EASTERN EXPRESS PUBLISHER LTD. AND ANOTHER v. MO MAN CHING AND ANOTHER

CACV 178/98

H E A D N O T E

Intention of maker of an alleged libellous statement inadmissible for identifying the person defamed.

CACV 178/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 178 OF 1998

(ON APPEAL FROM HCA 5660 OF 1995)

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J U D G M E N T

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Liu, J.A.:

1. This is a libel action before Yuen, J, commenced by Eastern Express Publisher Limited (1st plaintiff) and Oriental Press Group Limited (2nd plaintiff) against Claudia Mo (1st defendant) and The Secretary for Justice on behalf of The Director of Broadcasting (2nd defendant). Damages were claimed against these defendants by the plaintiffs. The judge dismissed the libel action, but she would have awarded $80,000 to the 2nd plaintiff if it had succeeded. The 1st and the 2nd plaintiffs feel aggrieved by the dismissal, hence this appeal.

2. The plaintiffs' claims against the defendants arose from a broadcast in Cantonese on Asia Television Home Channel of a programme entitled "傳媒春秋" (Media Watch) on 11 March 1995 between 7:30 p.m. to 8:00 p.m. It would seem that the injunctive relief claimed by both plaintiffs was no longer a live issue. The 1st defendant was one of the two co-hosts of Media Watch, but she was not expressing her personal views. She was a presenter on a script prepared by the staff of Radio Television Hong Kong. Mr Lai Chau-wah was the executive producer of the programme. Mr Lai was actively involved in part preparation of the script which was approved by him in its entirety.

3. Two Statements delivered by the 1st defendant in the programme were alleged to be defamatory of the plaintiffs. The general run of the programme, including these statements, may be summed up as follows:

"咁呀講返吓比較熱門嘅傳媒話題，最近呢大家都可能有留意到Uh傳媒之間嘅律師信滿天飛呀，咁比人覺得呢依家係咪潮流興互相踐踏喎。"

4. The agreed translation reads:

"Let's talk about a relatively popular topic among the media. Recently everyone might notice that solicitors' letters are flying everywhere among the media - makes people think whether there is not a trend of treading (trampling) on each other". (the First Statement)

5. The First Statement was followed by a commentary of the 1st defendant's co-host that in addition to the many disputes, on a number of occasions legal proceedings ensued. He discovered on the same page in an issue of the Oriental Daily News, reports of three of these legal cases. Next, was the splashing on the screen of some newspaper clippings with a voice-over by the 1st defendant. An account of what was said by the 1st defendant in the voice-over was given by the judge:

"(a) There was first an action instituted by Mr. Li Ka Shing against Next Magazine.

(b) Then there was a notice issued by the Oriental Press Group (the 2nd Plaintiff) alleging that the contents of an interview with Mr. Louis Cha published in the Hong Kong Economic Times were at variance with what Mr. Cha said in a later article.

(c) Then there was another notice issued by the Oriental Press Group (the 2nd Plaintiff) in respect of a report in the Hong Kong Economic Times that a reporter accused of fraud was, at the time of the alleged incident, an employee of the Oriental Daily News.

In respect of both (b) and (c), the Oriental Press Group (the 2nd Plaintiff) expressly reserved its legal rights to pursue the matter. Subsequently, the Hong Kong Economic Times published a correction to the effect that the reporter in question was at the time of the alleged incident, actually an employee of the Tin Tin Daily News, although he did become an employee of the Oriental Daily News after the time of the alleged incident. An apology was issued.

(d) On the same page as the correction, there was coverage of a defamation action instituted by the Oriental Press Group (the 2nd Plaintiff) against Mr. Steve Vines, a former chief editor of the Eastern Express newspaper, on certain comments he made to the local and international media after he left the Eastern Express.

(e) Still vivid in the memory was the "Pearl Report" programme about the Eastern Express, broadcast on TVB's Pearl Channel.

TVB subsequently issued an apology in a number of publications, admitting that parts of the contents relating to the Eastern Express were not supported by facts. Before the apology was published, there was considerable coverage about TVB in the Oriental Daily News.

There were also other comments from other members of the media after the programme about the Eastern Express was broadcast, and as Mr. Lam Heng Chee (林行止) of the Hong Kong Economic Journal had narrated some of the contents of the "Pearl Report", he also had to issue an apology later."

6. Then the 1st defendant and her co-host staged a short discussion. The 1st defendant referred to a report of a features writer receiving a solicitors' letter after he had taken part in commenting on the "Pearl Report". The 1st defendant immediately echoed how frightening it was. Her co-host "then remarked on there being so many legal actions, and asked if there was an attempt to monitor the media by means of legal process."

7. Another statement was thereupon made in these terms:

"咁但係吓吓人地即係嘅係咁倚題提到吓你，你都話好唔滿意，話要告你，咁即係好似想嚇人叫人收聲咁喎。"

8. The agreed translation of that is:

".... But if every time other people mention about you only incidentally (in a casual manner) you then say you are not satisfied an d want to sue, this is akin to frightening people into keeping their mouths shut." (the Second Statement)

9. At the material time, the 1st plaintiff was the publisher of an English Newspaper, the Eastern Express. The 2nd plaintiff had a number of publishing subsidiaries. At the material time, they published the following newspapers and magazines:

(a) Oriental Daily News;

(b) Eastern Express;

(c) Oriental Sunday;

(d) Eastweek;

(e) The Sun Racing Journal.

10. The 1st defendant was in the employ of Radio Television Hong Kong which was run by the 2nd defendant.

11. It was held/found by the judge:

(1) that the words complained of referred to the 2nd plaintiff but not the 1st plaintiff;

(2) that the First Statement was not defamatory;

(3) that the Second Statement was defamatory;

(4) that the defence of justification failed with respect to the defamatory meaning of the words in the Second Statement as understood by the judge;

(5) that if the Second Statement had carried the meaning contended for by the defendants, save for the last 14 characters the same would have been justified; and

(6) that the last 14 characters in the Second Statement were fair comment upon a matter of public interest.

12. These last 14 words were: " 咁即係好似想嚇人叫人收聲咁喎 "("this is akin to frightening people into keep their mouths shut"). The judge understood these words to bear the natural and ordinary meaning of the plaintiffs appearing "to be wanting to intimidate others into silence by threatening legal actions whenever" they were referred to, even incidentally. These 14 words provided, so the judge found, the sting.

13. The issues in this appeal may be shortly stated as follows:

I Is the judge wrong in concluding that neither of the Statements referred to the 1st plaintiff?

II Is the judge wrong in concluding that the First Statement was not defamatory?

III Is the judge wrong in concluding that the Second Statement was defamatory?

IV If the First Statement was defamatory, was justification or fair comment available as a good defence?

V Is the judge wrong in rejecting the defendants' interpretation of the Second Statement?

VI Is the judge's reading a sting into the latter part of the Second Statement wrong? And having regard to such of the facts alleged or referred to in the words complained of in the Second Statement, was the "sting" fair comment under s. 27 Defamation Ordinance?

14. Preliminaries.

15. The defendants had argued that in their natural and ordinary meaning, the words before the "sting" in the Second Statement meant and were understood to mean simply that some members of the media like the plaintiffs were inclined (or more inclined than others) to sue or threaten to sue, even if they were referred to incidentally and that what followed was only a probable consequence. In other words, it was contended by counsel for the defendants that the so-called sting as understood by the judge viz "the (plaintiffs) was employing bullying tactics with a view to suppressing its competitors into silence" was not in fact a discrete comment but a probable consequence of the preceding allegation of fact in the Second Statement. However, the judge was only prepared to concede that insofar as the allegation of fact could be understood in the sense as suggested by the defendants, it was true, but she was unable to accept that the sting would therefore be removed. Before us, the defendants maintained that their version of both the allegation of fact and its probable consequence should have been held to be true. The judge also read words before the "sting" as an allegation of fact, but she rejected the defendants' version of the effect of the Second Statement. On what she regarded as the proper reading of that allegation of fact, the judge concluded that not only were the plaintiffs "prone to threaten legal proceedings whenever (they were) mentioned, even incidentally, but also that the last 14 characters inevitably gave rise to a "sting".

16. Shortly stated: the judge found in the Second Statement a pungent comment of wanting "to intimidate people into silence." That provided the objectionable sting. As to that, the judge further found "a sufficient substratum of supporting fact for the comment" in one of the incidents given in the voice-over. She concluded that in the absence of justification, the single incident was sufficient to sustain a defence of fair comment under s. 27 of the Defamation Ordinance. S. 27 provides: "in an action for libel ...... in respect of words consisting partly of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved". The incident sought to be relied upon is set out in the account given by the judge of the 1st defendant's voice-over in the Media Watch programme, numbered (c) - the Hong Kong Economic Times report.

17. I Was the 1st plaintiff referred to in the two Statements?

18. First of all, the plaintiffs relied on the evidence of Mr Lai Chau-wah, the executive producer of the programme. Mr Lai was called as a witness for the defendants. In cross-examination, he conceded that in approving the programme script "it must be clear to (him) that the meaning ... some members (were) more inclined than the others to issue proceedings, (could) only refer to the plaintiffs".

19. Leaning heavily on a general remark made by Lord Denning, MR in Hayward v. Thompson & Others [1982] 1 QB 47 at 60B and a passage in paragraph 7.1 of Gatley on Libel and Slander, 9th Edn, Mr Cheng Huan, leading counsel for the plaintiffs invited this court to pay heed to the subjective intention of the executive producer. Counsel submitted that the deliberate intention of Mr Lai to speak of both plaintiffs was indicative that the 1st plaintiff was also referred to in the two Statements.

20. The passages counsel sought to make capital of are: first in Gatley,

"It is usually clear enough that the words are published of the plaintiff because he is named in the statement and the defendant intends to refer to him, but neither of these elements is necessary". (Emphasis supplied)

And in Hayward v. Thompson,

"One thing is of the essence in the law of libel. It is that the words should be defamatory and untrue and should be published 'of and concerning the plaintiff'. That is, the plaintiff should be aimed at or intended by the defendant. If the defendant intended to refer to the plaintiff, he cannot escape liability simply by not giving his name. He may use asterisks or blanks. He may use initials or words with a hidden meaning. He may use any other device. But still, if he intended to refer to the plaintiff, he is liable. He is to be given credit for hitting the person whom he intended to hit." (Emphasis supplied)

21. It was further submitted that since the two Statements were published of and concerning the plaintiffs, it mattered not whether or not the public knew or was expected to know that they were the targets. The 1st plaintiff was not named in the programme. It was pressed upon this court that Mr Lai's subjective intention which was calculated to pursue both plaintiffs was, of itself, good evidence that the two Statements were referable to the 1st plaintiff.

22. In my view, counsel could not legitimately derive such support for his contention from these passages when they are read in their proper context. In Knupffer v. London Express Newspaper Limited, [1944] AC 116 at p.119, Viscount Simon, LC said:

"Where the plaintiff is not named, the test which decides whether the words used refer to him is the question whether the words are such as would reasonably lead person acquainted with the plaintiff to believe that he was the person referred to."

At p. 121, the Lord Chancellor continued:

"Witnesses called for the appellant were asked to carefully frame question: 'to whom did your mind go when you read that article?' and they not unnaturally replied by pointing to the appellant himself, but that is because they happen to know the appellant as the leading member of the society in this country and not because there is anything in the article itself which ought to suggest even to his friends that he is referred to as an individual."

"There are two questions involved in the attempt to identify the appellant as a person defamed. The question is a question of law - can the article, having regard to its language, be regarded as capable of referring to the appellant? The second question is a question of fact - does the article, in fact lead reasonable people, who know the plaintiff, to the conclusion that it does refer to him?" (Emphasis supplied).

23. It is reasonably clear that an unnamed person said to be referred to in a libellous statement is not to be identified by what is predetermined in the mind of its maker but what is perceived by the reader from the statement itself. It is not what a statement is calculated to refer to but what it is reasonably understood to refer to.

24. In Hough v. London Newspapers Limited, [1940] 2 KB 507, at p.515 Lord Goddard, then sitting in the English Court of Appeal, observed:

"In my opinion it is unnecessary, though I do not say inadmissible, to call persons to say that they, did so understand the words, provided it is proved that they are people who might so understand them. Such witnesses were called in Cassidy v. Daily Mirror Newspapers Ltd. In the case of words defamatory in their ordinary sense the plaintiff has to prove no more than that they were published: he cannot call witnesses to prove what they understood by the words ......... the only question is, might reasonable people understand them in a defamatory sense?"

There would seem to be all the more reason to disallow what was intended by the author of the published words.

25. The fallacy in counsel's argument is best illustrated when paragraph 7.1 at p.161 of Gatley is read in full and in its proper context. Paragraph 7.1 reads:

"Words must be published 'of the plaintiff'. To succeed in an action of defamation the plaintiff must not only prove that the defendant published the words and that they are defamatory: he must also identify himself as the person defamed. 'No writing whatsoever is to be esteemed a libel unless it reflects upon some particular person.' 'It is an essential element of the cause of action for defamation that the words complained of should be published 'of the plaintiff'.' There is no cause of action, for instance, if words are defamatory of the plaintiff's relatives, unless they reflect on the plaintiff.

It is usually clear enough that the words are published of the plaintiff because he is named in the statement and the defendant intends to refer to him, but neither of these elements is necessary. The question in all cases is whether the words might be understood by reasonable people to refer to the plaintiff, subject to the qualification that where the words are published to persons who have special knowledge the issue will be decided by reference to what reasonable persons possessing that knowledge would understand by them.

Although it is irrelevant in establishing that the defendant is prima facie liable that he did not intend to refer to the plaintiff (and may never have heard of the plaintiff) this is qualified by the fact that in such cases he may have a defence if he makes a statutory offer of amends."

26. Whom the maker of a defamatory statement intended or did not intend to refer to is wholly irrelevant to the proper identification of the person defamed. But if the maker had never intended to refer to the complainant, it may provide him with a defence if he makes a statutory offer of amends. Read in its proper context, Lord Denning's observation spoke of an intention to refer to a complainant in the above sense.

27. Mr Lai's inadmissible intention aside, in this case, Eastern Express Newspaper was mentioned six times in the programme between the First and the Second Statements. In his supplemental witness statement, Mr Mak Kam-keung affirmed that both plaintiffs were and were understood to be referred to for the "widely known fact" that the Eastern Express Newspaper was, at the material time, published by the 1st plaintiff as its proprietor and publisher and that the 1st plaintiff had been and still was one of the subsidiaries of the 2nd plaintiff, a parent public company listed on the Hong Kong Stock Exchange, with a number of publishing subsidiaries responsible for the publishing of newspapers and periodicals, such as Oriental Daily News, Eastern Express, Oriental Sunday, Eastweek and The Sun Racing Journal. Further, the voice-over segment in the programme described a case involving Eastern Express, following the First Statement which raised the question of trampling over one another by the media. Also, the Oriental Group of Companies of which the 1st plaintiff was one were clearly portrayed as the protagonists in a multitude of legal actions.

28. It is settled principle that an impressionistic approach should be taken on the issue of identification. See Louis v. Daily Telegraph Limited [1964] AC 234 at p.284 and Morgan v. Odhams Press Limited & Another [1971] 1 WLR 1239 at p.1246C, p.1254C & p.1270A. With a widely known link of the 1st plaintiff to the 2nd plaintiff and Eastern Express and the information fed in the programme, the overall effect of the television presentation must tie these two Statements to the 1st plaintiff.

29. II Was the First Statement defamatory?

30. Mr Lai was led into expressing a view on "treading" or "trampling". It was not unambiguous, but the judge took that into account. She even acknowledged Mr Lai as an experienced media person. The judge nevertheless concluded that "treading" or "trampling" read in the context of the First Statement referred simply to "combative behaviour in a business known to be fiercely competitive". She decided that it was not improper behaviour and that the First Statement taken as a whole was not defamatory.

31. The natural and ordinary meaning of the words in the First Statement perceived by the judge as an ordinary reasonable person in the special setting should not be lightly differed from. The one-stage analysis made by the judge was closely reasoned. I am not persuaded that there is any flaw in the judge's process of reasoning to enable us to interfere.

32. III and V Are the judge's decisions on the Second Statement wrong?

33. The allegation of fact in the Second Statement merely conveyed, so Mr Anderson Chow submitted, that the plaintiffs were inclined or more inclined than others to sue or threaten to sue even if they were referred to incidentally and that what was found by the judge to be the "sting" in the concluding words in the Second Statement i.e. "the plaintiffs appeared to be wanting to intimidate others into silence", was not really a stinging comment but a natural consequence flowing from the earlier allegation of fact. On the interpretation proffered by the defendants, so counsel argued, the allegation of fact in the Second Statement was true as was indeed its likely consequence. The judge rejected the defendants' interpretation. On her reading of the allegation of fact in the Second Statement, the last 14 characters were found by the judge to mean and to be understood to mean that the plaintiffs appeared to be wanting to intimidate others into silence. That was the "sting". There would seem to be no justification for interfering with the judge's reading of those characters in the proper context and her rejection of the exculpatory submission advanced on behalf of the defendants. Counsel for the defendants rehearsed his arguments before this court. The judge was unimpressed by his submitted interpretation which she rejected in a meticulous and detailed judgment. I share her view. The defence of justification failed.

34. The perimeter for reviewing as cogent an analysis as that made by the judge is narrow. In a judgment delivered by Neill LJ on 26 October 1989 in Hartt v. Newspaper Publishing plc & Others (unreported), with which the other Lord Justices of Appeal agreed, the Lord Justice sounded this warning:

"It is common ground that as the hearing was by a judge alone it is open to this court to review his finding on the ordinary principles on which this court can reconsider a finding of fact by a judge sitting alone. Mr Kentridge adds - and, if I may say so, I think quite rightly - that nevertheless we should be slow to interfere with the judge's ruling and should have regard to what Lord Justice Salmon said in the case of Slim v. Daily Telegraph Ltd [1968] 2 QB 157, [1968] 1 All ER 497, 187A of the former report."

35. The usual guidance for overturning findings of fact on appeal need not be repeated. See 59/1/141, p.1005 1999 White Book, Volume 1. Of the verdict by a judge sitting alone in a defamation action, Salmon LJ said in Slim v. Daily Telegraph Ltd. supra at p.187A: "There is no sensible reason why a judge's finding of fact in a libel action should be more sacrosanct than in any other action", but "an appellate tribunal will not lightly interfere with a judge's finding where the words complained of are capable of the defamatory meaning which they have been found to bear". Para. 36.24, p.892 Gatley on Libel and Slender 9th Edn. That is virtually a direct quote from the judgment of Salmon LJ in Slim v. Daily Telegraph Ltd. supra p.186F - p.187A:

"Mr. Hirst contends that if the words of which the plaintiffs complain are capable of the defamatory meaning attributed to them, then this court has no more power to interfere with the judge's findings as to the meaning of those words than it would have had to interfere with the findings of a jury. I cannot accept this argument. It is unsupported by any direct authority, although it is lent some colour by implication from the dicta of Goddard L.J. in Hough v. London Express Newspaper Ltd. No doubt, even when a libel action has been tried by a judge alone an appellate tribunal may sometimes approach the case by considering, as a matter of law, whether the words complained of are capable of the defamatory meaning which they have been found to bear. If they are, the appellate tribunal will not lightly interfere with the judge's finding of fact. If, however, the appellate tribunal is satisfied that the judge's finding of fact is wrong, it is its duty to reverse him."

36. The words complained of in the Second Statement are clearly capable of the defamatory meaning attributed to them by the judge, and her finding cannot be, in my view, faulted.

37. IV Was justification or fair comment available as a good defence for the First Statement?

38. It is not necessary to deal with this question because the First Statement was not found to be defamatory.

39. VI Was fair comment under s. 27 Defamation Ordinance available in defence of the "sting" in the Second Statement?

40. For the reasons she gave, the judge concluded that the defendants failed to justify the libellous Second Statement. Was fair comment available to the defendants? As to the Second Statement, what was decided by the judge was that there was only one incident involving the Hong Kong Economic Times in which the plaintiffs could be said to be mentioned or involved incidentally and that that single incident was sufficient to support a defence of fair comment under s. 27 of the Defamation Ordinance.

41. For the allegation of fact in that Statement i.e. " 咁但係吓吓人地即係嘅係咁倚題提到吓你，你都話好唔滿意，話要告你 " ("But if every time other people mention about you only incidentally you then say you are not satisfied and want to sue"), the judge purported to rally support from the Hong Kong Economic Times incident. (Emphasis supplied). That was, so the judge found, the only incident capable of corroborating the allegation of fact for the defence of fair comment. The newspaper reported on 4 March 1995 that a reporter accused of fraud was, at the time of the alleged incident, an employee of Oriental Daily News. An apology was published by the Hong Kong Economic Times on 9 March 1995 correcting the time sequence to the effect that the reporter concerned only became an employee of Oriental Daily News after his unfortunate encounter. Proceedings were threatened on the complaint that it had created a misleading "negative view of the Oriental Daily News". It is evident that any involvement of an employee with fraud would reflect on the management. It cannot be said that the plaintiffs were referred to in the article incidentally or casually or by chance. The name "Oriental Daily News" was carried in the headline next to an equally sensational headline of "Suspicion of having deceived the family of the proprietor of a firm $300,000 as mediation fee of a corrupt nature". "Oriental Daily News" was repeated twice in the text. The desire to put the plaintiffs in the limelight could not be more discernible. Mr Chow, counsel for the defendants further submitted that in addition to the report of the Hong Kong Economic Times published on 4 March 1995, an article appearing in the issue of Wen Wei Po dated 17 March 1995 also referred to the plaintiffs incidentally. In that article, Oriental Daily News appeared twice in the Headlines and Oriental Daily News, Oriental Press and Oriental Press Group were quoted 7 times in the text. The article reported on a suspect distributor of Oriental Daily News extracting extra payments, and a demand was made by various sectors on The Oriental Press, Oriental Daily News and Oriental Press Group to explain. Clearly, the plaintiffs were as personally involved as they were directly referred to. The trial judge is right in excluding this episode.

42. Further, the allegation of fact in the Second Statement focused on time viz "every time" the plaintiffs threatened to sue when they were mentioned only incidentally. An isolated incident is no or no sufficient evidence of a course of conduct. Recurrence can rarely be shown by a single event. The incident on which the defendants relied as a factual statement for s. 27 was neither a casual reference to the plaintiffs nor proof of their stance. In the circumstances, there was no proper factual basis for the defendants to invoke the defence of fair comment under s. 27.

43. Mr Cheng Huan, leading counsel for the plaintiffs, was content to allow this court a free hand with respect to the Chinese version of the two Statements under consideration. Counsel was not prepared, however, to wholly disregard the agreed translation. Whatever weight the agreed translation carried and whatever the extent to which it might be engaged, what was agreed by both parties and accepted by the judge was at least that "every time" was the correct meaning of the characters " 吓吓 " in the Chinese text. It would appear that the judge gave the Chinese text parallel prominence. She did not consistently use the translated words "every time" in her judgment. She preferred the interchangeable word "whenever". At the trial, no one questioned the translated sense "every time" in the context of the Second Statement. The judge did not herself query the translation of "every time". Before us, no point was taken by counsel on any inaccurate translation. "Every time" has to be accepted in this appeal, as it was at the trial, as a meaning correctly ascribed to the two Chinese characters " 吓吓 ".

44. For fair comment under s. 27 of the Defamation Ordinance, the judge sought support solely from the Hong Kong Economic Times report for "the factual statement that whenever the (plaintiffs were) referred to, even incidentally, (they) threatened legal proceedings" (Emphasis added). In the report, the judge found "a sufficient substratum of supporting fact for the comment". The report in the Hong Kong Economic Times neither referred to the plaintiffs incidentally, nor as an isolated event could it be regarded as evidence of a persistent attitude describable by the words "every time" or "whenever". It was not open to the judge to seek factual support from the Hong Kong Economic Times' report for s. 27 of the Defamation Ordinance. Consequently, there was no material available for raising fair comment under s. 27. In my view, the judge's conclusion reached with respect to fair comment is unsustainable. The Second Statement is therefore defamatory and the defendants liable.

45. The judge would have awarded $80,000 to the 2nd plaintiff if it had succeeded. The quantum is not questioned in this court. It is difficult to suppose that the 1st plaintiff would not be ordered to share this amount with the 2nd plaintiff if the 1st plaintiff also succeeded in the case or that an extra amount would be awarded independently to the 1st plaintiff. I would award $80,000 to both plaintiffs, with liberty to the parties to apply on quantum to this court within 14 days from today.

46. The 1st plaintiff succeeds but only on one of the two Statements. However, the 1st plaintiff is victorious over the issue of identification. The 2nd plaintiff is successful only on the Second Statement. It would appear arguable that the two Statements are discrete and that costs should be separately considered. On the other hand, there is much to be said for costs to follow the event in a programme now found to be defamatory of the plaintiffs in this libel action. In my view, the proper order should be an order nisi that the plaintiffs should have half costs here and below. To the extent of the determinations made in this judgment, the judge's order be set aside. I would, therefore, allow the appeal to the same extent and order accordingly, including making the $80,000 award with liberty to apply.

Leong, J.A.:

47. I have had the advantage of reading the judgment of my Lord Liu, J.A. and I agree with the reasons and conclusions reached by him. I would also allow the appeal. I agree to the orders he proposes to make.

Yeung, J.:

48. I have had the like advantage of reading the judgment of Liu J.A. I agree with the judgments of my Lords Liu and Leong, J.J.A. and the orders they propose. For the reasons given by Liu, J.A., I, too, would allow the appeal.

Liu, J.A.:

49. This court therefore allows the appeal and makes the orders and award in the proposed terms.