OREINTAL PRESS GROUP LTD v. HONG KONG DAILY NEWS LTD AND ANOTHER

bjbj HCA002852/1996 1996, No. A2852 IN THE HIGH COURT OF HONG KONG COURT OF FIRST INSTANCE ----------------- BETWEEN OREINTAL PRESS GROUP LIMITED Plaintiff HONG KONG DAILY NEWS LIMITED 1st Defendant FUNG KAM PEI 2nd Defendant ----------------- Coram: Deputy Judge W. Wong in Court Dates of Hearing: 13th-15th October 1997 Date of Delivery of Judgment: 7th November 1997 ----------------- JUDGMENT ----------------- The 1st Defendant is the proprietor, publisher and printer of a Chinese newspaper Hong Kong Daily News ("the said newspaper"). The 2nd Defendant at the material time was the editor of the said newspaper. The Plaintiff is a public company which publishes a range of magazines and newspapers. In the 21 November 1995 issue of the said newspaper at page 9 the Defendants published an article ("the article") which the Plaintiff said concerned its trade and business and is libellous. As a result the Plaintiff's reputation and goodwill has been damaged. The alleged offending article and its certified translation are set out in Annexure I and IA. THE ISSUES I have first of all to look at the article to see if the article referred to the Plaintiff. If it did then on the reading of the whole article whether it was libellous and then consider damages if I am of the view that the contents of the article were libellous. DID THE ARTICLE REFER TO THE PLAINTIFF The article referred to "the Sun Newspaper Group, from its newspapers to the 3 we W1u1X NhT R rKa newspapers published the following 3 weekly magazines, namely:- Oriental Sunday, a magazine published weekly Eastweek, another weekly published magazine East Touch also a weekly published magazine. Mr. Leung Tin Wai the chairman of Surprise Weekly magazine was previously the chief editor of the Next Magazine. He was subpoenaed to give evidence about an article published in the 11 October 1991 edition of the Next magazine. In that article it was mentioned that the chairman and manager of Oriental Daily was Ma Ching Kwan. He was nicknamed "the Sun" and had published a racing journal called "the Sun Racing Journal". Mak Kam Leung also stated that the Plaintiff has a special team to review other newspapers and magazines and made reports concerning the Plaintiff and its subsidiaries. Mak said he and his colleagues, associates in media business, warehousemen, transportation people also addressed the Chairman Ma Ching Kwan as "the Sun". Mak further said that since the publication of the Sun Racing Journal in September 1991 the Plaintiff has been commonly known as "The Sun Newspaper Group". In Gatley on Libel & Slander 8th ed. Para. 1306 it is stated:- The Plaintiff must prove a publication of libellous matter of and concerning him and, if he does not satisfy the onus which is on him in this respect, there is no cause of action. Where the party is actually named in the libel no difficulty can arise. But where the libel does not ex facie refer to the Plaintiff, e.g. where he is described by his initial letters, or by a fictitious name, or by a nickname, or by the name of another, or where he is not mentioned at all, extrinsic evidence must be given 'to connect the libel with the Plaintiff'. For this purpose witnesses can be called to testify that they understood, from reading the libel in the light of the circumstances narrated and their acquaintance with the Plaintiff, that he was the person referred to." In Hayward v. Thompson & ors. [1982] 1 QB 47 at p. 60 per Lord Denning MR, "One thing is of the essence of the law of libel. It is that the words should be defamatory and untrue and should be published 'of and concerning the Plaintiff'. That is, the Plaintiff should be aimed at or intended by the Defendant. If the Defendant intended to refer to the Plaintiff, he cannot escape liability simply by not giving his name. He may use asterisks or blanks. He may use initials or words with a hidden meaning. He may use any other devise. But still, if he intended to refer to the Plaintiff, he is liable. He is to be given credit for hitting the person whom he intended to hit. The law goes further. Even if he did not aim at the Plaintiff or intended to refer to him, nevertheless if he names the Plaintiff in such a way that other persons will read it as intended to refer to the Plaintiff, then the Defendant is liable." Further in Cassidy v. Daily Kinron Newspaper Ltd. [1929] 2 KB 331 at 341 Scrutton LJ said "If he publishes words reasonably capable of being read as relating directly or indirectly to A and, to those who know the facts about A, capable of a defamatory meaning, he must take the consequences of the defamatory inferences reasonably drawn from his words." The Defendant did not give evidence. On examination by Defence Counsel of the Plaintiff's 2 witnesses none of them agreed that other media groups such as "The Apple Group" which also published 3 weekly magazines were described by reference to "The Sun". From the evidence I am satisfied that the article was published "of and concerning" the Plaintiff and there is sufficient evidence from the 2 witnesses "to connect the libel with the Plaintiff". WHETHER THE WORDS WERE CAPABLE OF HAVING A LIBELLOUS MEANING The article described the Sun Group was in serious financial crisis because of drop in circulation of all its publications by the following phrases:- hQb jHQQe v*Y} 1u'Y Hr N ShQHr Bl!q@b N(uvQui the newspaper and its magazines was so bad that the management had desperately tried to savage and improve their circulation through whatever means including being scrupulous. Mr. Chan for the Defendant in cross-examination put to Mr. Leung and he agreed that the circulation of the Plaintiff's newspaper topped Hong Kong's media section in 1995 and 1996. This does not help. It only goes to show that what was published was a distortion of the facts. DAMAGES At para. 145 of Gatley 8th ed. The author cited the passage by Best CJ in De Crespigny v. Wellesley [1829] 5 Bing at. 402 which is as follows:- "publication in a newspaper may 'circulate the calumny through every region of the globe. The effect of this is very different from that of the repetition of oral slander. In the latter case, what has been said is known only to a few persons, and if the statement be untrue, the imputation cast upon anyone may be got rid of; the report is not heard beyond the circle in which all the parties are known, and the veracity of the accuser and the previous character of the accused will be properly estimated. But if the report is to be spread over the world by means of the Press, the malignant falsehoods of the vilest of mankind, which would not receive the least credit where the author is known, would make an impression which it would require much time and trouble to erase, and which might be difficult, if not impossible, ever completely to remove." The article no doubt is a distortion of true facts and intended to disparage the Plaintiff. In assessment of damages I have to consider the nature of the libel, the mode and extent of the publication and the conduct of the Defendant from the time and libel was published down to the trial. (1) THE NATURE OF THE LIBEL The Plaintiff and Defendant publish newspaper of similar nature covering news, gossips, stocks and shares, sports (including racing), fictions and news, stories and photographs of movie stars T.V. artists and pop song stars, trends and fashions. In ways they are competitive. The libel directly or indirectly targeted the Plaintiff's advertisement business in that if it were to be accepted that there was a serious drop in circulation it would certainly affect those who intended to place advertisements in the Plaintiff's newspapers and magazines. It would also affect people who intended to place full front page advertisements with the Plaintiff. The Plaintiff's reputation was also attacked in that the article said the Plaintiff reverted to its former unsavoury practices. (2) THE MODE AND EXTENT OF THE PUBLICATION I have asked for the whole issue of the Defendant's newspaper which contained the article (Exh.1). The whole issue is folded and divided into 5 separate sections. The main section consisted of the front page advertisement and world, local and sports news. The offending article was published on the first page of the second section. The second section contained miscellaneous articles including fictions, stories, gossips. The third section consisted of financial news, stocks and shares and entertainment news. The fourth section contained fashion and trendy news, toys, electronics, articles on health and religion and the last section on racing. I am of the view that what most readers would be interested in would be the first section which contained all the news, the third and the fifth sections which contained all the entertainment, financial and racing news. The second section would attract the least readers. The offending article was published in a place which did not attract much attention from its readers. A casual glance at the whole issue is self-explanatory. (3) THE CONDUCT OF THE DEFENDANT After the article was published letters were sent by the Plaintiff's solicitors to the Defendants but the Defendant refused to withdraw the article nor apologised. As a result the Plaintiff was driven to prove its case. No doubt the publication of the article was libellous but then the Plaintiff had suffered not much loss and damage as it's circulation still topped Hong Kong's media sector after the publication of the article. Further in my judgment not many people would have noticed the article as it was not published in sectors which attracted most readers but in an inconspicuous space within the gossips column. Even if they did they would not consider the article seriously. The conduct of the Defendants is culpable in that it did not admit the obvious and refused to apologise but then the damage caused to the Plaintiff is minimal. Taking all the matters aforesaid into consideration I assess the damages to be $100,000.00. In the circumstances there be judgment for the Plaintiff in the sum of $100,000. An injunction to restrain the Defendants and each of them whether by themselves or their servants or agents or otherwise howsoever from publishing the article or any similar words defamatory of the Plaintiff and costs. (Wesley Wong) Deputy Judge of the High Court Representation: Mr. Johnny Mok inst'd by M/s Simon Siu, Wong, Lam & Chan for the Plaintiff Mr. Kenneth Chan inst'd by M/s Fairbairn Catley Low & Kong for the Defendants - PAGE - HCA002852/1996 OREINTAL PRESS GROUP LIMITED v. HONG KONG DAILY NEWS LIMITED AND ANOTHER Normal Kodak Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR HCA002852/1996 OREINTAL PRESS GROUP LIMITED v. HONG KONG DAILY NEWS LIMITED AND ANOTHER Title Microsoft Word Document MSWordDoc Word.Document.8 HCA002852/1996 OREINTAL PRESS GROUP LIMITED v. HONG KONG DAILY NEWS LIMITED AND ANOTHER Normal Kodak Microsoft Word 9.0 Judiciary Hong Kong SAR Judiciary Hong Kong SAR HCA002852/1996 OREINTAL PRESS GROUP LIMITED v. HONG KONG DAILY NEWS LIMITED AND ANOTHER Title