Wong Ming Chun t/a Tai Tak School v. Chen Hsun Yu and Others

CACV000019/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 19 OF 1968

(On Appeal from Original Jurisdiction Actions No.1343 to 1351 of 1967,
consolidated pursuant to an Order dated the 2nd January, 1968)

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Coram: Hogan C.J., Briggs J. and Pickering J.

Date of Judgment: 25 October 1968

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JUDGMENT

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Hogan C.J.: These are consolidated actions in which the plaintiff is suing for damages in respect of an article which, with minor variations, appeared in the nine defendant newspapers. The article reads as follows:-

2. The only variation of significance as between the individual newspapers was that two of them made no reference to the school being a leftist school.

3. The plaintiff's pleadings set out, in the Statement of Claim, a number of layman's or false innuendos, as they were described by Lord Devlin in the case of Lewis v. Daily Telegraph⁽¹⁾, and a legal innuendo in which the extrinsic facts relied upon to show that the article referred to the plaintiff was her position as sole proprietress of the school in question and her position as supervisor and manager.

4. It was admitted by the defendants in the course of the proceedings that no sharpened bars or inflammatory posters had been found at the scene and no one had been arrested or sent for interrogation. Nevertheless, the judge in the court below held that the offending article was not a libel of the plaintiff and dismissed her claim.

5. Counsel for the plaintiff argued that the judge, in reaching this conclusion, failed to take judicial notice of the disturbed conditions in Hong Kong last year, the causes of those disturbances and their effect on the mind of the general public. Counsel for the defendant, on the other hand, contended that the judge did take notice of certain features of the disturbances but that, in any event, he was not bound to do so and, indeed, could not properly do so because the plaintiff had failed to plead particulars of these disturbances in support of her legal innuendo.

6. The main weight of argument on the appeal has, however, been addressed to the plaintiff's contention that it was necessary for the judge to ask himself and answer separately four questions; two of them being questions of law and two of them questions of fact.

7. Relying very largely on the case of Knupffer v. London Express Newspaper, Ltd.⁽²⁾, counsel argued that the four questions should have been:

8. Counsel maintained that the judge never asked himself the first of these questions and, having failed to do so, misdirected himself in his attempt to answer the second where he advanced, according to counsel, reasons and a false analogy which on the facts of the case and on the law could not be sustained: thus leading to a serious miscarriage of justice.

9. Defendants' counsel maintained, on the other hand, that it would be quite sufficient in a case like this, where a judge is sitting without a jury, to deal with the questions compendiously and, if thought appropriate, to take first the factual point whether the article actually referred to the plaintiff and, if that was answered in the affirmative, then to turn to the question whether it was a libel of the plaintiff.

10. Plaintiff's counsel sought support for his argument in the speech of Lord Porter, with which Lord Atkin agreed, in Knupffer's case⁽²⁾ where there are passages suggesting that even a judge sitting alone should put to himself, as a prior question, the query whether there is any evidence upon which a conclusion that the publication referred to the plaintiff could be reached before proceeding to the factual question whether it actually did so refer.

11. Lord Porter said:

12. The distinction between the two questions is brought out in the speech of Viscount Simon L.C., who said:

13. The case before the House was a jury case and no other Law Lord expressed himself as broadly as Lord Porter. His observations on the procedure in a non-jury case are obiter. Taking the speeches as a whole I don't think they can properly be read to mean that in all cases, however tried, the four questions must be asked and answered.

14. Moreover, any such deduction would be in conflict with the view expressed by Diplock L.J., as he then was, in Slim v. Daily Telegraph Ltd.⁽³⁾ where he analysed very thoroughly the source and significance of these different questions. After dealing with the determination of the meaning to be ascribed to the words in question and the measure of control exercisable by a judge over a jury for the purpose of determining this issue, he said:

15. However, counsel for the plaintiff has, with some justification, argued that if a judge sitting alone does not put to himself the four specified questions, i.e. whether the article was capable of being defamatory, whether it was in fact defamatory, whether it was capable of referring to the plaintiff and whether in fact it referred to the plaintiff, there may be difficulty in ascertaining on precisely what grounds a claim has been dismissed.

16. Without necessarily subscribing to the view that it is essential for a judge sitting alone to ask himself and to answer each of the four questions and without wishing to preclude the possibility of a judge, in such circumstances, selecting and dealing with only one of these questions if he found it decisive, one can recognize a danger if a short cut is taken or an attempt made to deal with the matter compendiously that the reasons for the judge's decision may not emerge with the clarity that would follow from answering the four separate questions.

17. In the present case I have found some difficulty in determining whether the judge thought the publication was capable of being defamatory. In the most relevant part of his judgment he sets out the allegations which he finds clearly capable of having a libellous meaning in a form somewhat different from those appearing in the article, but I am left with the impression that he did not regard the difference as being material and that the intention was to convey the conclusion that the article was capable of being defamatory. Coming to the fourth question, whether it was defamatory of the plaintiff, the judge certainly found that it was no libel on the plaintiff but his language leaves it doubtful as to whether this conclusion was due to thinking that the article was incapable of referring to her or was not proved to have been published about her.

18. The importance of this distinction will emerge with greater clarity when I come to examine the facts which must be proved in an action of this kind, where the plaintiff relies on a legal innuendo; for the moment I would say merely I am not satisfied that failure to ask and answer separately each of the four specified questions is an error of law or procedure by a trial judge sitting alone but we are still left with uncertainty in the present case as to how the trial judge reached his final compendious conclusion and whether he was right. Did he reach that conclusion because he thought the plaintiff was not sufficiently clearly identified in the article or because he thought the article was not, in any event, defamatory of anybody with the possible exception of the two people wrongly alleged to have been arrested?

19. It was contended for the defendants that there was no evidence of the plaintiff being the proprietress of the school, as the business registration certificate in respect of it was taken out after the filing of the writ. It seems to me, however, the even though, as the judge found, she may not have had much knowledge of, or close contact with, day to day details, her evidence taken as a whole shows that she was, in the ordinary sense of the term, the proprietress of the school. It is not a term of art and her uncontradicted statements that her father used to run the school and supported it financially, that she took over after his death in 1964, that she owns the building in which it operates, that she is the registered manager and supervisor, that she takes the fees and stands the losses - it being alleged that the school does run at a loss - and is known by those concerned with the school as the headmistress of it, seem to me, when taken together, sufficient to establish she was the proprietress of the school in the sense in which that term was used in her pleadings. I think she also showed that she played a prominent and important part in the school or, at least, would be regarded by members of the public as so doing.

20. As for the contents of the article itself, the judgment, in the court below, gives much weight to the argument that merely to be associated with the "left" or with communism did not necessarily mean that one supported or encouraged the disturbances which were then troubling the Colony; as not all such individuals or organizations participated in or encouraged these disturbances. Without questioning this argument, it seems to me that to allege a school had been raided by the police would inevitably tend to raise questions in the minds of people who knew those responsible for running the school as to whether this responsibility was being duly and properly discharged. To go further and allege, falsely as it appears in the present case, that sharpened bars etc. had been found on the school premises and two people had been sent for interrogation, must enhance that anxiety and tend to lower in the minds of right-thinking people their estimation of those responsible for running the school. Consequently and, subject to what I am going to say in a moment about publication, I would have been disposed to think that this article was defamatory of those responsible for running the school and that the plaintiff might have had a good cause of action if she had properly pleaded and proved a legal innuendo that someone who saw and read the article knew her as the proprietress etc. of the school.

21. The necessity of proving a legal innuendo of this kind does not, perhaps, emerge with the greatest clarity from the English decisions but the point has been dealt with succinctly and clearly in certain Australian cases.

22. In Consolidated Trust Co., Ltd. v. Browne⁽⁴⁾ the matter complained of was a cyclostyled document purporting to be "For the confidential information of subscribers", containing a number of paragraphs dealing with unconnected topics, the first of which stated that the new owners of certain property had produced a set of rules with which tenants were required to comply. It denounced the rules as offensive and the owners for having produced them. The plaintiffs contended that although they were not named in the document, they were the owners in question and had been defamed.

23. On an application by counsel for the defendant for a non-suit in each case, the trial judge ruled as follows -

24. The plaintiff appealed to the Full Court and Jordan C.J. after stating the facts said:-

25. Jordan C.J. then turned to deal with an English decision where Goddard L.J., as he then was, said something which might appear to conflict with this approach. It was Hough v. London Express Newspaper, Ltd.⁽⁵⁾, where the matter complained of was not ex facie defamatory of the plaintiff. Slesser L.J., with whom Clauson L.J. agreed, said:-

Goddard L.J. said:-

Jordan C.J. went on to say that these observations by Goddard L.J. were:

26. Jordan C.J. then referred to the observation of Russell L.J. in Cassidy v. Daily Mirror Newspapers, Ltd.⁽⁶⁾ that

27. Clearly Jordan C.J. thought that this passage implied that there must be publication to someone with knowledge of the special facts and if this is a necessary ingredient it would seem that the burden of proving it must fall on the plaintiff.

28. After examining some other authorities Jordan C.J. continued:-

29. The other members of the Full Court agreed with this view of the law.

30. There are, however, certain passages in the judgment of Davidson J. that are of interest:-

31. I would be disposed to agree with the Australian judges in that case when they took the view that the observations of Goddard L.J. in Hough's case⁽⁵⁾ did nothing to diminish the necessity of proving that someone who saw the publication had the special knowledge which would enable him to link it with the plaintiff but merely indicated that it was not necessary to prove, in addition, that a person with such knowledge actually understood the article in a defamatory sense, and that such evidence might not even be admissible.

32. The point again came for decision before the Full Court in New South Wales in the case of Cross v. Denley⁽¹⁰⁾.

33. A printer carrying on business in a suburb of Sydney printed some pamphlets on which, being loath to enter his registered imprint, he put instead the imprint "Express Printery, Lidcombe". The pamphlets were scattered in a picture theatre. On the following day a daily newspaper published a news item describing the incident together with some extracts from the pamphlet and ended with the words "The pamphlets .... bore the imprint of Express Print, Auburn. ". The plaintiff, who carried on the business of the "X-press Printery" in Auburn, sued for damages and recovered a verdict, as it had been shown that some of his customers who read the newspaper item and knew of his business at Auburn formed unfavourable conclusions about him as a result. Some doubt arose in the Full Court as to whether the action in the lower court had been based upon the publication of the pamphlets to the audience at the picture theatre, the later publication in the newspaper being relied upon only as part of the damages flowing from the publication at the theatre, or on the later publication in the newspaper and further enquiry showed that it was the publication at the theatre which was the subject of the action. In the course of his judgment, with which the other members of the Court agreed, Owen J. said :-

34. When Jordan C.J. in the earlier case referred to English authorities on privilege as supporting his construction he presumably had in mind Sadgrove v. Hole⁽¹¹⁾ where a postcard had been sent to a person in respect of whom privilege could properly be claimed. It was contended for the plaintiff that others could see the contents of the postcard which did not, however, name the plaintiff. The plaintiff failed because he failed to prove that anyone with knowledge which would connect the plaintiff with the contents, other than the addressee, who fell within the privilege, had read the postcard: consequently he had not satisfied the onus of proving publication of libellous matter concerning himself. This case was relied on by Slesser L.J. in Bruce v. Odhams Press, Ltd.⁽¹²⁾ as authority for the following passage:

35. A similar view seems to have been expressed by Ormerod, J. in Jozwiak v. Sadek⁽¹³⁾ when he said, referring to Hough v. London Express Newspaper, Ltd.⁽⁵⁾:-

36. The editor of Gatley on Libel and Slander⁽¹⁴⁾, relying mainly on English cases though he does mention Cross v. Denley,⁽¹⁰⁾ has summed up the authorities in somewhat similar fashion with the following words :-

37. Counsel for the plaintiff sought to meet the difficulties arising for him from these cases by arguing that, whilst there might well be a necessity to produce evidence of knowledge in a reader when dealing with mimeographed sheets or some limited publication of that kind, the matter was one of degree and where the offending article appeared in a printed public newspaper then no such evidence should be required.

38. No doubt, in doing so, he had in mind the statement of Davidson J. that with a publication in a public newspaper identifying some prominent person it might be assumed a substantial number of people would read and understand the matter complained of and to whom it referred and that, perhaps, no further evidence "might be necessary". That argument, for what it is worth, could not, I think, be valid in the present circumstances because the plaintiff could not be said to enjoy the degree of prominence contemplated by Davidson J.. If the matter is one of degree, this case falls, I think, on the side where evidence is necessary.

39. During the course of the argument, attention was also directed to Section 19(2) of the Defamation Ordinance, Cap.21, and the necessity, even when an action is consolidated, of taking a separate verdict for and against each defendant in the same way as if the actions had been tried separately. As the judgment had gone against the plaintiff in the court of trial, the point was not material there but counsel for the plaintiff suggested that it was also not material on this appeal. The main weight of his argument in this behalf was based on the case of Hopley v. Williams⁽¹⁵⁾, but that case cannot, I think, advance his argument because, in it, publication appears to have been admitted and the only issue before the court was the amount of the damages, which the defendants therein suggested should be contemptuous, but which could properly be found as one sum and subsequently apportioned.

40. In the present case, the fact that the statements of claim were originally drafted so as to name the school as the plaintiff, an error which was subsequently met by an amendment the consequential details of which do not appear to have been fully worked out in the body of the pleadings, has left them in a somewhat hazy and unsatisfactory state. Nevertheless, the defence specifically denied that the article had been published of the plaintiff. Consequently she faced an onus of proving such publication in respect of each defendant and, on the strength of the authorities already mentioned, I think that included the onus of proving that the article in the defendants paper had been published to at least one reader who knew the circumstances of the plaintiff's relationship with the school. As this aspect was apparently overlooked by counsel on either side it seems not unnaturally to have been hardly touched upon in the evidence. The only passages which, to my mind, could lend any support to an argument that, at least in respect of one newspaper, the onus had been discharged, occurred when the plaintiff, in the course of her examination-in-chief, gave the following answers:

41. Quite apart from any objection to the admission of hearsay evidence this testimony would appear too tenuous to satisfy the requirement of proving that one individual with knowledge of the particular circumstances read the publication.

42. But what is the effect of the failure to raise this point in the court below? It emerged only when the argument before us had run some distance and no cross-appeal or notice under O.59 r.6(2) has been served by the defendants. On this respect we have been referred by counsel on either side to the leading cases of The Tasmania⁽¹⁶⁾ and Banbury v. the Bank of Montreal⁽¹⁷⁾.

43. These cases deal with failures by an appellant, not a respondent, but the principles enunciated in them are, of course, likely to have a bearing on the proper approach to similar conduct by a respondent. Lord Herschell's proposition in The Tasmania⁽¹⁶⁾ is frequently quoted and indeed appears in the notes of the Annual Practice to O.59 r.10(1) under the heading: "Allowing a case to be made that was not raised in the court below."

44. He said:

45. In an earlier case Ex parte Firth In re Cowburn⁽¹⁸⁾ Jessel, M.R. said:

46. Counsel for the defendants, on the other hand relied on the Banbury⁽¹⁷⁾ case where there was a sharp division in the House of Lords. The majority held that, as the headnote puts it:

47. The plaintiff had been successful in the court of trial. The defendants applied for judgment or a new trial on various grounds including two allegations, not previously made, that there was no evidence on certain points essential for the plaintiff's success. The Court of Appeal upheld these contentions and the plaintiff appealed to the House of Lords. Lord Atkinson, who made the leading speech for the majority, having reviewed a number of cases, said:

48. Lord Atkinson then went on to quote the passage from Lord Herschell's judgment already mentioned and said:

49. More frequently quoted perhaps is a passage from Lord Parker's speech which runs as follows:

The passages in these speeches referring to the possibility of producing further evidence at another trial call for further attention. They must, I think, refer to instances where a new trial would have been available for other reasons and should not be read as implying that if, at the conclusion of a party's evidence, it is insufficient to establish his case he should be given an opportunity, merely on that account, of doing so at another trial.

50. Bearing in mind that the judgments from which I have quoted deal with the position of an appellant it is necessary to consider whether the principles emerging from them are equally applicable to a respondent. Until recently, a respondent who was not seeking to vary an order made in the court below and consequently not affected by the need to file a cross-appeal was not restricted by rules of court from supporting the judgment of the lower court on grounds not relied upon by the trial court but now, under O.59 r.6(2), recently introduced in Hong Kong as in England, the respondent seeking to rely on such new ground is required to give notice to the other side. In the absence of such notice O.59 r.6(3) gives to the court a discretion as to whether the respondent should be allowed to rely on the new argument.

51. Counsel for the defendants has argued that no such notice was necessary in the case before us, but counsel also requested that, if the court took the contrary view, then leave to rely should be given. I am satisfied that notice should have been given and that if reliance is to be placed on this ground leave is necessary. It does not seem to me inconsistent with the principles emerging from the cases already quoted to grant leave in the present case. The course of proceeding in the court of trial would not have been different if, at the conclusion of the evidence, counsel had raised this point. He had, by his pleading, put on the plaintiff the onus of proof that there was a publication about the plaintiff. The plaintiff's legal advisers knew that they had to meet that onus. No occasion to argue that they had failed to meet it arose until they had called their evidence and closed that part of their case. If raised at that time, which would have been the appropriate time to raise it, the issues before the court and the evidence on which they fell to be decided would not have differed from those now before us. Consequently I think the defendants should be allowed to raise the point but on terms to which I will refer later.

52. During the course of the hearing before us, in anticipation of leave being granted or found unnecessary, every opportunity was given to counsel for the plaintiff to meet this particular point and, in the course of doing so, he argued that because the judge had misdirected himself in holding, for reasons which do not emerge with any clarity from the judgment, that the article was not defamatory to the plaintiff, the proper order to make would be to direct a new trial at which this new point about the absence of evidence of publication and other matters could be fully explored and examined.

53. If one looks at this matter in the manner most favourable to the plaintiff and construes the judgment in the court below as indicating that the judge misdirected himself on the law by holding that the article was incapable of being understood to be defamatory of the plaintiff, it would still be necessary for the plaintiff to show that in such circumstances a new trial should be ordered because some substantial wrong or miscarriage of justice has been thereby occasioned (O.59 r.11(2)).

54. No such wrong or miscarriage could have occurred if the evidence produced by the plaintiff was not sufficient to establish the case even with a proper direction. Without proof of publication the evidence would have been insufficient and, as already indicated, the proof of publication was insufficient.

55. The argument that, by means of a new trial, the plaintiff should be given an opportunity of filling the gap left in her evidence would appear to be clearly precluded by the principle recognized in a well-known passage from the speech of Lord Chelmsford in Shedden v. Patrick and the Attorney General⁽²³⁾ which is quoted in Letchumanan Chettiar v. Sadayappa Chettiar⁽²⁴⁾ :

56. The Chettiar case⁽²⁴⁾, where this principle was applied, might well be thought to have presented features more strongly favouring the appellant than the present case because the trial judge in that case had wrongly ruled that the onus of proof on the vital issue rested on the respondent, and it was contended that this ruling played a major part in inducing the appellant not to call the relevant evidence.

57. Sub-rules (2) and (3) of rule 6 of O.59 are relatively new both in England and Hong Kong and there has as yet been little time for the emergence of judicial authorities indicating how they should be applied. In this case I would, as already indicated, adopt a lenient approach in permitting the defendants to benefit from sub-rule (3) but defendants should not be allowed to increase the costs payable by the other side through failure to comply with sub-rule (2). At the conclusion of the case in the lower court the plaintiff was not entitled to succeed because she had failed to prove an essential ingredient in her case. It looks as if it may have been an ingredient which, if she and her legal advisers had appreciated the necessity, could have been proved in respect of at least some of the defendants. Had the matter been raised in the court below, that might well have been the end of the case and we might have heard nothing of this appeal. The failure of the defendants to raise it then has led to a lengthier hearing of this appeal during which other arguments have been advanced to us in support of the judgment in the court below, which I would not be prepared to accept because I think the article was defamatory of those responsible for the school and the plaintiff was in this category but failed because she did not prove publication to anyone who knew of her position in the school. Had the plaintiff, when first made aware of this particular point, accepted it as valid and not sought to contest the matter I think it might well have been appropriate to have imposed on the defendants the condition that reliance could only be placed on the point if the defendants were prepared to meet all the costs of the appeal. But, in the circumstances, I think the fair order to make would be that the order in the court below will stand but that, as a condition of allowing the defendants to rely on the only contention which in my opinion could support the lower court's decision, the defendants will pay one half of the plaintiff's costs in the Court of Appeal. Such costs will not include the unnecessary folios in the lengthy appeal record, such as the repetition of the headings, which should have been excluded.

Briggs J.: I concur.

Pickering J.: I also concur.

Representation:

Cheung Q.C. and B.Liu (W.I. Cheung and Co.) for Plaintiff.

Zimmern (Deacons) for Defendants.

(1) (1963) 2 All E.R. 151.

(2) (1944) 1 All E.R. 495.

(3) (1968) 2 W.L.R. 599.

(4) (1949) 49 State Reports (N.S.W.) 86.

(5) (1940) 2 K.B. 507.

(6) (1929) 2 K.B. 331 at 353.

(7) (1909) 2 K.B. 444 at 454, 477.

(8) (1935) 35 S.R. 526 at 537-9: Austn Digest (1934-1939) 732.

(9) (1860) 8 C.B. (N.S.) 597 at 600

(10) (1952) 52 State Reports (N.S.W.) 112.

(11) (1901) 2 K.B. 1

(12) (1936) 1 K.B. 697 at 708

(13) (1954) 1 W.L.R. 275 at 277

(14) 6th Edition p.64

(15) 6 T.L.R. 3.

(16) 15 A.C. 223 at 225

(17) (1918) A.C. 625

(18) 19 Ch. D. 419 at 429.

(17) (1918) A.C. 626 at 678.

(19) (1876) 1 A.C. 554, 559

(20) (1892) A.C. 473

(21) (1906) A.C. 51

(22) 17 Q.B.D. 603.

(23) (1869) L.R. 1 Sc. & Div. 470

(24) (1953) 1 W.L.R. 269 at 274