Daily everyday introducing the situation of vice establishments in Mongkok vividly, with the price even listed and somewhat like the style of half-advertisement. This has embarrassed the readers in general. (1) Both of them also pointed to an article recently published in Easy Finder which introduced how to use LSD to play tricks with drinks, in order to cause young girls to lose their virginity and become prostitutes, and to control them for the purposes of prostitution. (2) These contents made the normal readers feel angry. (3) They considered that this method of publication was too detailed and could be suspected of teaching people how to commit crimes, and could well amount to criminal conduct.

As said by Mr. Terry Dicks and Sir Keith Speed, if the Tribunal could be reasonably fair, the stepping-out-of-line contents of these two publications should be subject to disciplinary measures. In their letter of complaint, they will enquire why the Television and Entertainment Authority has not taken action after a long delay. They will also demand the Television and Entertainment Authority to give them a reply, otherwise they will make an enquiry at the British Parliament when opportunity arises.

These two MPs felt puzzled over the incident that 3 articles published by the Eastern Express last year had initially been classified as obscene, the verdicts of which were only overruled upon appeal and the classification of which were subsequently changed to "not obscene, not indecent". Particularly, the classification as obscene article by the Obscene Articles Tribunal of one of the photographs showing a boy whose face were burnt and was in a pitiable condition, which would have the effect of arousing those kind-hearted persons to make donations, would enrage the people. They pointed out, to rule that the photograph of the poor boy was more obscene and indecent than "stupefying of young girls" and "XX guide" was really ridiculous.' "

The plaintiff's case

3. The plaintiff's claim related to the foregoing passage underlined by Barnett J, and consisting of the three sentences which he numbered (1), (2) and (3), to facilitate their individual consideration.

4. By para. 6 of its statement of claim the plaintiff averred that:

"6. In their ordinary and natural meanings the words meant and were understood to mean:

(1) that the Plaintiff taught people how to administer drugs to drinks to be taken by young girls in order to stupefy them and enable men to have sexual intercourse with them, then turn them into prostitutes and control them for the purposes of prostitution;

(2) that the Plaintiff had published an article which caused the normal readers to feel angry;

(3) that the Plaintiff taught people how to commit crimes;

(4) that the Plaintiff was guilty or could well be guilty of criminal conduct."

5. It will be seen that although the meaning the plaintiff relied upon in its statement of claim was that the plaintiff "taught" people how to administer drugs, the defendants' article published in Chinese, in the agreed English version uses "introduced" and not "taught". This came about because the defendants disputed the word "taught" as an accurate translation and the parties agreed to "introduced" instead.

The judgment

6. In reaching his judgment in favour of the plaintiff, Barnett J noted that it was not in dispute that sentence (1) is a statement of fact. Mr Tang's submission was that "introduced" means "taught", and thus that the plaintiff was accused of deliberately explaining how the aphrodisiac could be used with the intention that young girls should become and could be controlled as prostitutes.

7. It was thus for Mr Tang to establish this defamatory meaning. Counsel for the defendants below submitted that the statements of fact in sentence (1) correctly summarised the thrust of the plaintiff's article; and that "introduced" was a neutral term of which the apposite meaning was "to bring a person into the knowledge of something".

8. The judge rejected the meaning of "introduced" as "taught"; rather, he was persuaded, the ordinary man would have believed he was being informed.

9. However, he observed that the plaintiff's article contained no reference to "prostitutes" nor "to control them for the purposes of prostitution". He noted the defendants' submission that these elements could be inferred from the article, particularly the mention of "young pimps and criminals" and of girls becoming "big meal". The judge firmly rejected that submission, condemning it as a complete travesty of the article, a most unappealing article though it was. "The whole thrust of the plaintiff's article", he said, "is not that the pimps and criminals were moving or indeed being encouraged to move in, but to warn ladies that more respectable men were beginning to use the drug simply to ensure that they would have sexual intercourse but without any sinister motive". He concluded "I find therefore that, however 'introduced' is construed, the substance of sentence (1), is simply not true. It is defamatory".

10. The judge then turned to sentence (2), which the defendants argued was a statement of fact, but the plaintiff submitted that it was a statement of opinion expressed by the two Members of Parliament. He concluded on balance, but only just, that it was a statement of opinion or comment. He then observed that "It is one thing to comment that the information imparted to readers has angered or upset them; it is quite another to comment that the manner or motive of the publisher of that information has angered readers. The latter is plainly defamatory".

11. The judge did not doubt that the opinion was honestly held, but he noted that, as Lord Denning said in London Artists Ltd. v. Littler [1969]2 QB 375; 391:

"In order to be fair, the commentator must get his basic facts right ... those which go to the pith and substance of the matter ... The commentator need not set out ... all the basic facts ... but he must get them right and be ready to prove them to be true".

The judge concluded "As I have already found, the Defendants distorted the Plaintiff's article. The plea of fair comment must therefore fail".

12. As to sentence (3), the judge found this also to be comment. In view of what he had said in relation to sentence (2), he held that the plea of fair comment must also fail.

The appeal

13. Before us, Mr Ronny Wong SC, who with Mr John Lam, appeared for the defendants in this Court but not below, took as his main point the contention that the plaintiff failed to prove the defamatory meaning it alleged and relied upon.

14. I pause here to mention that no point has been taken as to the defamatory nature of the meaning alleged, and that this appears to have been accepted by the parties and the judge.

15. It is common ground that the passage complained of is to be taken as a whole, but that it is convenient to address the sentences individually, as the judge and apparently counsel did.

Sentence (1)

16. Mr Wong's opening shot was that the sting of the alleged meaning was that the plaintiff had taught persons how to use aphrodisiacs to rape young girls. With "introduced" established as the operative word in the plaintiff's article (as opposed to "taught"), the alleged meaning has lost its sting for an allegation of the mere communication of information about a new aphrodisiac and its use or misuse, could hardly be defamatory.

17. To meet this, Mr Tang relied upon Slim v. Daily Telegraph Ltd. [1968]2 QB 157, 175 where Diplock LJ (as he then was), with reference to cases in which the plaintiffs have chosen to set out in their statements of claim the defamatory meaning alleged, said this:

"Where this manner of pleading is adopted, the defamatory meaning so averred is treated at the trial as the most injurious meaning which the words are capable of bearing, and the plaintiff is, in effect, estopped from contending that the words do bear a more injurious meaning and claiming damages on that basis. But the averment does not of itself prevent the plaintiff from contending at the trial that even if the words do not bear the defamatory meaning alleged in the statement of claim to be the natural and ordinary meaning of the words, they nevertheless bear some other meaning less injurious to the plaintiff's reputation but still defamatory of him, nor does it relieve the adjudicator of the duty of determining what is the right natural and ordinary meaning of the words, though nice questions may arise as to whether one meaning is more or less injurious than another."

I accept as only right and adopt in that regard the view of the editors of the 9th edition of Gatley on Libel and Slander at p. 858 that "the lesser meaning must be in the same class or range as the meaning pleaded, and not some wholly different meaning". Plainly it could not be right if the lesser meaning established was of a wholly different class from what was alleged.

18. Returning in that light to Mr Tang's argument, he submits that "taught" embraces not only the general concept of instruction but also those of encouragement or recommendation. Since the dictionary meaning of "teach" includes "to instruct", and to encourage and instruct seems to me to be lesser meanings of the same concept, I would accept that submission and the argument. Upon that basis, the question that has to be asked is this: Is the natural meaning of the words in sentence (1) that which was averred in paragraph 6(1) of the statement of claim here? If not, what less injurious defamatory meaning do they bear? The answer to the first limb must be in the negative. The judge himself said he was "not persuaded that the ordinary man would have considered that the Plaintiff was teaching him in the formal sense", rather he was "persuaded that the ordinary man would have believed he was being informed" (see Slim v. Daily Telegraph at p. 176A-D).

19. The answer to the second limb is not quite so clear; the judge himself did not approach the matter in that way. He focused upon the plaintiff's counsel's submission that it is a fair inference that the plaintiff's article was directed towards prostitution. This he rejected in the forceful terms that I have already set out, pointing to the whole thrust of the article having been to warn ladies that even respectable men were beginning to use the drug simply to ensure they would have sexual intercourse, but without any more sinister motive. He concluded immediately thereafter in the words already mentioned which I repeat:

"I find therefore that, however 'introduced' is construed, the substance of sentence (1) is simply not true. It is defamatory."

20. As indicated, that conclusion does not directly go to the second limb of the question mentioned. In the way Mr Tang relies upon the dictum of Diplock LJ in Slim v. Daily Telegraph Ltd, the plaintiff would have to establish that sentence (1) would be understood by the ordinary man to mean two things, i.e. not merely made known to people how, but also encouraged them, to administer drugs to young girls to stupefy them, have sexual intercourse, turn them into prostitutes and control them for prostitution. It is unfortunate in that regard that the focus below seems to have been on the thrust of the article (whether directed towards prostitution i.e. encouraging pimps and criminals to move in, as opposed to warning young ladies more respectable men were beginning to use the drug to procure sexual intercourse). However that may be, the judge did not make an express finding that the article encouraged anything of either sort. Mr Tang says it is implicit in the judgment that the judge must have so found. Having carefully studied the passages that are said to contain that implication and gone through the entire judgment, I am unable to agree. It is not as if such implication was identified below as a crucial or even a material issue, or even that it attracted any submissions of note.

21. In the result it seems to me that Mr Wong's submission that the meaning relied upon in the plaintiff's pleading has simply not been established in the judge's findings (understandably since he does not seem to have been asked to do so) and that neither can it be made out upon the evidence is right. Moreover, it has to be borne in mind that such meaning has to be established in terms of what the ordinary layman to whom the article was published would have understood (see e.g. Lewis v. Daily Telegraphs Ltd. [1964] AC 234; 258, 277). The judgment therefore cannot be sustained in relation to sentence (1) of the passage relied upon by the plaintiff.

22. It appears also, that "taught" could be excluded from the meaning of sentence (1) alleged by the plaintiff upon the plain meaning of the Chinese characters in which the defendants' article was published. However, that was not a point taken or pursued below. Moreover, it would cut across the agreed English version upon which both parties and the court proceeded below. Mr Wong very properly, in my view, did not raise or rely upon it before us. Nor did Mr Tang agree to the defendants doing so. In these particular circumstances, it does not seen to me to be open to this Court to rely upon it.

23. Nevertheless, given the conclusion I have reached, I do not find it necessary to proceed to Mr Wong's elaborate secondary submission of justification made as a back-stop to his primary submission.

Sentences (2) and (3)

24. Turning then to sentences (2) and (3), it would be remarkable indeed if these could salvage the plaintiff's claim upon its failure in relation to sentence (1), given the way in which Mr Tang relied upon them. He submitted that the passage had to be read as a whole and that sentences (2) and (3) strengthened the plaintiff's contentions founded upon sentence (1) upon which the plaintiff primarily relied.

25. However that may be, the plaintiff's points can be dealt with quite shortly. Notwithstanding Mr Tang's submissions to the contrary, the judge held that both sentences were comment and not statements of fact, although with reference to sentence (2) "only just". I have to say that on their face they could easily have been regarded as statements of fact. But that is little to the point, for whether comment or fact, it does not seem to me that they could sustain the judge's conclusion once sentence (1) has lost its sting which lay in the averment that the article meant that the plaintiff taught people how to use the drug for the reprehensible purpose in question. Without that, whether they be statements of fact or comment, that readers felt angry or that the explanation was too detailed and so forth, could not provide a sufficient foundation for the plaintiff's claim or the judge's conclusions, or for a finding of defamation. In the latter regard I do not think that the defendants would have been so relaxed about the defamatory nature of the meaning alleged by the plaintiff had it not included as a most important component the allegation that the plaintiff taught people the use of the new drug for the purposes mentioned.

26. For all those reasons, it seems to me that the defendants' appeal must succeed and I would allow it with an order that they should have their costs of the appeal.

Liu, J.A.:

27. I gratefully adopt the material facts set out in the judgment of the Vice-President.

28. On 4 January 1996, the plaintiff caused to be published an article about a new aphrodisiac for the 1996 market. The users were pimps and the underworld, and "apart from [them]", it was believed to be "extremely welcomed by a group of white-collar workers who [had] non-appealing appearance". It was popular and new, so new that the "sphere of criminals" had yet to ascribe a colloquial name to it. This type of aphrodisiac was available in the past but only enjoyed a limited consumer market of exclusively "young pimps and criminals". "The new drug not only [attracted] a group of criminals", but also the white-collar workers who would make a "big meal" of young ladies. Caution should be exercised and better police efforts should be made. The users, that is, users at large would offer a drink laced with the drug in order "to rape young girls while they [were] under the influence of the drugs".

29. We need hardly be reminded by Lord Devlin in Lewis v. Daily Telegraph Ltd. [1964] AC 234 at p.277 that "the layman's capacity for implication is much greater than the lawyer's ..... The layman reads in an implication much more freely.". In the same case at p.258, Lord Reid spoke of the ordinary reasonable man as one who "does not live in an ivory tower and is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and his experience of worldly affairs". At p.260, the Law lord continued: "What the ordinary man, not avid for scandal, would read into the words complained of must be a matter of impression." No ordinary reasonable local reader of the plaintiff's article could have failed to understand it as a report on the use of the new 1996 drug and those previously available by pimps and criminals to rape women and turn them into prostitutes. I would also take judicial notice of the all too commonly known fact in our community that the underworld and the pimps do make women and keep them as prostitutes by the use of drugs, including aphrodisiac for breaking down their resistance and shattering their self-respect. In that light, the plaintiff's article provided vivid and more than telling information on the use of the new 1996 drug. Victims would hardly be interested in most of the data provided. It also gave a warning to ladies.

30. The alleged libellous article of the defendants published on 5 January 1996 focused on the "evil trend" in the press reports of sensual incidents with wholly unnecessary sordid details. It concerned the general complaints from two members of the English Parliament, voicing their disapproval of the control and unfair treatment by the authorities in the public dissemination of these material. The defendants' article concluded by calling attention to the undesirable publication of "XX guide" for vice establishments in Mongkok and the use of the 1996 new drug for "stupefying young girls". The material part of the defendants' alleged libellous article under complaint comprises three sentences :

"(1) Both of [the members of Parliament] also pointed to an article recently published in an Easy Finder which introduced how to use LSD to play tricks with drinks, in order to cause young girls to loose their virginity and become prostitutes, and to control them for the purposes of prostitution. (2) These contents made the normal readers feel angry. (3) They considered that this method of publication was too detailed and could be suspected of teaching people how to commit crimes, and could well amount to criminal conduct."

31. The judge found the first sentence to be a statement of fact. That is not disputed. He concluded that the second and the third sentences were comments. He found on balance, "but only just", that sentence (2) was not a statement of fact. By a Respondent's Notice, it is sought to be contended in this appeal that sentences (2) and (3) also constitute statements of fact. The judge decided on the footing of an ordinary reasonable reader as a jury question that these are expressions of comment and not statements of fact. His determinations could not be interfered with unless they are plainly wrong. I am not persuaded by leading counsel for the respondent, Mr Tang, on his Respondent's Notice that the trial judge is wrong. I have read and re-read the alleged libellous article of the defendants and agree with the category designated by the judge, into which sentences (2) and (3) should fall.

32. The judge was of the view that an ordinary, reasonable reader would take the plaintiff's article as a press report whereby he was being fed information or "he was being informed". See p.14F of the judgment. The drift of the defendants' alleged libellous article is set by the two Chinese characters "介紹" used, meaning to familiarise the reader with the published information. These Chinese characters do not connote "teaching". Nothing was sought to be made of the meaning of these two characters before the judge. Instead the judge was invited to focus on the agreed literal translation "introduced" for these two characters "介紹" in the first sentence, but he did not find it necessary to determine its meaning. As to the first sentence, the judge concluded that the thrust of the plaintiff's article was to warn ladies of the dangers highlighted and not about the activities of pimps and criminals moving in on young women with the aid of the 1996 new drug as they had done with pre-1996 drugs and that therefore the first sentence of the defendants' article was a grossly inaccurate statement. In what would appear to be a quantum leap, the first sentence was thereupon pronounced to be defamatory. To begin with, if "introduced" had been accepted by the judge as meaning familiarising the reader with or keeping him informed of the published information (that was, in effect, the purpose which, the judge found, the plaintiff's article was calculated to serve), the first sentence could not have been libellous. That the plaintiff's article and the defendants' article dwelt upon wholly different aspects would not be determinative in this libel action. What was crucial is the truth or falsity of the statements contained in the defendants' article, which would, if false, have to be also disparaging to fix the defendants with liability. Mr Wong, leading counsel for the defendants, must be right in submitting that the question to be asked on the first sentence was not whether the defendants' article coincided with the whole thrust of the plaintiff's article but whether the first sentence was true or false, even if it was disparaging or was potentially libellous. For the reasons given in the above analysis and the matter I have taken judicial notice of, the first sentence is substantially accurate and hence not libellous.

33. Sentences (2) and (3) were found by the judge to be comments on "the manner or motive" of the plaintiff. I believe it is now accepted that comments of this nature, if made on an accurate statement of fact, were not defamatory. The judge's criticism was that since these comments on "manner or motive" were made on distorted facts in the first sentence, they could not be justified as fair comments. Obviously if the facts upon which these comments were purportedly made were non-existent but defamatory, the defence of fair comment must fail. The only distortion complained of in the defendants' alleged libellous article, regarding the plaintiff's manner or motive (or purpose) was that the plaintiff's article taught the reader to perpetrate illegal acts. Without making any determination on the purpose attributed by the defendants' article to the plaintiff's article, viz. allegedly teaching the reader to misconduct himself/herself, it would not be right for the judge to hark back to such a purpose, manner or motive in his later consideration of the plea of fair comments for sentences (2) and (3). The judge would have found the comments in sentences (2) and (3), if made on an accurate statement of fact, fair comments. I hope I have sufficiently demonstrated that the defendants' article did not distort the plaintiff's article in the first sentence. Therefore, the defendants' plea of fair comment should succeed.

34. Finally, I come to consider the plaintiff's argument that the first sentence read in the context of the entire article, particularly in conjunction with sentences (2) and (3) defamed the plaintiff, in that the article of the plaintiff was allegedly described in the defendants' article as encouraging the pimps and criminals to turn young women into prostitutes. Far be it from leading counsel to say that the word "introduced" is capable of meaning "encouraged", he merely seeks to rely on the broad message said to have been conveyed by the first sentence. This is how leading counsel for the plaintiff, Mr Tang puts it : "The [defendants'] article says that the plaintiff's article encouraged criminals etc. to turn girls into prostitutes. If so, it is also defamatory unless it is justified." This allegation of encouragement was not pleaded, but Mr Tang maintains that an argument was canvassed in this direction before the judge. Counsel relies on Slim v. Daily Telegraph, [1968] 1QB 157 for the proposition that "encouragement" or "encouraged" being a lesser evil in the same class or range of meaning as that of "teaching" or "taught", the plaintiff was at liberty to rely, as against the defendants, on such an alleged relatively less critical averment of encouragement or "encouraged" in their article. Leading counsel further maintains that in fact, the judge found a defamatory meaning of encouragement or "encouraged" in the first sentence.

35. It is inconceivable that the trial judge could have so made a finding on encouragement or "encouraged" when he had deliberately refrained from making a determination on the meaning of the word "introduced" which was specifically pleaded as meaning "taught". Hard as I try. I am unable to cull from the defendants' article or the first sentence any harsh observation made against the plaintiff's article regarding an encouragement of this nature. Further, this court is not told whether the word "introduced" other than the first sentence was argued on its own before the trial judge as being capable of meaning "encouraged" as an alternative to "taught". It is not seriously pressed upon us in this appeal that the word "introduced" is at all capable of meaning "encouraged".

36. Finally, it is only too true that whether the words complained of in the defendants' article, particularly in the first sentence were capable of constituting a libellous statement of fact was to be determined by considering the contents of the defendants' article alone, but not in conjunction with matters set out in the plaintiff's article unless those matters in the plaintiff's article were also identified or sufficiently identified. The court must be confined to the context of the publication in respect of which the action is brought. SeeTelnikoff v. Matusevitch, [1992] 2AC 343. But those responsible for the publication of the defendants' article could not have been so inexpertly naive as to comment on the plaintiff's article as if it encouraged or incited criminals and pimps to turn women into prostitutes by the use of drugs, when the plaintiff's article on which they commented explicitly reported that the pimps and criminals had already been so using the new 1996 aphrodisiac drug and its comparables in the past. Those responsible for the defendants' article must have read its full text and been well aware that these pimps and criminals would need no encouragement. In considering the question whether the words complained of in the defendants' article could be read as censuring the plaintiff's article on the basis that it was encouraging these unsavoury elements to use an aphrodisiac drug, one must not close his eyes to reality and ignore the reference to their activities in the plaintiff's article which could not have escaped the attention of those taking a decision to publish comments upon it. The author of the defendants' article and those responsible for its publication could not possibly have made or allowed to be made any comments on such an alleged encouragement, which would clearly be inapt and otiose by reference to the report in the plaintiff's article they must have read. It would be astonishing that the plaintiff's article could have been claimed in the defendants' article to encourage pimps and criminals so to abuse women.

37. In conclusion, the first sentence contains a substantially accurate statement of fact and the comments made in sentences (2) and (3) are fair comments on the facts stated in the defendants' article. For the basic errors set out in this judgment, the conclusions of the judge cannot be sustained. I would also allow the appeal, set aside the order of the judge and make an order nisi for costs against the plaintiff here and below.

Leong, J.A.:

38. I share the views expressed in the judgment of the Vice President and that of my Lord Liu, J.A., in particular his approach. For my part, I wish to add a few words on the text of the plaintiff's article. Reference is clearly made in the article to the practice of pimps and criminals using drugs on young girls. It is to turn them into prostitutes. Occurrences of this nature are all too prevalent and they are common knowledge of which judicial notice may be taken.

39. I, too, would allow the appeal and make the orders including order nisi for costs as proposed.

Nazareth, V.-P.:

40. The appeal is accordingly allowed and the orders below are set aside. There will be an order nisi that the defendants are to have their costs of the appeal and below, and also leave to amend their notice of motion already entered within fourteen days.

Representation:

Mr Ronny F.H. Wong SC and Mr Johnson Law (M/s Lovell White & Durrant) for the Appellants

Mr Robert Tang SC and Mr Anderson Chow (M/s Hau Lau Li & Yeung) for the Respondent