ALBERT CHENG AND ANOTHER v. TSE WAI CHUN PAUL

FACV No. 12 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 12 OF 2000 (CIVIL)

(ON APPEAL FROM CACV NO. 170 of 1998)

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JUDGMENT ON COSTS

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Chief Justice Li :

1. This is the judgment of the Court on costs.

2. In the judgment dated 13 November 2000, the Court made an order nisi : (1) There be no order as to costs before the judge (2) The respondent should pay the appellants' costs in the appeal to the Court of Appeal and this Court. The parties have since sent in written submissions on costs.

3. As to the costs of the trial, the particulars of malice were pleaded shortly before it began. The parties and the judge proceeded on the assumption that each of the particulars pleaded was capable in law of constituting malice to defeat the defence of fair comment. No argument was advanced before the judge that the motives pleaded in heads (3) and (4) of the particulars were not so capable. In the circumstances, the Court remains of the view that there should be no order as to costs before the judge.

4. As to the costs of the appeal to the Court of Appeal and this Court, the respondent accepts that the usual order is that costs should follow the event. But he submits that there are here exceptional circumstances which justify departure from the usual order. The respondent seeks orders as follows : (1) If there be no order as to the costs of the trial, there be no order as to the costs of the appeals. (2) Alternatively, if the appellants were to be awarded the costs of the appeals, he should be awarded the costs of the trial. (3) As a further alternative, if the order nisi should become absolute, the order that he pays the appellants' costs in the appeals should be stayed until after the re-trial.

5. To justify departure from the usual order that costs follow the event, one of the principal matters relied on by the respondent is his contention that the Court's judgment has "substantially altered" the law of defamation in regard to the issue of malice. That contention as to the effect of the Court's judgment is not well founded. There was no direct authority on what constitutes malice in the fair comment defence. When putting forward their views on the matter, some learned editors of leading texts have recognised this and have used phrases such as "it is submitted" (see Gatley on Libel and Slander (9th ed) para. 16.2) and "it seems" (see 28 Halsbury's Laws (4th ed) para. 145 n. 9). That the matter was not covered by direct authority and that some commentators have taken or leaned towards a view which has turned out to be different from the Court's judgment does not justify departure from the usual order. Nor are there other matters which justify such departure.

6. The appellants had in essence maintained the ultimately successful legal argument both in the Court of Appeal and this Court. In our judgment, the usual order that costs should follow the event is appropriate. We see no justification for any stay until after the re-trial.

7. Accordingly, the Court now makes the order nisi absolute.