PAUL KI PING KI AND ANOTHER v. ORIENTAL DAILY PUBLISHER LTD. AND OTHERS

Not for circulation
FAMV No. 25 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 25 OF 2000 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 201 OF 1999)

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DETERMINATION

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Mr Justice Chan PJ:

1. This is an application for leave to appeal to the Court of Final Appeal. There is also an application seeking an order that the 5th defendant named in this action should be served with a copy of the Notice of Hearing. We are told that the 5th defendant is now present in court. The second application therefore does not need to be dealt with.

2. The present action was commenced by the 1st applicant, Dr Paul Ki Ping Ki in his own name as the 1st plaintiff and in his trading name, the Hong Kong Washington Company as the 2nd plaintiff (which is the 2nd applicant). For the sake of clarity, the applicants will be referred to as the 1st and 2nd plaintiff. The 1st to 5th defendants are the publisher, editor and three reporters of the Oriental Daily News and the 6th defendant, a reporter of the Eastweek Magazine which is published by an associated company of the Oriental Daily News. The plaintiffs allege that the defendants had defamed them in an article published in that newspaper.

3. The background leading to that article is as follows. The 1st plaintiff put up an advertisement in the name of the 2nd plaintiff on 7 September 1995 in the Apple Daily News for the sale of land in Iowa in the United States of America at HK$100 per lot of one square inch, saying that the land had been visited by extra-terrestrial beings. Potential purchasers were invited to send their cheques to an address in an industrial building in Tuen Mun, Hong Kong. This advertisement aroused the suspicion of the reporters of the Oriental Daily News and they started to investigate. They visited the address and found that the 2nd plaintiff did not exist there and that the premises had not been used for some time. Based on such information and some photographs taken of the premises and on a research done by other reporters of the newspaper which was to the effect that there had been no report of any unidentified flying object (UFO) seen in Iowa for the last 10 years or so, the article in question was written in the Oriental Daily News two days later. It suggested that the 2nd plaintiff was a defunct company and that the scheme for the sale of land in Iowa might be a deception. The 6th defendant interviewed the 1st plaintiff and obtained certain information from him. Such information, however, did not contribute to the article in question.

4. The 1st plaintiff's claim was struck out by the trial judge on the ground that it was duplicitous and the 1st plaintiff was ordered to pay costs on an indemnity basis to all the defendants.

5. At the trial, the judge found that there was no affirmation showing service of the writ by the plaintiffs on the 5th defendant and he held that the 5th defendant was not a party to the trial.

6. The trial proceeded and at the end of the trial, the jury returned a verdict in favour of the 2nd plaintiff against the 1st to 4th defendants, but awarded only $1 as damages. The trial judge made no order as to costs but directed that the 2nd plaintiff should bear the jury expenses.

7. The jury also found for the 6th defendant and the 2nd plaintiff's claim against him was dismissed with costs on an indemnity basis.

8. Against the jury's second verdict and award and the judge's rulings and orders, the plaintiffs appealed to the Court of Appeal.

9. The main complaints were that the trial judge was biased in his directions to the jury, particularly on the question of damages, that the judge was wrong to order indemnity costs in favour of the 6th defendant and that the 3rd and 6th defendants and their counsel had lied to the court. It was alleged that the trial judge, in his directions to the jury, had deliberately degraded the 1st plaintiff implying that there was little damage to his reputation which was worthy of compensation. The judge was alleged by the plaintiffs to have failed to give a balanced summing-up on the evidence.

10. The appeal was dismissed by the Court of Appeal with costs. The court held that although the trial judge could have improved on his directions to the jury on the question of damages, he had not departed from the established principles. The court further held that the jury's award was reasonable in the circumstances of the case and that there was no reason to interfere with it. The Court of Appeal also found that the plaintiffs had no reason to involve the 6th defendant in the action and that the order that the 2nd plaintiff should pay the 6th defendant costs on an indemnity basis was correct. It also took the view that the judge's ruling striking out the 1st plaintiff from the action was correct since only the 2nd plaintiff was the target of the attack by the article in question, that his personal interest could be covered by the 2nd plaintiff and that there was no justifiable reason for the 1st plaintiff to be joined as a party. As to the credibility of the 3rd and 6th defendants, it was a matter for the jury.

11. The plaintiffs' subsequent application to the Court of Appeal for leave to appeal to the Court of Final Appeal was also rejected.

12. Before us, the applicants rely on nine grounds which are similar to those relied upon by them in the Court of Appeal and which can be grouped into five categories :-

(1) The trial judge was wrong in ruling that the 1st plaintiff should be struck out (ground 1) and that the 5th defendant was not a party to the trial (ground 6);

(2) The trial judge was wrong not to award costs and jury expenses to the 2nd plaintiff (grounds 2 and 7);

(3) The judge was wrong in his directions to the jury on the question of damages (grounds 8 and 9);

(4) The 3rd and 6th defendants were instructed to and did lie at the trial (grounds 3 and 5); and

(5) The trial judge was wrong to ignore the crime committed by the 3rd defendant in illegally obtaining the residential address of the 1st plaintiff (ground 4).

13. The criteria under which leave is granted are set out in section 22 of the Court of Final Appeal Ordinance. In our view, the applicants have failed to demonstrate to us that they satisfy either one of the criteria. The plaintiff's claim is one for unliquidated damages and as such, is not covered by section 22(1)(a) of the Ordinance. There is no question of any appeal as of right. See Cheng Lai Kwan v. Nan Fung Textiles Ltd [1998] 4 HKC 1. The applicants are also unable to show that as a matter of the utmost probability, let alone of virtual certainty that the damages ultimately awarded would reach or be in excess of $1 million. It is therefore unlikely that the Appeal Committee would exercise its discretion under section 22(1)(b) of the Ordinance to grant leave to appeal. See Zuliani v. Veira [1994] 1 WLR 1149; and Cheng Lai Kwan v. Nan Fung Textiles Ltd, supra.

14. We also take the view that none of the grounds which are relied upon by the applicants and which had been expanded by him before us can constitute any question of great general or public importance. The rulings of the trial judge in striking out the 1st plaintiff and excluding the 5th defendant from the trial and his orders for costs and jury expenses were amply justified and the Court of Appeal was correct in upholding these rulings and orders. The evidence before the jury no doubt included references to the 5th defendant and his involvement as part of the team of reporters who investigated the story. We do not think that the presence of the 5th defendant at the trial could have made any significant difference to the plaintiffs' case. The trial judge's directions on the question of damages have not been demonstrated to us to be at fault. The credibility of the 3rd and 6th defendants was clearly a matter for the jury. The method of obtaining the 1st plaintiff's residential address was quite irrelevant to the main issues involved in the trial.

15. Before us, the 1st plaintiff has made a lot of complaints against the trial judge alleging that he was biased against him and had conducted the trial unfairly. These complaints had been canvassed before the Court of Appeal which, having heard the 1st plaintiff, rejected these submissions. These matters are not the concern of the Appeal Committee for the purpose of section 22 of the Ordinance.

16. For these reasons, we see absolutely no merit in this application which must be dismissed.

[Submissions on costs]

17. We dismiss the application with costs against the applicants on an indemnity basis.