HOI TIN TONG CO LTD v. CHOY KWOK KEUNG

HCA 1755/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1755 OF 2013

____________

____________

_______________

DECISION
_______________

Introduction

1.  This is an appeal of the plaintiff against the order of Master Chow dated 22 July 2015 (“the Order”) whereby the application of the plaintiff for specific discovery against the respondent (a non-party) by its summons dated 25 February 2015 (“the Summons”) was dismissed with costs. This court shall deal with the plaintiff’s appeal by way of a rehearing of the Summons.

2.  The plaintiff’s application does not concern the defendant, Mr Choy. Mr Choy has not taken any part in the application. Mr Lam (together with Mr Chan), for the plaintiff, indicates that Mr Choy takes a neutral position. By the Summons, the plaintiff seeks specific discovery of the source video(s) of an allegedly defamatory video produced by a reporter of the respondent.

3.  Mr Ho, for the respondent, opposes this application on two broad grounds. First, he argues that the source video(s) is not relevant and its discovery is not necessary. Second, he prays in aid the newspaper rule. Mr Ho points out that the master rightly upheld the newspaper rule in the absence of special grounds to dismiss the plaintiff’s application.

Background facts

4.  I shall first outline those background facts relevant to this application. Briefly stated, the disputes between the plaintiff and the defendant arose from, among other matters, a video clip entitled “直擊海天堂洗膏水喉水沖霉嘴到O” (“the Offensive Video”).  The Offensive Video was posted on or around 11 September 2013 to the website address of appledaily.com by way of a news report. The website is the online portal of the respondent.

5.  The Offensive Video is about 2 minutes and 41 seconds in length. At my request, the plaintiff provided me with a soft copy after the hearing and I watched the Offensive Video. It concerned the signature product of the plaintiff, namely, turtle shell herbal jelly (“the Turtle Jelly”).

6.  The contents of the Offensive Video are not in dispute. The following matters are relevant.

 (1) The Offensive Video was purportedly filmed with a candid camera in the kitchen area of the Mongkok branch of the plaintiff (“the Premises”) by a reporter of the respondent. A number of pottery cups bearing the trade name of the plaintiff「海天堂」 can be seen in the Premises.

 (2) A lady, purportedly a staff member of the plaintiff (“the Lady”), was interviewed by a female reporter of the respondent. The Lady demonstrated to the reporter how, as a standard practice of the plaintiff, Turtle Jelly in mould could be refreshed by being rinsed with tap water and scrubbed with a sponge. The Lady explained the whole work process whereby such Turtle Jelly in mould could be made deceptively fresh and clean. She wore a black T-shirt with a name tag bearing the Chinese name of「林日紅」.

 (3) Whilst the Lady was highlighting how shocking the Turtle Jelly in mould could be, a male voice was heard uttering “But this one is very minor, not yet developed to look like mucus” (不過呢個好輕微, 未發到鼻涕) (“the Utterance”).

 (4) Both the Lady’s voice and the voice of the unidentified male were distorted slightly in an attempt to obscure their identity.

 (5) The voiceover of the Offensive Video explained that the visit was “led” (帶路) by a whistleblower (爆料人).

 (6) In the later part of the Offensive Video, Mr Choy was identified to be the whistleblower. He was described to be the former shareholder of the plaintiff. Mr Choy was depicted and he said a few words with his natural voice in the Offensive Video.        

7.  The Offensive Video is the subject matter of the plaintiff’s claim based on the tort of conspiracy to injure, unlawful interference with its economic interests, malicious falsehood and defamation. The plaintiff alleges, among other things, that Mr Choy conspired with an employee to make the false demonstration in the presence of the press (including the respondent) and cause the same to be recorded so as to cause damage to the plaintiff. In its Answers to the Request for Further and Better Particulars, the plaintiff identifies the employee to be Madam Lam.

8.  In his defence, Mr Choy maintains that he merely arranged a visit to be paid by Ms Lee who was and still is Senior Reporter of the respondent to the Premises for a brief demonstration of the alleged malpractice of cleaning the Turtle Jelly by Madam Lam.

9.  The defendant avers that he was in the Mainland when Ms Lee shot the Offensive Video in the Premises and he had no prior knowledge or involvement in the making or processing of the same. On that basis, he denies any conspiracy.

10.  In its Reply, the plaintiff makes a general denial of Mr Choy’s said averment.

Relevance

11.  In her affirmation in support of the plaintiff’s application, Ms Chiu explains that she has reason to believe that the Utterance was actually made by Mr Choy having worked with him for over 15 years. Thus, she suspects that Mr Choy was actually present in the Premises when Madam Lam’s demonstration was filmed and so Mr Choy, contrary to his allegation, was actively involved and did participate in the demonstration and the filming and making of the Offensive Video.

12.  After watching the Offensive Video myself, I am convinced that the plaintiff’s suspicion is not groundless. Without the special effects, it is likely that whether Mr Choy indeed made the Utterance and hence whether he was present in the Premises could be determined.   

13.  Thus, in my view, the source video(s) is clearly relevant to the pleaded issue in this action. Mr Ho, however, submits that since the plaintiff already has the admission of Mr Choy that Madam Lam’s demonstration to Ms Lee was arranged by him, whether Mr Choy was present when the demonstration was performed and the source video(s) was taken is irrelevant and it is merely a credibility point. 

14.  I cannot accept his submission. Notwithstanding the admission of Mr Choy, the plaintiff is plainly entitled to rely on the source video(s) to rebut Mr Choy’s alleged absence and lack of knowledge of the making of the source video(s) and hence the Offensive Video. The plaintiff should further be entitled to look into the full extent of Mr Choy’s involvement and participation. This is germane to not only the issue of liability but also, as accepted by Mr Ho, the issue of quantum of damages payable by Mr Choy as a result of the tort he has committed if so found.

15.  I should add that Ms Lee does not deny that the respondent has in its possession, custody and power the source video(s).  

The newspaper rule

16.  Ms Lee filed an affirmation on behalf of the respondent to pray in aid the newspaper rule in opposition to the plaintiff’s application. She first confirms that it was she who took the source video(s) used in the making of the Offensive Video. She explains that the voices of the Lady and the unidentified male were digitally altered and their faces were not shown so as to obscure the identity of the informant(s). She avers that she has personally guaranteed to the informants that their identity will not be revealed and that was the basis on which the information was imparted onto her.

17.  In the absence of any argument about the newspaper rule, I need only refer to the following dictum of Nazareth JA in John Sham otherwise known as Shum Kit-fun v Eastweek Publisher Limited [1994] 2 HKLR 381 at 391, which is cited to me by both parties, for a concise statement of the rule:   

“The newspaper rule is a rule of over one hundred years standing. A defendant at the pre-trial stage of an action for libel published in a newspaper should not be forced to disclose his source of information. It applies to only to newspapers but to the news media. The overriding jurisdiction for the rule is the public interest in the free flow of information.”

18.  The public interest in the free flow of information being the basis of the newspaper rule, I accept the submission of the parties that the newspaper rule could in appropriate circumstances afford the respondent protection against being compelled to disclose the identity of the informants even though it is not being sued as a defendant in this libel action.

19.  Mr Ho highlights to this court that only in special circumstances that this court should depart from the newspaper rule: Broadcasting Corporation of New Zealand v Alex Harvey Industrial Ltd [1980] 1 NZLR 163 (C.A.) at p.171 per Richardson J.

20.  Bearing the relevant legal principles in mind, I am not convinced, on the evidence, that the newspaper rule can assist the respondent for the following reasons.

21.  The only informants identified by Ms Lee in her affirmation are the Lady and the unidentified male making the Utterance. She does not allege that there are other informants whose voices did not appear and/or whose faces were not omitted in the Offensive Video at all.

22.  For the Lady, though her face was omitted and her voice was distorted, both the plaintiff and Mr Choy agree that she was Madam Lam. That being the case, there is no need to conceal the identity of the Lady. Mr Ho, nevertheless, submits that the agreement of the parties cannot be conclusive as to the true identity of the Lady. But there is no evidence contrary to their agreement.

23.  If the Lady was not Madam Lam but was actually another unidentified woman, there is no reason why Ms Lee did not say so in her affirmation. This must be a piece of relevant information to invoke the newspaper rule to protect the respondent against the disclosure of the identity of an unidentified individual, particularly in light of the agreement of the parties that Madam Lam was the Lady.

24.  This is so despite the respondent’s allegation that all the pleadings and witness statements were made available to the respondent only when the hearing bundle was served on the respondent a few days prior to the hearing before the master. The supporting affirmation of the plaintiff contained the allegation that Madam Lam was the Lady performing the demonstration to Ms Lee. Ms Lee must be in a position to and should adduce contrary evidence in her reply affirmation.

25.  Moreover, one cannot overlook the name tag on the T-shirt of the Lady conspicuously shown in the Offensive Video. Her identity was already exposed despite any alleged personal guarantee given by Ms Lee. It cries out for an explanation as to why the Lady had a name tag bearing the name of Madam Lam if she was not Madam Lam.

26.  The newspaper rule should be invoked only where there is a genuine purpose to serve. If the identity of an informant is known, there is no reason why the newspaper can still rely on the newspaper rule to resist necessary discovery on the pretext of concealing the identity of the informant: see Chung Ming Yu v Next Magazine Publishing Ltd, unreported, HCA785/2011, 15 October 2014 at §60 per DHCJ Marlene Ng.

27.  As to the identity of the unidentified male making the Utterance, in her affirmation, Ms Chiu expresses her suspicion that he was Mr Choy. Ms Lee of course knows his true identity. In her reply affirmation, she does not deny that he was Mr Choy. If he was indeed Mr Choy, as in the case of the Lady, Mr Choy needs no further protection under the newspaper rule at all as he was already identified to be the informant unequivocally in the Offensive Video.

28.  If the unidentified male was another person, again there is no reason why Ms Lee did not say so in her affirmation. Mr Ho submits that the respondent does not have to approve or disapprove the allegation of the plaintiff and it only abides by its duty to protect its confidential sources of information. I cannot agree.

29.  It is obvious that the respondent does not have to identify all its informants by their names in order to invoke the newspaper rule to conceal their identity. However, in view of its own announcement of Mr Choy to be the informant and the expressed suspicion that the unidentified male was Mr Choy and hence there was no other informant, Ms Lee should at the very least point out that the unidentified male was not Mr Choy and so there is a real unidentified informant to be protected under the newspaper rule. Her failure to do so makes me hesitant to apply the newspaper rule.

30.  Moreover, even if the unidentified male was not Mr Choy, the Utterance itself did not contain any informative matter. It was just his own observation of/comment on the Turtle Jelly depicted in the Offensive Video. If the unidentified male (if not Mr Choy) made the Utterance only, he can hardly be qualified to be an informant calling for protection under the newspaper rule.

31.  I note that there is no allegation that the unidentified male (if not Mr Choy) has given any other information to Ms Lee not disclosed in the Offensive Video.

32.  In the circumstances, I am not convinced on the evidence that there were any informants other than Madam Lam and Mr Choy triggering the application of the newspaper rule.

33.  I should put on record the undertaking given by the plaintiff through Mr Lam that the plaintiff will not commence legal proceedings against any person identified in the source video(s) other than Madam Lam and, of course, Mr Choy.

34.  There is no issue as to whether the source video(s) ever exists and whether it is in the respondent’s possession, custody and power. For the fair disposal of the dispute between the parties in this action, for the reasons given above, I believe the specific discovery sought is necessary and ought to be granted in the interest of justice. I can conclude that I should exercise my discretion to accede to the application of the plaintiff.

Conclusion and Order

35.  In the premises, I allow the plaintiff’s appeal and set aside the Order. I make an order in terms of paragraphs 1 and 2 of the Summons.

36.  Costs should follow the event and I further make a costs order nisi that the respondent should pay the plaintiff its costs of this appeal, to be taxed if not agreed. In regard to the costs of the plaintiff’s application before the master, Mr Lam asks for an order that the respondent do pay the plaintiff its costs with certificate for counsel to be taxed if not agreed, though this was not sought in the Summons.

37.  I cannot accept his suggestion. Section 43(2) of the High Court Ordinance, Cap.4 provides that the person against whom an order is sought under section 42 (discovery against non-parties) is entitled to his costs of the application and of complying with any order made thereto, unless the court orders otherwise: see also Hong Kong Civil Procedure 2016 Vol.2 §24/7A/8 at p.605.

38.  The plaintiff made the request for the discovery of the source video in early January this year but for unknown reason the respondent did not make any reply thereto. This necessitated the Summons. 

39.  I find the unexplained non-response of the respondent to be sufficient to justify my deprivation of their entitlement to costs to be paid by the plaintiff. I however do not find its objection to be so unreasonable that it should pay the plaintiff its costs of the application.

40.  I then come to the conclusion that the fairest costs order in respect of the plaintiff’s application including the hearing before the master is that there be no order as to costs. On a nisi basis, I so order.

41.  Lastly, I thank counsel on both sides for their succinct and helpful submissions.