TUNG LAI LAM v. ORIENTAL PRESS GROUP LTD AND ANOTHER

DCEO 5/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 5 OF 2009

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BETWEEN

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JUDGMENT

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1.  I am given to understand that this is the first disability vilification claim in Hong Kong under s. 46 of the Disability Discrimination Ordinance, Cap. 497 (“the DDO”). At least, this is the first case that has ended up with a trial in the court.

The Article in issue

2.  “The Sun” is a newspaper widely circulated in Hong Kong.  On 9 September 2006, an article with the title “醫局規劃發神經   病房逼到人都癲” (translated as “Hospital Authority’s Plan Got Insane - Crowded Wards Drive People Crazy”) was published in The Sun (“the Article”).  As the contents of the whole Article are relevant for the purpose of the claim, I need to set out the Article in full:

“醫局規劃發神經 病房逼到人都癲

          香港原來真係好多人有精神病，又有好多平時少聽嘅醫學術語漸漸平民化。譬如話「思覺失調」，十年前邊有聽過，家陣係人都識，而且似乎幾普遍添。前一排著名填詞人林夕又現身說法，話長期肚瀉未必係腸胃病咁簡單，可能係患上焦慮症，如無對症下藥，隨時令精神病惡化。

          至於籠統所稱嘅精神病，可以話係「梗有一個喺左近」。久不久就有瘋漢瘋婦大鬧呢度嗰度，玩完危站玩跳海，再唔係就斬父弒母殺子女，諗起都毛管戙。

          咁多精神病，醫管局係咪要好好處理呢？梗係要啦。而實際上九龍醫院今年七月就開咗一間九龍精神科觀察治療中心，美其名為提升精神科服務，接收伊利沙伯醫院、聯合醫院及將軍澳醫院的急性精神科病人。該中心設有四間禁閉式病房，每間病房提供四十五張病床，睇落似乎冇乜問題。

          叮！原來問題非常大！有護士踢爆，該中心一開張即滿瀉，每間病房一直超收至七十多名病人，使用率高達百分之一百五十。每間病房被迫加開近三十張帆布病床，其中走廊的八張帆布病床擺放至廁所門口，病房內作為病人飯堂的電視房，亦同樣擺滿八至十張帆布病床。

          公屋嘅擠迫戶，成日都聽聞有住客因為生活空間太狹窄而逼到人都癲，輕則口角，重則動武。卻原來，連精神病房也有擠迫戶，住客個個精神本已有問題，豈不逼到癲上加癲！

          計太一叮話齋，最癲嗰個係醫管局，規劃上簡直發神經。當年醫管局規劃九龍中醫院聯網的精神科服務時，九龍醫院除接收葵涌醫院病人外，原來只負責油麻地、尖沙咀及九龍城區的急症精神科病人，但院方管理層只顧擴展部門爭取撥款，願意兼顧九龍東人口，九龍醫院由本來僅須照顧五十萬人，突然暴升至一百四十六萬人，吖，醫管局居然照准。簡單講句，相關人等嚴重錯誤評估實際情況。

          喂，逼到爆已經夠慘，飯堂缺乏急救設備，萬一病人有乜依郁，施救會唔會倒瀉煲粥？更荒謬嘅係，院方近日「放風」，話每間病房收症人數可能達八十人，超收接近八成，發神經唔使發到咁離譜啩！

          醫管局行政總裁蘇利民乃係澳洲人，家鄉地廣人稀，袋鼠多過人，冇理由會容忍醫院出現擠迫戶，咁點解精神病房會逼到爆？太一叮諗到兩個原因，一係佢入鄉隨俗，覺得你哋地少人多嘅香港都逼到慣啦，醫病唔怕再逼一逼；一係佢近朱者赤，近瘋者癲，處理精神病問題多咗，連自己都癲埋。唉，兩個字，黐線！”

The English translation of the contents of the Article is as follows:

“Hospital Authority’s Plan Got Insane
Crowded Wards Drive People Crazy

                        Hong Kong actually has a lot of people with psychiatric illnesses, and a lot of times there are little-known medical terms that are now ordinarily used. For example ‘psychosis’, ten years ago it was never heard of, now everyone knows and apparently seems to be commonly used. Recently, the famous songwriter Lam Jik (‘Albert Leung’) has made an appearance to say that chronic diarrhoea may not be explained simply by a gastro-intenstinal infection, but may be an anxiety disorder instead. If not properly treated, the mental disorder may worsen anytime. As to psychiatric illnesses which they are generally so called, it could be said that ‘there is always one nearby’. Every now and then there is a crazy man or crazy woman wreaking havoc here and there, playing suicide by jumping off buildings or into the sea, or else they are chopping up their father, killing their mother, murdering their children; just thinking about it making one hair’s stand.

                        With so many psychiatric illnesses, shouldn’t the Hospital Authority be handling them carefully?  Of course they should, and in fact Kowloon Hospital opened up a Psychiatric Evaluation and Treatment Centre this July; putting it nicely, it’s for increasing the services to the mentally ill, receiving patients with acute psychiatric illness from Queen Elizabeth Hospital, United Hospital and Tseung Kwan O Hospital.  The Centre is equipped with four isolation wards, each room providing forty-five beds, seems like there should be no problem.

                        Damn!  There’s actually a really big problem!  Some nurses have exposed the truth, the Centre had been overflowing since it opened, every ward constantly over-admits up to seventy-something patients, raising the utility rate to 150%.  Every ward has been forced to open up to thirty extra canvas cots, eight cots in the corridors are placed in front of the lavatory doors, the television rooms in the patients’ canteen is instead situated inside patients’ rooms, which itself is crammed with eight to ten cots.

                        With overcrowded public housing, we always hear news that the cramped living space drives the occupants crazy, causing them to bicker and quarrel often, escalating to violence in more serious situations. Yet, even the psychiatric wards have overcrowded households.  As each of the inmates already has mental problems, wouldn’t the over-crowdedness add madness on top of madness!

                        In ‘Tai Yat Ding’s’ opinion, the craziest must be the Hospital Authority, simply crazy in their planning.  Back when the Hospital Authority planned for psychiatric services in the Kowloon Hospital network, other than taking in patients from Kwai Chung Hospital, they were only responsible for Yau Ma Tei, Tsim Sha Tsui and Kowloon City’s acute psychiatric illness patients, but the hospital management only cared about expanding their departments and receiving greater funding allocations, they were willing to accept the Kowloon East population too; originally Kowloon Hospital was to care for half a million people, suddenly exploded up to 1.46 million people, gee, the Hospital Authority unexpectedly allowed it.

                        Hey, it’s bad enough being crammed until bursting, the canteen lacks emergency medical facilities, what if something happens to a patient, when saving them will they spill my bowl of congee?  Even more absurdly, the hospital has recently ‘let the cat out of the bag’, that every ward may take up to eighty patients, almost eighty percent in overcapacity, even if you’re crazy you can’t be so ridiculously insane!

                        Hospital Authority Chief Executive Shane Solomon is an Australian, his homeland is spacious and sparsely populated, with more kangaroos than people, no way would he tolerate such overcrowding in a hospital.  So why are the psychiatric wards crammed full to bursting?  Tai Yat Ding could think of two reasons, one is ‘When in Rome, do as Romans do’, he thinks that you guys in Hong Kong have sparse land and a large population so you should already be accustomed to the cramped conditions, there’s no harm in cramping it up a bit when treating illnesses; or else, as people ‘would be stained red by staying near red dye’, he had rubbed off madness by being near the mad.  He might have become crazy as a result of handling an increasing number of issues relating to mental illness.  (Sigh), two words:  crazy!”

The nature of the Plaintiff’s claim

3.  The Plaintiff is a mental patient who was diagnosed to have suffered from mixed anxiety and depressive disorder in 1999. He was admitted to hospitals for in-patient treatments for 6 times from 2002 to 2006.  Since the last discharge from hospital in 2006, the Plaintiff has been receiving regular follow-up treatments for delusional disorder and recurrent depressive disorder.  He is still suffering from the said disability.  There is no dispute that the Plaintiff is a person with a disability within the meaning of the DDO.

4.  Some time in 2007, he read the Article in the Sun.  He felt insulted, angered and distressed by the contents of the Article. With the legal assistance provided by the Equal Opportunities Commission, he commenced the present action of disability vilification under s. 46 of the DDO against the 1^st Defendant, which is a public listed company which owns The Sun though its subsidiary company, and the 2^nd Defendant, which is the registered proprietor, publisher and printer of The Sun under the Registration of Local Newspapers Ordinance, Cap. 268 (“the RLNO”).

5.  In this action, the Plaintiff claims that the following 3 statements in the Article (“the 3 Statements”) constitute disability vilification against persons with mental illness including himself:

(i)   “至於籠統所稱嘅精神病，可以話係「梗有一個喺左近」。久不久就有瘋漢瘋婦大鬧呢度嗰度，玩完危站玩跳海，再唔係就斬父弒母殺子女，諗起都毛管戙。”  (“the 1^st Statement”)

(As to psychiatric illnesses which they are generally so called, it could be said that “there is always one nearby”.  Every now and then there is a crazy man or crazy woman wreaking havoc here and there, playing suicide by jumping off buildings or into the sea, or else they are chopping up their father, killing their mother, murdering their children; just thinking about it making one hair’s stand.)

(ii) “卻原來，連精神病房也有擠迫戶，住客個個精神本已有問題，豈不逼到癲上加癲！” (“the 2^nd Statement”)

( Yet, even the psychiatric wards have overcrowded households. As each of the inmates already has mental problems, wouldn’t the over-crowdedness add madness on top of madness!)

(iii) “一係佢近朱者赤，近瘋者癲，處理精神病問題多咗，連自己都癲埋。唉，兩個字，黐線！” (“the 3^rd Statement”)

(Or else, as people “would be stained red by staying near red dye”, he had rubbed off madness by being near the mad. He might have become crazy as a result of handling an increasing number of issues relating to mental illness. (Sigh), two words: crazy!)

6.  According to the Plaintiff, the 1^st Statement depicts a false and exaggerated picture of persons with mental illness.  It tends to give an ordinary reader the impression that mental patients are violent lunatics who would injure or kill other people at will, and thus stimulates in the reader fear or hatred towards persons with mental illness or heightens those feelings.  As to the 2^nd Statement, the Plaintiff says that the word “癲” (madness) and the phrase “癲上加癲” (add madness on top of madness) are insulting descriptions of mental patients.  Reading in conjunction with the 1^st Statement, the 2^nd Statement encourages a contemptuous and degrading opinion towards persons with mental illness.  Finally, the 3^rd Statement, which is the concluding sentence of the Article, tends to give an ordinary reader the incorrect impression that mental illness is infectious.  It dissimulates the message that persons with mental illness can adversely affect people around them by turning them insane.  The 3^rd Statement also has the effect of stimulating in the reader fear and hatred towards mental patients.  Overall, the Plaintiff claims that the 3 Statements depict a seriously degrading impression of mental patients, and have the effect of encouraging or enhancing the public’s misunderstanding, hatred and exclusion of persons with mental illness.

7.  According to Mr. Grossman SC, counsel for the Plaintiff, the Plaintiff is claiming the sums of $100,000 and $50,000 as damages for injury to feelings and aggravated damages respectively as a result of the alleged disability vilification on the part of the Defendants.

The law

(i)      The statutory provision

8.  As this is the first case of its kind in Hong Kong, I would try to set out the legal principles relating to disability vilification claim in some details.  First, s. 46 of the DDO reads as follows:

“(1)   It is unlawful for a person, by any activity in public, to incite hatred towards, serious contempt for, or severe ridicule of, another person with a disability or members of a class of persons with a disability.

(1A)   For the purposes of subsection (1), it is immaterial whether a person is actually incited, by an activity, to –

(a)  hatred towards;

(b)  serious contempt for; or

(c)  severe ridicule of,

another person with a disability or members of a class of persons with a disability.

(2)   Nothing in this section renders unlawful-

(a) a fair report of an activity in public;

(b) an activity in public that-

(i) is a communication or the distribution or dissemination of any matter; and

(ii) consists of a publication which is subject to a defence of absolute privilege in proceedings for defamation; or

(c) an activity in public done reasonably and in good faith, for academic, artistic, scientific or research purposes in the public interest, including discussions about and expositions of any matter.

(3)   In this section and section 47, ‘activity in public’ (公開活動) includes-

(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, screening and playing of tapes or other recorded material;

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia;

(c) the distribution or dissemination of any matter to the public.”

9.  It would be useful to look at an overview of the development of the vilification legislations in other jurisdictions as contained in paras. 46.01 and 46.02 of The Annotated Ordinances of Hong Kong – Disability Discrimination Ordinance (Cap 487):

“[46.01] England

[S. 46 of the DDO] does not have an equivalent in English legislation.  The concept of disability vilification or inciting hatred on disability has not been introduced in the English jurisdiction.

[46.02] General note

The term ‘vilification’ has not been widely used on grounds of disability.  ‘Vilification’ is mostly used in racial discrimination.

Article 20 of the International Covenant of Civil and Political Rights (ICCPR) refers to ‘advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.’  Article 4 of the International Covenant on the Elimination of All Forms of Racial Discrimination (New York, 7 March 1966) requires contracting parties to prohibit ‘dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin’.  Neither of these provisions uses the term ‘vilification’, but that word is often used to refer to the conduct they describe.

Only one of the states in Australia, Tasmania, enacts the law on disability vilification. In New South Wales, the part of the Anti-Discrimination Act relating to disability discrimination includes no provision relating to vilification on the ground of disability, but there are provisions prohibiting on the ground of HIV/AIDS infection.

Although the concept of disability vilification has been used in Tasmania, the word ‘vilification’ has not been used in the relevant provision.  Section 19 of the Anti-Discrimination Act 1998 (Tas) provides that it is unlawful to incite hatred, by a public act, on the ground of disability.

In this regard, Hong Kong is the only jurisdiction to use the words ‘disability vilification’.  There are not any decided cases on this issue both in Hong Kong and in those which introduce the concept of ‘inciting hatred’ or ‘vilification’ on the grounds of disability since their enactment.”

Hence, despite the lack of the development of case law, Hong Kong can be regarded as a pioneer in the law on disability vilification.

10.  Despite that there is no statutory provision on disability vilification in the state of New South Wales (“NSW”) in Australia, such jurisdiction has well developed jurisprudence relating to other kinds of vilification.  Hence, for the purpose of construing the meaning of our s. 46, I will focus on the statutory provisions and the case law in NSW.

11.  After reading the relevant statutory provisions, one can immediately notice the similarities between s. 46 of the DDO and  s. 20C(1) of the NSW’s Anti-Discrimination Act 1977 (“the ADA 1977”), the latter of which reads as follows:

“It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.”

12.  S. 20C(1) of the ADA 1977 deals with racial vilification.  There are also similar provisions relating to transgender vilification (s. 38S), homosexual vilification (s. 49ZT) and HIV/AIDS vilification (s. 49ZXB) in other parts of the ADA 1977.  Although the statutory provisions in NSW are related to other kinds of vilification, there is no reason why the case law relating to these provisions is not applicable for the purpose of construing the meaning of our s. 46.

(ii)     Elements of vilification

13.  According to the case law in NSW and the plain meaning of s. 46, there are 3 elements of the statutory tort of disability vilification: the plaintiff must be able to prove that the defendant committed: (i) a public activity; (ii) which incites; and (iii) hatred towards, serious contempt for, or severe ridicule of, another person with a disability or members of a class of persons with a disability (Burns v Dye [2002] NSWADT 32 at paragraph 14).

14.  At the commencement of the trial, Ms. Tam SC, counsel for the Defendants, concedes that the publication of the Article in the Sun constituted a public activity, and so I do not propose to deal with such element in the judgment.

(iii)    The meaning of “incite”

15.  According to the case law in NSW, the word “incite” is to be given its ordinary natural meaning which is to “urge, spur on, stir up, animate, prompt, or to stimulate action”.  It is not unlawful if the words merely convey hatred or express serious contempt or severe ridicule.  There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others (Burns v Dye, supra., at paras. 19 and 20, Veloskey v Karagiannakis [2002] NSWADTAP 18 at para. 21,  Burns v Radio 2 UE Sydney Pty Ltd [2004] NSWADT 267 at paras. 32 & 33, Trad v Jones [2009] NSWADT 318 at para. 161).

16.  It is well established that the conduct of incitement in this context is to be judged objectively.  The court is concerned with the likely effect as opposed to the actual effect of the alleged conduct of incitement.  What is significant is the capacity of the conduct to stir up hatred, serious contempt or severe ridicule; not whether it did, or was intended to.  It follows that proof of intention on the part of the defendant is not necessary, nor is the fact that a person or persons were actually incited by the public activity to respond in a requisite manner (Western Aboriginal Legal Service Ltd v Jones [2000] NSWADT 102 at para. 93, Burns v Dye, supra., at para. 21, Veloskey v Karagiannakis, supra., at paras. 24 & 25, Burns v Radio 2 UE Sydney Pty Ltd, supra., at paras, 12 & 13).

17.  In deciding who must be incited for the purpose of the tort of vilification, the concept of the “ordinary reasonable person” in the law of defamation is borrowed for the purpose of applying the aforesaid objective test.  According to the established case law, such a person is not immune from susceptibility to incitement nor holding prejudiced views.  He or she is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal.  He or she does not live in an ivory tower but can and does read between the lines in the light of his general knowledge and experience of worldly affairs.  He or she is described as being representative of “a substantial and respectable group of the community” (Western Aboriginal Legal Service Ltd v Jones, supra., at paras. 95-99, Burns v Dye, supra., at para. 22, Veloskey v Karagiannakis, supra., at para. 26).

18.  The court then has to ask the question: could the ordinary reasonable reader understand from the statements that he or she is being incited to hatred towards or serious contempt for, or severe ridicule of a person or persons on ground of disability?  The question is not whether the ordinary reasonable person could reach such a conclusion after his or her own beliefs have been brought into play by the public activity (Veloskey v Karagiannakis, ibid., at para. 28, Burns v Dye, supra., at para. 22, John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 at para. 16, Collier v Sunol [2005] NSWADT 261 at para. 42).  Hence, the test requires the purpose and the intent of the statements to be understood and appreciated objectively by the ordinary reasonable person, despite the fact that the subjective intention of the maker of the statements being irrelevant.

(iv)     The meanings of “hatred”, “serious contempt” and “severe ridicule”

19.  As to the meanings of the words “hatred”, “serious contempt” and “severe ridicule”, the case law is also rather settled.  Firstly, the words “hatred”, “contempt” and “ridicule” are to be given their ordinary dictionary meanings, but the latter two are qualified by the adjectives “serious” and “severe” respectively.  The use of these adjectives calls for an evaluative judgment on the part of the tribunal of fact, within a broad discretion (Veloskey v Karagiannakis, supra., at para. 29).

20.  “Hatred” means intense dislike; detestation, a feeling of hostility or strong aversion towards a person or thing; and active and violent dislike (Kazak v John Fairfax Publications Ltd, supra., at para. 40, Western Aboriginal Legal Service Ltd v Jones, supra., at para. 100, Burns v Dye, supra., at para. 23).  Mr. Grossman concedes that the Plaintiff is not relying on the allegation that the 3 Statements would have the effect of inciting the public to have hatred towards mental patients.  He would therefore focus on the latter two of “serious contempt” and “severe ridicule”.

21.  “Serious” means important, grave or weighty.  “Contempt” means the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account; the feeling with which one regards anything considered mean, vile or worthless (Kazak v John Fairfax Publications Ltd, supra., at para. 40, Western Aboriginal Legal Service Ltd v Jones, supra., at para. 100, Burns v Dye, supra., at para. 23).

22.  “Severe” means rigorous, strict, harsh or extreme.  “Ridicule” means subject to ridicule or mockery; make fun of, deride, laugh at; or words or actions intended to excite contemptuous laughter at a person or thing.  “Severe ridicule” means harsh or extreme mockery or derision (Kazak v John Fairfax Publications Ltd, supra., at para. 40, Western Aboriginal Legal Service Ltd v Jones, supra., at para. 100, Burns v Dye, supra., at para. 23, Burns v Radio 2 UE Sydney Pty Ltd, supra., at para. 42).

(v)      The relevance of the content, style and context of the public activity

23.  In the case that the public activity complained of is the publication of certain statements, then the contents of the statements, the style of communication and their context, including the social and historical context, are relevant in determining whether the statements incite hatred, serious contempt or severe ridicule (Kazak v John Fairfax Publications Ltd, supra., at para. 71).

24.  The context of the communication must also be considered.  In determining whether conduct by a person has the relevantly inflammatory tendency, the circumstances in which the conduct took place are as important as what was said or done (Trad v Jones, supra., at para. 161).  In the case of the publication of an alleged offending article, 3 kinds of contexts have been identified as being relevant (Kazak v John Fairfax Publications Ltd, supra., at paras. 45 & 46):

(i)   the context of the particular words or phrases complained of in the article as a whole;

(ii)   the context of the article in the publication in which it appears; and

(iii)  the broad social context.

25.  In determining the effect of the statements on an ordinary reasonable person, the publication must be taken as a whole, not the offending passage isolated from the rest.  Those statements made in the same piece of message should be read in conjunction with one another (Western Aboriginal Legal Service Ltd v Jones, supra., at para. 101, Burns v Radio 2 UE Sydney Pty Ltd, supra., at para. 34, Collier v Sunol, supra., at paras. 43-45).

26.  A complainant’s evidence on how the audience was affected is not relevant.  His or her evidence on how the statements have affected him or her is also irrelevant save as the question of remedy in appropriate cases, where the legislation so provides (Burns v Radio 2 UE Sydney Pty Ltd, supra., at para. 47).

Application of the legal principles

(i)      Background of the publication of the Article

27.  There is no disagreement between the parties about the legal principles mentioned above, but they diverge on the application of these principles.

28.  After reading the Article, my first impression is that it contains a very satirical criticism against the Hospital Authority in Hong Kong (“the HA”), in particular its then Chief Executive Mr. Solomon, about the policy of the allocation of resources for the treatment of mental patients in public hospitals.  By reason of the insufficient resources, the Article blamed the HA for the escalation of the problems relating to persons with mental illness.  As I see it, the Article was not targeted towards people with mental illness.

29.  At the trial, Mr. Wong Yeung Kit, the Deputy Controller of the Chief Writers’ Office of The Sun and The Oriental Daily News, testifies on behalf of the Defendants.  Although his subjective understanding of the meaning of the Article is quite irrelevant, his evidence about the background and the context in which the Article was published is highly material for the court to consider the following question: having regard to the content, style of communication and relevant context of the 3 Statements, whether the ordinary reader would have understood that he or she is being incited to hate, or to have serious contempt for or severe ridicule of, any person or persons with mental illness.

30.  The Article was published in a column titled “太一叮” (Tai Yat Ding)(“the Column”) in The Sun.  It was a column devoted to commentary on current affairs and social issues.  According to Mr. Wong, the articles were often published in the Column with sharp criticism of government policies and government bodies, and on many occasions the subject of the criticism was the HA.

31.  Mr. Wong also testifies that the style of the language commonly used in the Column was one of satirical commentary of current affairs.  The writer’s opinion on the subject current social phenomenon was expressed in fiery, sarcastic and humorous language to achieve the effect of ventilating dissatisfaction and strong criticism on various social issues, government policies and government bodies in a light-hearted manner from the point of view of an ordinary member of the public.  A colloquial style of language was employed to identify with the sentiment of the readers and to bring the publication closer to its readers.

32.   Reading the Article as a whole, I agree with Ms. Tam that the writer was trying to make the following points in the Article:

(i)   there are many people in Hong Kong with mental illness, as shown in some hair-raising incidents widely reported from time to time;

(ii)   these mental patients need medical attention, short of which their conditions would deteriorate;

(iii)   however, the hospital spaces provided by the HA are far from sufficient;

(iv)   the over-crowdedness in hospital wards provided for mental patients has reached an alarming level; and

(v)   this reflects a gross incompetence on the part of the management of the HA in terms of its assessment of the extent of the need for such kind of services, and its judgment and planning.

33.  The Article also has to be read in the broad social context.  Firstly, according to Mr. Wong, prior to or around the publication of the Article, there were from time to time news reports from local press about incidents involving acts of physical violence, suicide or murder committed by persons suffering or suspected to be suffering from mental illness.  Not only incidents happened in Hong Kong were reported but also incidents happened in the Mainland and Taiwan.  Secondly, around the time of the publication of the Article, it was also revealed by the local press and became widely known to members of the public that due to the ill-conceived planning and misallocation of resources on the part of the HA, the psychiatric wards of Kowloon Hospital were extremely crowded with the utility rate hitting 150% of their capacity and that some mental patients had to sleep outside the wards on canvas beds placed along the corridors.  Even before that, news articles had been published by the local press reporting on the lack or shortage of medical treatments offered to those patients suffering from mental illness.

34.  Mr. Wong has produced numerous newspaper articles to substantiate his evidence about the broad social context.  Based on such material, I accept that members of the public, at the time of the publication of the Article, were generally aware of the numerous violent incidents involving mental patients, and there were social issue and concern as to whether the HA had devoted sufficient resources for the treatment of mental patients.

35.  By reason of such concern, there was a news article on page A1 of the Main News Section of the 9 September 2006 issue of The Sun with the title “走廊到廁所擺滿帆布床 九龍醫院逼爆 病人瞓飯堂” (Corridors Lined with Canvas Beds Extending to Toilets – Kowloon Hospital Overcrowding – Patients Sleep in Canteen) (“the News Reports”).  The following facts were revealed in the News Report:

(i)   there was over-crowdedness (150% of its capacity in Kowloon Hospital), under-staffing and lack of basic facilities and resources in the psychiatric wards of public hospitals;

(ii)   mental patients had suffered considerably by reason of the above conditions;

(iii)   the aforesaid negative conditions had aggravated the mental conditions of these patients; and

(iv)   the underlying causes of the problems were the under-estimation of the need of the service, and the ill-conceived policy in placing patients in over-crowded hospital wards without allocating additional recourses to cope with the increasing number of patients. 

36.  Obviously, the Article was published in the Column as a commentary corresponding to the News Report.

37.  In my judgment, taking into account the contents of the Article, the style of communication commonly used in the Column and the background and the relevant context of the publication of the Article, an ordinary reasonable reader would have understood that the commentary in the Article was written in response to the facts of great public concern in the News Report.  He or she would have read the 3 Statements in the context of the Article and would have understood the content as neither targeting nor ridiculing persons with mental illness, but to ventilate dissatisfaction, anger and criticism on the problems engendered by what the writer perceived as incompetence and poor judgment on the part of the HA, with a underlying sympathy for the plight of mental patients in Hong Kong.

(ii)    The effect of the 3 Statements

38.  In support of the claim, Mr. Grossman submits that the 1^st Statement depicts most, if not all, people with mental illness in a global sense as being mad, disturbed, crazy, violent and generally a dangerous class of person.  This is not true and the 1^st Statement is therefore calculated and deliberately inflammatory to vilify people with mental illness.  On the other hand, the 2^nd Statement is clearly capable of leading ordinary reasonable person to hate or to be fearful of people with mental illness.  By publishing this statement, in particular the use of the distasteful and derogatory label “癲” (mad), the Defendants were making fun of people with mental illness and were inciting the readers to laugh at them.  Finally, the 3^rd Statement conveys a meaning that those who associate with people with mental illness may well be affected by such illness.  Further, when read in conjunction with the 1^st Statement, the 3^rd Statement conveys an additional meaning that those associate with people with mental illness may therefore, as a consequence, behave in evil and wicked ways as described in the 1^st Statement.

39.  Mr. Grossman further says that the Article is capable of adversely affecting an ordinary reasonable person to think that people with mental illness are worthless and vile, with the effect of destroying their personal autonomy and inherent dignity.  This amounts to serious contempt for those with mental illness.  Insofar as the Defendants’ contention that the Article was written in a humorous style to criticise the HA and it’s then Chief Executive, Mr. Grossman says that this argument is only a camouflage under which an unlawful purpose, namely disability vilification, was promoted. It is simply not humorous to jeer at incapacitated people. In a nutshell, Mr Grossman submits that the distasteful Article is vulgar and demeaning, and insofar as it is meant to be humorous, it does no more than jeer and poke fun at those unfortunate enough to be incapacitated by a mental illness.

40.  With the greatest respect, Mr. Grossman has exaggerated the effect of the Article and the 3 Statements contained therein. As I have mentioned above, one must look at the contents of the Article, the style of communication and its context, including the social and historical context, in determining whether the 3 Statements contained therein would have the capacity to incite an ordinary reasonable reader to have hatred towards, serious contempt for or severe ridicule of persons with mental illness.

41.  In the 1^st Statement, it was mentioned that mental illness is much more common nowadays and there would be lot of mental patients who are in need of medical care in Hong Kong.  It also referred to a number of hair-raising incidents involving violence by persons with mental illness.  However, ordinary reasonable readers would have been aware of these incidents by the reports in various news media.  Rightly or wrongly, they might have certain views about these incidents, and I have grave doubt whether the 1^st Statement would heighten whatever negative feelings it might have in these readers about people with mental illness.  As I have mentioned above, the main theme of the Article was a satirical criticism of the HA in respect of its policy in allocating resources for treating mental patients.  The underlying object of the Article was to urge the HA to devote more resources for the treatment of mental patients in public hospitals. Mental patients were not the main targets in the Article, and so I do not accept that the 1^st Statement would have the effect as contended for by Mr. Grossman, at least not to a significant extent.

42.  The 2^nd Statement referred to the over-crowdedness in the psychiatric wards in public hospitals.  It advances the point that such alarming environment for mental patients would be double jeopardy to them and could only worsen their conditions, hence the words “癲上加癲” (add madness on top of madness).

43.  For the 3^rd Statement, as admitted by the Plaintiff in his own evidence, no one would seriously believe that mental illness is a contagious illness and that Mr. Solomon had contracted mental illness because he was closely involved in the administration of the HA.  I agree with Ms. Tam that the 3^rd Statement, being the concluding statement in the Article, only summarises the fiery criticism, which characterises the style of the Column, directed solely at the Chief Executive of the HA.

44.  The 3^rd Statement also has to be read in the context of the whole Article.  The first attempt of an “explanation” for Mr. Solomon’s unsatisfactory policies sets the tone: it is not to be taken seriously.  The writer conjectured light-heartedly that it could be that Mr. Solomon, having come from Australia where there are more kangaroos than people, took the view that Hong Kong people were used to extremely crowded conditions. Hospital inmates would therefore not be affected by over-crowded conditions. The second attempted explanation, equally light-hearted, plays on the double meaning of the word “癲” (mad), which is equivalent to “瘋” (crazy), and loosely borrows from the Chinese idiom of “近朱者赤，近墨者黑” (literally translated as “one would be stained red by staying near red dye, and stained black near black ink”).  As I see it, this idiom would mean to an ordinary reasonable Chinese reader that “one’s morals and conduct would be influenced by one’s friends”.  It is then used satirically, in a literarily incorrect way, to string together with the phrase “近瘋者癲” (literally meaning “one who stays near the insane would become insane”).

45.  Taking into account such background, I accept that an ordinary reasonable reader would understand that the statement is meant as a mockery of the incompetence of the Chief Executive of the HA alone.  Despite the satirical use of the Chinese idiom, no reasonable suggestion could have arisen that Mr. Solomon could have contracted or “rubbed off’ mental illness from mental patients he had to handle administratively as the illness is somehow contagious.  The final sentence, in which the writer called Mr. Solomon “黐線” (crazy), which is an equivalent of “瘋” (crazy) in colloquial Cantonese, would have been understood by the ordinary reasonable reader as the writer’s indictment of him for his gross lack of judgment, and not targeting nor ridiculing persons with mental illness.

(iii)    The use of derogatory labels and distasteful words

46.  In this regard, I must agree that the use of certain words in the Article is distasteful.  Certain derogatory labels and words were used to describe people with mental illness and to comment on the problem of over-crowdedness in public hospitals, in particular the use of the words “癲” (mad), “瘋” (crazy), “癲上加癲” (add madness on top of madness), “近瘋者癲” (one who stays near the insane would become insane) and “黐線” (crazy).  It is not too difficult to understand why the Plaintiff was so upset by the contents of the Article. Despite that the subjective feeling of the Plaintiff is not particularly relevant in determining whether the Defendants’ conduct was to amount to disability vilification, it showed that the writer of the Article was insensitive to the feelings of people with mental illness.  Even Ms. Tam does not seek to argue otherwise.  While I myself condemn the use of such words, having taken into account all the circumstances of the case, I nevertheless have some reservation whether the distasteful Article was capable of inciting hatred towards, or serious contempt for, or severe ridicule of people with mental illness.

47.   Since the word “incite” is used in s. 46 and the words “contempt” and “ridicule” are qualified by the adjectives “serious” and “severe” respectively, there is a threshold for the tort of disability vilification.  In this regard, the case law in NSW provides some assistance as to how the court should draw the difficult line for the purpose of characterising conduct as vilification.  In the cases referred below, despite the use of offending words in the public activities, the New South Wales Administrative Decisions Board (“NSWADT”) dismissed the relevant vilification complaints.

48.  In Burns v Dye, supra., the applicant Mr. Burns made complaints of homosexual vilification against the respondent Mr. Dye.  One of the complaints was that Mr. Dye had on various occasions called him offensive names in front of the neighbours or in some public places like supermarket.  The offensive names were derisory terms used for homosexual males.   Mr. Dye was usually drunk on these occasions.  While the NSWADT accepted that Mr. Dye’s language and behaviour were not only highly offensive but also an unwelcome and threatening intrusion into Mr. Burn’s life, it was not comfortably satisfied that the offending abuse constituted homosexual vilification.  According to the Tribunal, it had to take into account the circumstances in which the abuse occurred, including the context in which the abuse occurred, the tone of the voice used by the alleged vilifier and the observable relationship between the vilifier and his or her victim.  In the opinion of the Tribunal, a section of the community would have dismissed Mr. Dye’s conduct as the rantings of a drunken, possibly mentally-ill individual, and so the Tribunal was not comfortably satisfied that the abuse would have incited the feelings of hatred and serious contempt in third parties.  The Tribunal, nevertheless, upheld some other complaints of Mr. Burns.

49.  Another example is the case of Veloskey v Karagiannakis, supra.  In this case, the complainants identified themselves as the descendants of an Aegean Macedonian population.  They complained that the newspaper article written by the respondent had incited hatred towards, serious contempt for, or severe ridicule of Aegean Macedonians on the ground of their race.  Whilst the NSWADT found that the language in the article overall was pejorative and strident, in parts derisory, and the article as a whole expressed hostility towards, contempt for and ridicule of those who identified themselves as Macedonian, the Tribunal was not persuaded to the requisite standard that the contempt and ridicule warranted the description of “serious” or “severe”.  In the opinion of the Tribunal, the ordinary reader, unaffected by ethnical prejudices, would be more likely to treat the article as a political harangue.

50.  The qualification of the words “serious” and “severe” had also been discussed in the decision of the NSWADT in Burns v Radio 2UE Sydney Pty Ltd, supra.  In this case, the same Mr. Burns complained that there was homosexual vilification in a television programme, and so he lodged a complaint against the television station and the two presenters of the programme.

51.  In deciding the meaning of the words “severe ridicule”, the NSWADT referred to the debates in the legislature during the passing of the statute.  By that time, there was a concern that the ambit of the provision was too wide.  In reply, the Attorney General of NSW said “[it was] not the intention of the Government to cover matters of a trivial nature”, and he dismissed suggestions that the vilification laws would “stop the telling of Irish or Hungarian jokes” (see para. 38 of the decision).  I can only assume that the legislature in Hong Kong, being the only few jurisdictions which enacted laws on disability vilification, was also intending s. 46 to cover only the more serious cases.

52.  The NSWADT then went on to say the following:

“39.    It is clear from the debates in relation to both the racial vilification and homosexual vilification provisions that the Parliament was concerned to ‘achieve a balance between the right to free speech and the right to an existence free from … vilification and its attendant harm” (Hansard Legislative Assembly, 10 May 1989, p7489-90; and see McNamara L, Regulating Racism Sydney Institute of Criminology, 2002, at 127-130).  We must have that consideration in mind when deciding where the line is to be drawn for purposes of characterising conduct as vilification.

40.    We consider the ordinary meaning of the term ‘severe ridicule’ having regard to the guidance given by the parliamentary debates, by common dictionary definitions (see eg Burns v Dye; John Fairfax Publications Limited v Kazak), and by our own understanding of the ordinary meaning of the words.  A distinction can be drawn between ‘mild ridicule, mere mockery or derision’, and ‘harsh or extreme mockery derision” (see eg Burns v Dye at [23]).  The Appeal Panel in Voloskey & Anor v Karagiannis & Ors. At [29] said that ‘severe ridicule’ equates with ‘extreme derision”.  But while these views refine the meaning of ‘severe ridicule’ by describing different degrees of severity, they do not greatly assist in being able to say when conduct has crossed the ‘severe ridicule’ line.

41.    Qualifiers such as ‘mild’ and ‘harsh’ are relative measures of degree, and cannot be understood in the abstract any more than the wrong that parliament means to address through this legislation exists in the abstract.  The parliamentary debates make clear that that wrong is the causing of, at worst, physical harm, and, at least, offence and distress, to people on the ground of a characteristic, in this case homosexuality.  To identify ridicule that is ‘mild’ on the one hand and ‘harsh’ on the other could involve a judgment as to the possible impact of the ridicule on the type of person to whom it is directed. An indicator that conduct is ‘severe ridicule’ could therefore be an assessment that it could reasonably cause distress or offence to a person with that characteristic.  But conduct can be severe ridicule without that assessment being made.

42.    We understand ‘severe ridicule’ to be ‘harsh or extreme mockery or derision’.  As a tribunal of fact, we make an evaluative judgment within a broad discretion as to whether the conduct amounts to ‘severe ridicule’ (see Veloskey & Anor v Karagiannakis & Ors at [29]).”

53.  As I see it, the theme of the Article was so clear that it contained a satirical criticism of the policy of the HA.  As the Article was not targeted towards mental patients, it would, to a great extent, minimise the impact of the distasteful words.  In fact, the Article seemed to suggest that mental patients were in need of help and as a result more resources should be devoted for the treatment of these patients.

54.  Furthermore, I have reminded myself of the danger of reading the Article in the context of an anti-discrimination litigation.  I suppose if I ask someone to read the Article and tell him or her that this Article is the subject matter of a disability vilification claim, one can then easily pick up the distasteful words in the Article used to describe mental patients.  However, this was not what happened when the readers read the Article which was published on 9 September 2006.  When the readers read the Article, they would treat it as a commentary on social issues and affairs.  They would take into account the broad social context, the News Report in A1 section of The Sun and the style of the Column.  After reading the Article, the readers would have sensed the strong and satirical criticism against the management of the HA.  This became the main theme of the Article, and as a result it would lessen the impact of the distasteful words used in the Article about mental patients.

55.  Finally, Mr. Grossman submits that as The Sun was a widely circulated newspaper in Hong Kong, the Article would be rather influential in shaping the public opinion.  However, I am of the view that such argument cannot take the Plaintiff’s case any further.  In my judgment, one must not lose sight of the fact that mental patients were not the targets of the Article and the contents of the Article would have been understood by ordinary reasonable readers to be a commentary to ventilate dissatisfaction, anger and criticism on the unsatisfactory policy on the part of the HA.  The opinion advocated by the Article was certainly to call for more resources to be allocated for the treatment of mental patients, and not targeting nor ridiculing persons with mental illness.

56.  By reason of the aforesaid, despite that I condemn the use of the distasteful and insensitive words in the Article, I am not comfortably satisfied that the publication of the 3 Statements would have the capacity to incite the ordinary reasonable readers to have the feelings of hatred towards, serious contempt for, or severe ridicule of persons with mental illness, or that any of the Statements has crossed the “serious contempt’ or “severe ridicule” line.  I therefore dismiss the Plaintiff’s claim of disability vilification.

Liability of the 1^st Defendant

57.  The aforesaid reasons would have been sufficient to dispose the case.  However, since the parties have devoted considerable time at the trial to deal with other related issues, I feel obliged to give my views on these issues as well.

58.  The first of these issues is that, assuming that the publication of the Article was to amount to disability vilification, whether the 1^st Defendant, being the holding company of the Oriental Press Group, should be held liable for such wrong under s. 46 of the DDO.

59.  The 2^nd Defendant is and was the registered proprietor, printer and publisher of The Sun under the RLNO.  Despite that, the Plaintiff seeks to argue that the 1^st Defendant should also be liable for the publication of the Article because it was the actual proprietor of The Sun.  So far as the evidence is concerned, the Plaintiff is relying on the following facts:

(i)   the 1^st Defendant wholly owns The Sun News (Holding) Ltd. (“SHNL”), which in turns wholly owns The Sun News Ltd. (“SNL”), which in turn wholly owns the 2^nd Defendant;

(ii)   the only director of SNHL, SNL and the 2^nd Defendant is one Mr. Lam Shun Chuen, who has been the executive director of the 1^st Defendant since October 1999 and is currently the Chief Executor Officer of the 1^st Defendant, and SNHL, SNL and the 2^nd Defendant have the same company secretary and the same address of registered office;

(iii)   the business of The Sun was extensively mentioned in the Annual Report of the 1^st Defendant, in particular the advertising revenue of The Sun and the two adjustments of the retail price of the Sun were stated to have boosted the 1^st Defendant’s overall income; and

(iv)   according to the website of the 1^st Defendant, the 1^st Defendant is described as the owner of The Sun and the copyright owner of the contents of The Sun, and The Sun is also described as the 1^st Defendant’s second daily.

60.  In the light of the above, Mr. Grossman submits that it would be to fly in the face of reality to hold that the 2^nd Defendant, a shell company with a nominee director and no asset or operational function, could be the proprietor of The Sun simply because of the fact of registration.  Further, Mr. Grossman relies on the cases of Secretary for Justice v Oriental Press Group Ltd. & Ors. [1998] 2 HKLRD 123 and Oriental Daily Publisher Ltd. & Anor. v Ming Pao Holdings & Ors. [1999] 4 HKC 354 and submits that registration as proprietor and publisher under the RLNO is not conclusive as to the true identities of the proprietor and the publisher of a newspaper, and that it is only a factor to be taken into account when the court considers all the evidence placed before it on the issue.

61.  Mr. Grossman further relies on the presumption in s. 15 of the RLNO which reads as follows:

“On the trial of the proprietor, printer, publisher or editor of any local newspaper, or the printer of any other document, for any offence in which an ingredient is the publication of matter contained in any issue of such local newspaper or in such document, the accused person shall be presumed to have published all matter contained in such issue or in such document, as the case may be, unless he proves that the publication was made without his authority, consent or knowledge, and that the publication did not arise from want of the due care or caution on his part.”

62.  However, one must first understand the nature of a vilification claim under the DDO.  According to s. 72(1), the nature of a cause of  action under the DDO is one of tort. Since both Defendants are alleged to be the primary tortfeasors in the pleading, in order to make the 1^st Defendant liable, the Plaintiff has to show that the 1^st Defendant took part in an activity in public which had incited hatred towards, serious contempt for, or severe ridicule of persons with disability.

63.  In this regard, Mr. Lai Kam Wa Kenneth, the Assistant to the Chairman of the 1^st Defendant, confirms at the trial that the 1^st Defendant was not involved in the publication of the Article.  Further, Mr. Wong, the said Deputy Controller of the Chief Writers’ Office of The Sun and The Oriental Daily News, confirms in his testimony that he did not need to report to the 1^st Defendant in respect of the materials published in the Sun.  In such circumstances, there is simply no evidence to support that the 1^st Defendant was involved in the publication of the Article.

64.  The Plaintiff seeks to make good his case by demonstrating that the 1^st Defendant was the ultimate parent company of the 2^nd Defendant and that part of the profit made by the 2^nd Defendant was channelled up to the 1^st Defendant.  However, the 1^st and the 2^nd Defendants were still two separate entities in law.  There is no evidence before the court about the actual operation of the Sun, for example, whether the 2^nd Defendant had kept a separate financial account of the business of the Sun.  In such circumstances, the fact that the 1^st Defendant was the ultimate indirect owner of The Sun is, without more, insufficient to show that the 1^st Defendant was directly involved in the publication of the Article.  That was the reason why Chu J, in Apple Daily Ltd. v Oriental Press Group Ltd. & Ors., unreported, HCA 1396/2009 & HCA481/2009 (decision on 30 November 2010), dismissed the alleged infringement of copyright claim against the parent company of the Oriental Press Group for the alleged infringement committed by the “on-line” publication of the Group.

65.  Further, the two cases relied upon by Mr. Grossman cannot assist the Plaintiff’s case.  The court in Secretary for Justice v The Oriental Press Group Ltd. had to deal with a case of criminal contempt in respect of certain articles published in a newspaper.  Under the common law, the proprietor of a newspaper is responsible for the contempt of court committed by the publication in its newspaper, and so the court had to ascertain the identity of the real proprietor for the liability under the contempt.  On the other hand, the court in Oriental Daily Publisher Ltd. v Ming Pao Holdings Ltd. had to ascertain the proper plaintiff for the purpose of a defamation claim.   In such case, the subsidiary company might not be the party being defamed in the context of that particular claim.

66.  Neither can the Plaintiff rely on the presumption contained in s. 15 of the RLNO.  The said provision clearly states that the presumption only applies to the trial of the proprietor for an “offence”, and “offence” is defined in the Interpretation and General Clauses Ordinance, Cap. 1 to include “any crime and any contravention or other breach of, or failure to comply with, any provision of any law, for which a penalty is provided”. The remedies provided under the DDO are not “penalties”, and so the presumption does not apply to a civil action like the present one.

67.  By reason of the aforesaid, even if the Plaintiff can establish a case of disability vilification, the 1^st Defendant would not be liable for such wrong committed by the 2^nd Defendant.

Statutory defences under the DDO

68.  In the Defence filed by the Defendants, it is contended that the 2^nd Statement was a fair report of the overcrowding problem in the psychiatric wards in public hospitals and a fair comment of its consequences or potential consequences, and that the 3^rd Statement was a fair criticism of the management of the HA in relation to its planning for the provision of facilities and services for mental patients.  By raising such averments, it is not certain whether the Defendants are relying on the statutory defences in s. 46(2) of the DDO.  However, Ms. Tam does not seek to pursue such defences at the trial.

69.  On the other hand, the Defendants rely on the statutory defence under s. 50(b) of the DDO.  S. 50 reads as follows:

“Nothing in Part III, IV or V shall render unlawful an act that is reasonably intended to –

 … … …

(b)   afford persons with a disability or a particular disability, goods or access to services, facilities or opportunities to meet their special needs in relation to –

(i)   employment, education, clubs or sports;

(ii)   the provision of premises, goods, services or facilities; or

(iii)   their capacity to live independently; … … …”

70.  According to Mr. Wong, the said Deputy Controller of the Chief Writers’ Office, the central message and the underlying purpose of the Article was to criticise the HA and its Chief Executive for their ill-conceived planning and their failure to provide sufficient facilities and satisfactory services for the treatment of mental patients.  In such circumstances, it is argued that the 3 Statements were reasonably intended by the 2^nd Defendant to afford persons suffering from mental illness access to adequate and appropriate hospital services and facilities, thereby entitling the Defendants to rely on the statutory defence in s. 50(b).

71.  It seems that there has been no legal authority, whether in Hong Kong or elsewhere, relating to such statutory defence.  Despite that, I have great reservation whether the Defendants can rely on such defence if the court were to conclude that the publication of the 3 Statements was to amount to disability vilification.

72.  If the Defendants have to rely on such statutory defence, the court has already concluded that the contents of the 3 Statements were capable of inciting ordinary readers to have serious contempt for or serious ridicule of persons with mental illness.  These Statements also amounted to harsh or extreme mockery or derision of persons with mental illness.  As it was not absolutely necessary for the Defendants to use these derogatory descriptions in order to report or comment on the problem of over-crowdedness in the psychiatric wards in public hospitals, it is very difficult for the Defendants to say that the inclusion of the 3 Statements in the Article was “reasonably” intended by the Defendants to fight for more resources for mental patients.  Hence, such defence should not be available to the Defendants.

73.  As I have mentioned above, my view on the availability of the statutory defence is purely academic.  To a certain extent, my discussion on such subject is rather unrealistic, because I do not share the view of the Plaintiff that the publication of the 3 Statements would have had such drastic effect as alleged by him.  Despite that, I also express my view on such defence so that one can have a whole picture of the issues that have been canvassed at the trial.

The appropriate package of remedies

74.  The last related issue is remedy.  The Plaintiff claims the sums of $100,000 and $50,000 as damages for injury to feelings and aggravated damages respectively.

75.  In my judgment, in the case that liability is established, it is not appropriate to award damages to the Plaintiff in the circumstances of the present case.  As I see it, it does make a difference whether the disability vilification was targeted towards an individual person or a class of persons with disability.  In the former, the court should focus on the damages suffered by an individual and try its best to assess his or her damages resulting from the vilification.  In the case of the latter, vilification was not targeted towards an individual but to a class of persons.  In such case, the effect of the vilification on an individual plaintiff would be more indirect.  Further, in extending the ambit of the vilification claim to cover a class of persons, it seems that the focus of the legislature is to try to stop such unlawful act rather to redress the loss of each individual person.  As the number of potential plaintiffs for such kind of claim can be enormous, the potential liability would far out-weight the culpability of the wrong committed by the defendant.  Hence in the circumstances of the present case, I am of the view that an apology order would be a more appropriate remedy.

76.  In this regard, I have taken note of the judgment of the Court of Final Appeal in Ma Bik Yung v Ko Chuen (2006) 9 HKCFAR 888.  According to the said case, the District Court has a wide range of remedies at its disposal in dealing with anti-discrimination claims, and it is for the court to fashion the remedies that are appropriate for the case in question.  In deciding on the remedy or the package of remedies, the court should consider the matter in the round and take a global approach.  The remedies granted should ensure respect for the legislation and its purpose.  In fashioning the remedies, the court should be prepared, where necessary, to be innovative.  At the same time, it should be flexible and pragmatic.

77.  The Court of Final Appeal also confirmed that the court has power under s. 72(4)(b) of the DDO to make an apology order against an unwilling defendant.  However, as the making of an apology order may arguably infringe the defendant’s guaranteed freedom of thought and conscience, it is only in a rare case with exceptional circumstances that the court should consider making an apology order against an unwilling defendant and when it does so, it has to proceed with great circumspection.  The court should also carefully consider the parties’ representations in this regard.  Before an apology order can be made against an unwilling defendant, s. 72(4)(b) requires the court to be satisfied that an insincere apology: (a) would redress the plaintiff’s loss and damage to some extent; and (b) is a reasonable act for the defendant to perform in the circumstances of the case.  Li CJ had also listed out the appropriate procedure for the making of an apology order, which includes the making of a provisional order with an opportunity to the parties to make submissions before the making of the final order.  In the case that the court declines to make a final apology order, the court may substantially increase the quantum of damages in order to fill the deficiency of the lack of the apology order.

78.  After considering the judgment in Ma Bik Yung, I am still of the view that an apology order would be a more appropriate remedy in the present case than an award of damages. As the 3 Statements were directed towards a class of mental patients as a whole rather than to the Plaintiff as an individual, ordering the 2^nd Defendant (as I am of the view that the 1^st Defendant should not be liable in any event) to pay damages to one particular plaintiff may not be appropriate. Further, ordering the 2^nd Defendant to apologise would also be a clear message to the community that such kind of conduct is unlawful under the DDO.  Hence, in the case that liability is established, I would not award any damages to the Plaintiff but to make a provisional apology order.  In the case that the 2^nd Defendant is still unwilling to offer an apology and the court decides to omit the same in the final order, the court will then follow the approach as laid down by the Court of Final Appeal in Ma Bik Yung and consider how to fill such deficiency in the final package of remedies.

Conclusion

79.  By reason of the aforesaid, the Plaintiff’s complaint of disability vilification is unsubstantiated and I therefore dismiss the Plaintiff’s claim.  There are special costs provisions relating to DDO claim in s. 73C(3) of the District Court Ordinance, Cap. 336.  Unless the provisos apply, the normal rule is that each party to such claim shall bear its own costs of the legal proceedings.  I therefore make an order nisi that there be no order as to costs of this action, which shall be made absolute 21 days after the date of the handing down of this judgment.

80.  Finally, I would like to express my gratitude to all the counsel for the assistance that they have rendered to this court.