WONG WAI KAY v. HONG KONG ECONOMIC JOURNAL COMPANY LTD AND ANOTHER

bjbj HCA 1385/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1385 OF 2010 ____________ BETWEEN WONG WAI KAY Plaintiff and HONG KONG ECONOMIC JOURNAL 1st Defendant COMPANY LTD YUEN YIU CHING 2nd Defendant ____________ Before: Hon Chung J in Court Dates of Hearing: 10 to 12 April 2013 Date of Judgment: 26 April 2013 _______________ J U D G M E N T _______________ Introduction 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 ). The defendants deny the claim and contend that: the subject article bears no defamatory meaning of and concerning the plaintiff; if the subject article should bear any defamatory meaning, the defamatory imputation is different from that alleged by the plaintiff ( the limited libel ); the limited libel is true in substance; the defendants are entitled to rely on the defence of fair comment. Relevant Background Facts Below are some of the common grounds between the parties: the plaintiff is a well-known businessman in the telecommunication and/or television industry; he is also publicly known by the nickname hs<w set out in sub-para (4) above, it can be inferred it was publicly known that the existing free television broadcasters were the plaintiff s potential business competitors should the said licence application succeed (they will be called the plaintiff s business competitors below for convenience). The Alleged Libel It is undisputed the subject article can be broken into: the headline; the introductory paragraph; the caption which is super-imposed on a photograph which depicts the plaintiff; the text. 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 ). The subject article s first offending part (the headline) is: Wyb!q m 0 P}YGY 1\/f competitors); in order to do so, the plaintiff demeaned in public those competitors by derogatory remarks (para 18, plaintiff s opening submissions and para 12, plaintiff s final submissions). 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 The legal principles relevant to this aspect are undisputed: words in an article are normally construed according to their natural and ordinary meaning: Gatley on Libel and Slander (2008) 11th Ed, para 3.16; although the same words in an article may bear different meanings to different readers (because of their temperament, knowledge and/or experience and so on), for the purpose of defamation litigation, the words have only a single meaning: Next Magazine Publishing Ltd and Others v Oriental Daily Publisher Ltd (2000) 3 HKCFAR 160, para 26; Oriental Daily Publisher Ltd and Another v Ming Pao Holdings Ltd and Another FACV 1/2012 (26 September 2012), para 48 to 50; in order to ascertain that single meaning, the court puts itself in the position of a fictitious ordinary reader: Oriental Press Group Ltd and Another v Fevaworks Solutions Ltd HCA 2140/2008 (25 February 2011), para 15; it is necessary to take into account the context of the words in an article. It follows that the context and circumstances of those words must be taken into consideration, and the article must be taken as a whole: Gatley, para 3.29 and 3.30; whether the text of an article will be sufficient to neutralize the defamatory implication of a headline is a question of fact: Gatley, para 3.31. There is no reliance on the innuendo defamatory meaning. The above have been considered when I determine the true meaning of the subject article. (b) Other features/passages of the subject article Several matters set out in the subject arti & /n\O |vU\&N^ ,g0W l g*Y giQ u;mI{ 0& _/fs 0FOvQ [t^R [/fs & /f}Y N Y 0& ~^}Y S}Y<O TrU;N 'Y0}KN 0& uld reasonably be understood to refer to TVB. On the other hand, the defendants draw attention to the manner in which the subject article has been structured: the headline and the introductory paragraph represent the (writer s/editor s) perceived summary of the subject article; the text begins by giving a summary of the plaintiff s stance; the text then sets out the stance (or response) of a representative of TVB; the text ends with the views of two independent commentators, one was an academic from a univer (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. Further, the meaning of the phrase actually used by the plaintiff ( he plaintiff. Similar to para 20 above, placing the phrase within quotation marks in such manner reinforces that impression. 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 red when the plaintiff was interviewed by Ng; the defendant s malice in relation to the defence of fair comment, and the cause of action in malicious falsehood. 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 te me 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? As stated above, the thrust of the defendants primary case is that, although the phrase ed 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: speaker A uttered derogatory statements against a well-known individual (such as, Mother Teresa (who most would consider (among other things) an icon of kindness and charity) was an unkind and uncharitable person) ( the Mother Teresa headline ); speaker B uttered derogatory statements against an unknown individual ( the John Doe headline ) (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. 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). 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). 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. 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. 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: free television could broadcast more programs on the knowledge of life, health and education, and even on learnings (such as photography and baking cakes); people have been known to be paying high fees for private tuition and so one could infer there is a market (or demand) for the pursuit of knowledge; one should not assume every viewer of free television would want to switch-off when they are at home. The text also contains what purports to be its writer s own observations: television channels such as National Geographic channel and Discovery channel are both widely praised and profitable; but they may suffer huge loss if they were not English productions and so were able to be distributed worldwide. 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. 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). 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: the ordinary reader would not find the offending parts to be substantiated by the text; on the contrary, he would find them not to be substantiated by the text. 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. 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: It is plain that the eye-catching headline and the eye-catching photograph will first attract the reader s attention, precisely as they were intended to do, and equally plain that a significant number of readers will not trouble to read any further. This phenomenon must be well known to newspaper editors and publishers, who cannot, therefore, complain if they are held liable in damages for any libel thus published to the category of limited readers (the Charleston case, p 71). As state above, there may be cases where the text will be insufficient to neutralize gdi< gdIe gd ) gd ) gd3Z5 gd_j hzD+ hzD+ hRQ8 h\Zm gdN6 gdmH gdmH gdN6 hS%4 gd6@ gdnP gdzW) gd9& gdcz gd%r gdU\w gd6@ hT\_ gd[t gd JQ gd JQ gdcz ht/h gdnw* gdnw* gd[t gd[t hr%D gdjW_ gdjW_ gdnw* gdnw* hMp, = the harm caused by the headlines. 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 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: whether a person is arrogant is a matter of opinion rather than a matter of fact; this can be better illustrated by the example of a person accused of being dishonest; whether this defence can be established for the last-mentioned accusation will have to depend on whether the accuser can establish the fact(s) in support of such an opinion; a fact which is capable of (but may or may not in fact be) a justification of that accusation is that the person has committed theft, or some other dishonest deeds, or has lied to others; conversely, if the accuser merely establishes that the same opinion is held by some others, this would not be sufficient to establish the defence: for example, Gatley, para 11.6 and 11.7; the defendants plead that the plaintiff has from time to time made arrogant comments/criticisms in public (or caused them to be published) purportedly in support of this defence; the evidence adduced, however, falls short of establishing that plea. The defendants are only able to show that some media articles might have portrayed the plaintiff to be arrogant (this appears to be accepted by the defence: para 17 to 19, defendants closing submissions). 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 Again, it is unnecessary to determine this aspect. 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 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 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. On the other hand, I do not agree with the defendants that mere nominal damages should be awarded. It appears therefore an award of general damages in the range of $100,000 to $200,000 would be appropriate. Conclusion The plaintiff s claim is dismissed. Other Matters 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. The new evidence which the plaintiff intended to adduce was the first 30-second or so of a recording showing the Editor 1z|T 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. I agreed with the defence: the new evidence has not been pleaded as part of the particulars for malice; it has not been part of the plaintiff s pleaded case that it was the deliberate design (or methodology) of the Editor to act maliciously; in any event, the matter was raised too late such that there will be a real risk of irreparable prejudice being caused to the defence if it were allowed to be raised. 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 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. (Andrew Chung) Judge of the Court of First Instance High Court 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 PAGE - A B C D E F G H I J K L M N O P Q R S T U V A B C D E F G H I J K L M N O P Q R S T U V A B C D E F G H I J K L M N O P Q R S T U V A B C D E F G H I J K L M N h] b h] b gdmH gdY& gdmH h;Hf hg^U O P Q R S T U V gdY& [Content_Types].xml Iw}, $yi} _rels/.rels theme/theme/themeManager.xml K Y, sQ}# theme/theme/theme1.xml w toc'v )I`n 3Vq%'#q x}r :\TZaG I u3 L+M2 e\O* $*c? )6-r IqbJ#x ,AGm T[XF64 E)`# R>QD =(K& =al- 4vfa 0%M0 theme/theme/_rels/themeManager.xml.rels 5 6?$Q K(M&$R(.1 [Content_Types].xmlPK _rels/.relsPK theme/theme/themeManager.xmlPK theme/theme/theme1.xmlPK theme/theme/_rels/themeManager.xml.relsPK <?xml version="1.0" encoding="UTF-8" standalone="yes"?> <a:clrMap xmlns:a="http://schemas.openxmlformats.org/drawingml/2006/main" bg1="lt1" tx1="dk1" bg2="lt2" tx2="dk2" accent1="accent1" accent2="accent2" accent3="accent3" accent4="accent4" accent5="accent5" accent6="accent6" hlink="hlink" folHlink="folHlink"/> $!T: i$&j setup hca.dot Cheung Tsui Wah, Winnie Microsoft Office Word Judiciary Hong Kong Title <b:Sources SelectedStyle="\APA.XSL" StyleName="APA" xmlns:b="http://schemas.openxmlformats.org/officeDocument/2006/bibliography" xmlns="http://schemas.openxmlformats.org/officeDocument/2006/bibliography"></b:Sources> <?xml version="1.0" encoding="UTF-8" standalone="no"?> <ds:datastoreItem ds:itemID="{A7FE9655-CB22-433C-8291-0C40821E0AEC}" xmlns:ds="http://schemas.openxmlformats.org/officeDocument/2006/customXml"><ds:schemaRefs><ds:schemaRef ds:uri="http://schemas.openxmlformats.org/officeDocument/2006/bibliography"/></ds:schemaRefs></ds:datastoreItem> Microsoft Office Word 97-2003 Document MSWordDoc Word.Document.8