PUI KWAN KAY v. MING PAO HOLDINGS LTD AND OTHERS

CACV 201/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 201 OF 2013

(ON APPEAL FROM HCA NO. 854 OF 2010)

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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):

1.  Our main judgment in this appeal was handed down on 17 November 2015.  By that main judgment, we allowed the appeal and gave the Defendants costs in the appeal and below.  After that, the following summonses and motion were filed:

(a) A notice of motion issued by the Plaintiff on 15 December 2015, leave was sought to appeal to the Court of Final Appeal based on 2 questions of great general or public importance [“GPI”]:

“1. What is the proper approach that an appellate court should take in considering whether it should reverse the determination of a trial judge on whether a defence of Reynolds privilege had been made out?

2. Where the jury has made findings on the defamatory meanings of the statements, is the trial judge entitled to interpret/derive the appropriate stings of such defamatory statements as found by the jury?  And whether the appellate court should only disturb his interpretation and assessment when such conclusions are impermissible, not open to him, or plainly wrong.”

(b) A summons issued by the Plaintiff on 27 November 2015, seeking to vary the costs order made by us to cut down the costs awarded in respect costs below to 30%;

(c) A summons issued by the Defendants on 30 November 2015 seeking to vary the costs order by having certificate for 2 counsel (both in the appeal and below) and summary assessment of costs.

2.  We shall deal with the application for leave to appeal to the Court of Final Appeal first.

3.  With respect, we agree with Mr Law that Question 1 does not arise.  It is clear from our judgment that we did not find it necessary to resolve the difference in approach between Flood and Galloway, see paragraph 32 of our judgment.  We are not persuaded by the submissions of Mr Pao SC that the point is engaged in the intended appeal.  Having read his submissions carefully, counsel’s contention was that we erred in holding the judge made those errors of principle as discussed in our judgment on the facts of this case.  These are points peculiar to the case, not GPI questions. Question 1 cannot provide a disguise for these non-GPI points to be canvassed in Court of Final Appeal.

4.  On Question 2, we have not decided that as a matter of law the judge was not entitled to extract the sting from the meaning of the words as found by the jury.  What we have held was on the facts of the present case, in light of the jury’s rejection of meaning (3), it was not open to the judge to identify the stings in the way he did.  Again this is very much a decision on the peculiar facts of the present case.

5.  In his written submissions, Mr Pao raised a new argument based on Bonnick v Morris.  We explained at paragraph 61 of our main judgment why this could not provide a basis of supporting the judge’s decision in the present appeal.  In any event, it is not within the scope of Question 2 and Mr Pao did not properly formulate before us a Question 3 for our consideration.  In any event, in light of what we said at paragraph 61, we do not accept this to be a GPI question.

6.  We do not see any ground for granting leave under the “otherwise” limb.

7.  For these reasons, we dismissed the motion with costs to the Defendant, such costs are to be taxed if not agreed.

8.  Turning now to the Plaintiff’s application to vary our costs order nisi, we shall not recite the relevant principles which has been adequately discussed in previous authorities, including some recent ones: Wong Kam Tong v Incorporated Owners of Tin Shing Court [2012] 2 HKLRD 1128; Hung Fung Enterprises Holdings LTd v Agricultural Bank of China [2012] 3 HKLRD 679; Pfeiffer GmbH v Cheung Hay Kit CACV 245 of 2013, 29 October 2014; Chan Shun Kei v Hong Kong Construction CACV 192 of 2014, 7 March 2016.

9.  We accept the submissions of Mr Pao that there is sufficient justification for depriving the Defendant of some of the costs below in view of its failure in respect of several limbs of the defence case. We do not agree with Mr Law that the bulk of the costs at the trial were incurred on account of the Reynold defence.  In any event, we are dealing with the costs of the whole action as opposed to the costs of the trial. 

10.  The difficulty lies in setting the appropriate reduction, bearing in mind we did not sit through the trial. 

11.  Doing the best we can, having regard to the submissions before us, we think a fair order is to give the Defendants 50% of the costs below.  We vary our costs order accordingly.  We also give the Plaintiff his costs of the summons of 27 November 2015, again such costs are to be taxed if not agreed.

12.  In respect of the Defendants’ application for certificate for 2 counsel, in view of the complexity of the matter we accept it was appropriate for 2 counsel to be instructed, both in the appeal and below.  We certify accordingly.

13.  Mr Law very wisely did not pursue the application for summary assessment.

14.  We give the Defendants their costs of the summons of 30 November 2015, such costs are to be taxed if not agreed.