CHUNG MING YU AND OTHERS v. NEXT MAGAZINE PUBLISHING LTD AND ANOTHER

HCA 785/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 785 OF 2011

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REASONS FOR DECISION

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I. INTRODUCTION

1. The trial of the present action was scheduled to commence on 8 October 2014 with 14 days reserved.  As a result of various late applications on the part of the 1^st and 2^nd defendants (“D1” and “D2”, collectively “Ds”) and my decision on those applications at the adjourned hearing for argument on 27 August 2014 (“Hearing”) (which was also the return date of the 2^nd Pre-trial Review (“PTR”)), I vacated the trial dates and reserved my reasons of decision on the Ds’ applications which I now give.  The 1^st to 12^th plaintiffs (“P1” to “P12”, collectively “Ps”) made some minor applications, and I shall also deal with them below.

2. The Ps claimed that (a) P1/P2, P3/P4, P5/P6, P7/P8, P9/P10, and P11/P12 were respectively married couples, and P3 to P8 were relatives, (b) they were all members of the Lord Jesus Christ Church (“Church”), (c) P9, P10, P11 and P12 were tenants sharing premises at San Tau Kok Village, Tai Po (“1^st Premises”), (d) P3 and P4 were occupants of premises in Fu Tin Estate, Tai Po (“2^nd Premises”), and (e) the Ps were close acquaintances who used to have bible studies at the 1^st Premises and friendly gatherings at the 2^nd Premises.

3. The present action began life on 6 May 2011 when the Ps sued D1 and D2 respectively as printer/publisher[1] and editor-in-chief of the Next Magazine (“Magazine”) for libel in respect of an article they published in the 1088^th issue of the Magazine on 13 January 2011 (“Article”).  The Article was a cover story titled “換妻邪教” with text (“Words”) and photographs (“Photos”) on the cover, contents and inside pages that the Ps claimed were defamatory of them in their natural and ordinary sense.

4. The Ds denied the Ps’ claim, and put forward various defences, including justification and fair comment.

5. To put the matter in context, I shall first set out below a brief procedural history of the present action, and then I shall go on to describe the summonses placed before me.

II.  PROCEDURAL HISTORY

6. The Statement of Claim (“SoC”) was endorsed on the Writ of Summons issued on 6 May 2011.  On 15 July 2011, the Ds filed their Defence.  On 24 September 2011, the Ps filed their Reply.

7. On 17 January 2012, the Ds filed their timetabling questionnaire confirming (a) they did not intend to amend their pleadings, (b) they intended to file/serve a List of Documents within 28 days, and (c) there would be five witnesses for the Ds at trial (ie D2, Tse Chi Ting Stephen (“Tse”), Lui Ka Hung (“Lui”), To Sin Ling (“To”) and Ngai Kam Wah “Ngai”).

8. At the hearing of the case management summons on 13 February 2012, Master KK Pang granted case management directions including timetabling directions for discovery, inspection and/or witness statements.  The parties were also directed to obtain counsel’s advice, and to take out interlocutory applications, if any, within 28 days thereafter.

9. On 16 August 2012, the Ds filed their List of Documents that made discovery and disclosed inter alia a bundle of emails between the Ps and Ngai (“Discovered Emails”).

10. On 3 October 2012, the Ds filed their listing questionnaire confirming that discovery had completed, but exchange of witness statements had not taken place as yet.

11. At the case management conference (“CMC”) on 10 October 2012, Registrar KW Lung inter alia extended time for exchange of witness statements to 7 December 2012, and directed all interlocutory applications be taken out within 14 days thereafter.  Subsequently in December 2012, the Ds exchanged witness statements as to fact with the Ps.

12. The Ps served 15 statements altogether, most of which were from the Ps themselves.  The Ds served four witness statements, three from D1’s employees Lee, To and D2, and one from Ngai.  Ngai’s witness statement appeared to be a brief pre-printed pro forma statement that merely confirmed “[the Article]內所述有關本人在真理天城教親身參與的事項或引述本人所提及的事宜, 均屬真實無誤”.

13. On 19 February 2013, the Ds filed their listing questionnaire confirming (a) their pleadings were in order and required no amendment, (b) discovery had completed, and (c) all witness statements of Lee, To, D2 and Ngai had been served.

14. At the CMC on 27 February 2013, Registrar KW Lung granted leave for the Ps (a) to serve additional witness statements by P9, P10 and Tsui Wai Kuen (“Tsui”) with liberty for the Ds to serve additional/supplemental witness statements in reply within 42 days, and (b) to set the present action down for trial within 42 days as from 10 April 2013 before a bilingual judge with a PTR before the trial judge 12 weeks before trial (“27/2/13 Order”).

15. The Ds did not serve any witness statement as to fact in reply to the Ps’ three additional witness statements.  On 18 April 2013, the Ps applied to set the present action down for trial, and subsequently the trial dates were fixed and confirmed.

16. On 3 June 2014, the Ds’ present solicitors (“Ds’ Solicitors”) filed Notice of Change of Solicitors.  The matter came before me for PTR on 30 June 2014 with 30 minutes reserved.  At such 1^st PTR, I granted case management directions for the parties to agree and/or obtain certified English translation of the Article, to agree the transcript of the audio‑recording of the interview of Ngai by D1’s staff (“Recording”), to collate a bilingual glossary of key words (“Glossary”), to revise the index of the section on documents for the trial bundle in compliance with Practice Direction 5.6, and to revise the index of the section on witness statements for the trial bundle with such witness statements collated in the order of P1 to P12 followed by the statements from additional witnesses for the Ps rather than in chronological date order.  I also adjourned the Ds’ 1^st, 2^nd and 3^rd Summonses[2] for argument to be heard together with the 2^nd PTR.  Subsequently, the hearing of such summonses and the 2^nd PTR was scheduled to be heard before me at the Hearing on 27 August 2014.

17. After the 1^st PTR, the parties obtained certified English translation of the Article (“Translation”) and agreed the transcript of the Recording (“Transcript”), but there was still disagreement over the Glossary and the index of the trial bundle.  I will return to this below.

III.  Ps’ SUMMONSES

18. On 19 June 2014, the Ps applied by summons (“Ps’ 1^st Summons”) for leave to file/serve the supplemental witness statement of P2 as per the draft attached thereto (“P2 Draft”), and for such supplemental witness statement to stand as P2’s evidence-in-chief.

19. On 19 June 2014, the Ps filed their Supplemental List of Documents (“Ps’ Supp List”) that discovered/disclosed (a) general emails and photographs of Church members, (b) general teaching materials of the Church, (c) emails sent by P1 on behalf of the Church and on his own, (d) emails concerning Henry Pong Hei Yung (“Pong”), (e) emails on “reception of Ernest Frank Mauck” (“Mauck”) and (f) documents on discussion concerning “rapture”.

20. At the 1^st PTR, Mr Lam, counsel for the Ps, applied (and I accordingly granted leave) for the Ps to withdraw the Ps’ 1^st Summons and Ps’ Supp List with costs to the Ds.

21. On 20 August 2014, the Ps applied by summons (“Ps’ 2^nd Summons”) for leave to amend the SoC in the manner marked in red as per the draft annexed thereto (“ASoC Draft”).  The purpose of the proposed amendments was to correct clerical errors and to update the quantum of P1’s claim for alleged loss of income pursuant to a recent letter from his school principal dated 19 August 2014 on the matter of his no pay leave (“Principal Letter”).

22. On 20 August 2014, the Ps applied by summons (“Ps’ 3^rd Summons”) for leave to file and serve a Supplemental List of Documents as per the draft annexed thereto (“2^nd Draft Ps’ Supp List”) to make discovery and disclose the Principal Letter.

23. On 22 August 2014, the Ps applied by summons (“Ps’ 4^th Summons”) for leave to replace the 2^nd Draft Ps’ Supp List with the revised draft Supplemental List of Documents annexed thereto (“3^rd Draft Ps’ Supp List”).  The purpose of the 3^rd Draft Ps’ Supp List was to make discovery and disclose the Principal Letter and some webpage printouts to illustrate the extent of internet publication caused by the Article (“Printouts”).

24. Mr Lam confirmed that the Ps’ 2^nd, 3^rd and 4^th Summonses were prompted by observations made by this court at the 1^st PTR, ie this court raised queries whether there was documentary evidence to support P1’s claim for special damages being loss of income and/or evidence to support the allegations of internet circulation of the Article referred to in paragraphs 11, 25 and 15 of the witness statements of P8, P9 and P12 respectively.

25. I pause here to note that although the Ds in their Defence (a) did not make any admission as to the circulation and readership of the Magazine, and (b) claimed the Magazine was only accessible on the internet to paid subscribers, there does not appear to be documentary evidence (whether from independent sources or from the Ds) of the circulation and readership of the printed and electronic versions of the Magazine and, more particularly, the 1088^th issue of the Magazine.  However, this is a matter for future consideration by the parties and the learned Master at the forthcoming CMC.[3]

26. Returning to the Hearing, Mr Ho, counsel for the Ds, indicated that whilst the Ds had no objection to the Ps’ 2^nd Summons, they had reservations about the Ps’ 3^rd and 4^th Summonses since they had yet to inspect and consider the Printouts.  It is perhaps pertinent at this stage to remind the parties of the pleaded dispute on the circulation and readership of the Magazine when the Ds ponder on whether or not to object to the Printouts, especially when there is paucity of material forthcoming from the Ds on the subject of the circulation and readership of the Magazine despite the Peruvian Guano criteria for discovery.

27. By the time of the Hearing the Translation was already available, so the proposal to amend the SoC seemed to provide a welcome opportunity for the Ps to tidy up their pleadings in relation to the English translation of the Words complained of by adopting the Translation. Hopefully, this will cut away a large section in the pleadings dedicated to bickering over the English translation of the Words.  At the 2^nd PTR, I gave directions for the Ps to serve on the Ds a revised ASoC Draft within 14 days for their consideration, and the proposed amendments in such revised ASoC Draft would to be limited to those marked in red as per the ASoC Draft together with further amendments to the pleas on the English translation of the Words.

28. The Ds had no objection to the Ps’ revised ASoC Draft, and on 10 September 2014 the Ps filed their Amended SoC.

IV.  Ds’ SUMMONSES

29. On 20 June 2014, the Ds applied by summons (“Ds’ 1^st Summons”) for (a) leave to file/serve Ngai’s signed supplemental witness statement dated 18 June 2014 (“Ngai Draft”) and the signed witness statements of Tam Ho Ching (“Tam”) and Pang Ming Kwong (“Pang”) both dated 18 June 2014 (“Tam Draft” and “Pang Draft”), and (b) leave to serve a Supplemental List of Documents to make discovery and disclose the documents annexed to the Ngai, Tam and Pang Drafts.

30. On 25 June 2014, the Ds applied by summons (“Ds’ 2^nd Summons”) for leave to amend the Defence in the manner marked in red as per the copy annexed thereto (“AD Draft”).

31. On 25 June 2014, the Ds applied by summons (“Ds’ 3^rd Summons”) for leave to file/serve Tse’s signed witness statement dated 24 June 2014 (“Tse Draft”) and the witness statement of Yeung Chi Chung (“Yeung”) as per the unsigned draft annexed thereto (“Yeung Draft”).

32. On 20, 25 and 25 June 2014 respectively, the Ds filed the 1^st, 2^nd and 3^rd affirmations of their solicitor Chan To Pong Sunny (“Chan”) in support of the Ds’ 1^st, 2^nd and 3^rd Summonses (“Chan’s 1^st, 2^nd and 3^rd Affs”).  On 27 June 2014, the Ps filed P2’s affidavit in opposition (“P2’s Aff”).

V.  LEGAL PRINCIPLES

33. There can be no shying from the fact that the Ds’ 1^st, 2^nd and 3^rd Summonses were late applications made well past the case management deadlines for finalising witness statements and pleadings and just shortly before the 1^st PTR when the trial was looming large on the horizon.  Although the Ds’ 1^st, 2^nd and 3^rd Summonses involved applications for amendment of pleadings, introduction of additional/ supplemental witness evidence and further discovery, such applications were essentially driven by the applications for late witness statements, ie if such applications for late witness statements fail, the whole basis for the applications for late discovery and late amendment of pleadings will fall away.[4]

34. The relevant principles on applications to introduce late witness statements viewed through the prism of the Civil Justice Reform (“CJR”) are trite and have been canvassed in a number of authorities.[5] I have recently summarised those principles in paragraphs 53-59 of my Reasons for Decision in Nam Ching Wun v Tsun Un Pawn Shop also known as Tsun Yun Pawn Shop with Tang Yam Wan as trustee by Yeung Fook Mui and Tang Ying Ip (or Yip) as administrators of the estate of Tang Pui King alias Tang Yum (or Yam) Wan alias Tang Kin Cheung, deceased & ors,[6] and I rely on such summary.

35. As regards applications for late amendment of pleadings, the approach is no different, and the court in the exercise of its case management discretion should undertake a balancing exercise upon consideration of all relevant circumstances.  Although Mr Ho submitted that the court has wide powers to allow amendment of pleadings at any stage of the proceedings,[7] he acknowledged (as he must) that the court would not order a pleading to be amended unless it is of the opinion that the order is necessary for disposing fairly of the cause or matter or for saving costs.[8]

36. Mr Ho argued that all applications for late amendments of pleadings, further discovery and additional witness evidence should be allowed to enable the real questions between the parties to be decided unless they cause prejudice to the other party that cannot be compensated by costs.  But as explained in DBS Bank (Hong Kong) Limited v Sit Pan Jit[9] and Nam Ching Wan,[10] such broad principles must be viewed through the prism of delay (especially when it is unexplained and/or unjustified) in the case of a late application, which brings into focus (a) the underlying objectives in Order 1A rule 1 of the Rules of the High Court (“RHC”), including the need to increase cost-effectiveness, ensure expedition, promote reasonable proportion, and ensure fairness between the parties, and (b) the necessary recognition that the closer to trial an application is made to shift the litigation goalposts, whether in relation to pleadings, discovery and/or witness evidence, the more likely it is to cause real prejudice to the other party.

VI.  PARTIES’ PLEADED CASE

37. It is necessary to start with the parties’ respective pleaded case to put the Ds’ 1^st, 2^nd and 3^rd Summonses in context.

(a)  Amended SoC

38. Mr Lam in his submissions suggested that the “more important defamatory remarks” in the Article were in respect of four matters:

(a) the Ps were members of a heretical cult similar to “The Children of God”, which was famous for their fornication;

(b) the Ps’ Church targeted young people, including P1’s primary school students;

(c) the Ps held promiscuous gatherings and practised heretical religious rituals, including rubbing oil over the body of female believers and throwing dolls up and down; and

(d) the Ps’ Church practised “換妻” and “配婚”.

Mr Lam argued that in the Article the Ps’ Church was alleged to be a heretical cult not because of any theological doctrine or belief (such as the matter of “rapture”) but because of acts alleged in the Article (eg fornication).  He also noted that the express reference in the Article to the practice of “配婚” only involved P11, P12 and Tsui, Ngai and his former girlfriend, and P1 and P2, and the body of the Article made no reference to any specific incident of “換妻”.

39. However, a quick review of the Ps’ pleadings shows that their complaints as well as the disputed facts/matters are much wider in scope than suggested by Mr Lam.

40. In the Amended SoC, the Ps pleaded that the Ds deliberately printed/published or caused to be printed/published the Article in the Magazine, and the Article and Photos were understood and meant to refer to them, and no less than 42 phrases/sentences/passages of the Words were grossly defamatory of them in their natural and ordinary meaning as follows:

(a) the Ps were believers of and/or otherwise involved in or associated with a religious denomination under the name of “真理天城教派” (“Cult”);

(b) the Cult was a heretical religious cult similar to “The Children of God” famous for their fornication;

(c) the Cult targeted young people and was at the material time active in the Taipo District;

(d) the Cult at the material time practised promiscuous gatherings and heretical religious rituals, ie “身體搽油”, “換妻” and “配婚” practices, which were mysterious, absurd, appalling and contradicted orthodox Christian faith/belief, and the Ps were involved in or otherwise associated with such practices;

(e) the 1^st Premises (which at that time was the dwelling place of P9 to P12) and the 2^nd Premises (which at that time was the dwelling place of P3 to P6) were used for mysterious and promiscuous practices and/or heretical religious rituals;

(f) P1 was the hierarch of the Cult and P2 to P12 were his followers or otherwise under his influence, and P2 was the prophetess in the Cult;

(g) at the material time, P1 (i) wrongfully used his position as a primary school teacher to recruit schoolchildren to become believers of the Cult and to earn the trust of new believers, (ii) wrongfully used false/twisted religious teachings and improper means to brainwash believers of the Cult and to control/influence their private lives, (iii) used false religious teachings to  wrongfully delude female believers to allow him to perform promiscuous “身體搽油” ceremony on them, (iv) used apotheosis and phantoms religious theories/ prophecies and (aided by P2) wrongfully manipulated and/or took advantage of the trust of believers to delude them into “配婚” practices, and (v) had practised heretical “配婚” himself with P2 and cohabited with her;

(h) P1’s denials when confronted by D1’s reporter were lies because he was in fact the hierarch and he knew there were practices of “換妻” and “配婚” in the Cult, and he refused to answer the reporter’s questions on his relationship with P2 because he wanted to conceal their relationship;

(i) the Ps refused to answer the reporter’s questions because they were concealing mysterious improper practices of the Cult;

(j) P9 appeared to be “nervous and heedful” when D1’s reporter visited the 1^st Premises because he wanted to conceal the practices of the Cult there;

(k) P3/P4 and P7/P8 were married under “配婚” as directed/influenced by P1;

(l) at the material time, P1’s Christian belief and understanding of the Holy Bible was wrong or otherwise twisted;

(m) P1 was an immoral, dishonest and arrogant person, and he lied about his knowledge of Greek.

The Ps claimed that by reason of the publication of the Words they suffered damage to their reputation and they were distressed/embarrassed.  They claimed for injunctive relief as well as for loss and damages including aggravated and/or exemplary damages and special damages being P1’s loss of income.

(b)  Defence

41. In their Defence, the Ds denied the Article referred to the Ps or it had been shown or could be shown that the Article had been published to persons who knew P3 to P12.  But if, which was denied, the Words were understood to refer to the Ps, the Ds denied the Words in their natural and ordinary meaning and in their proper context bore any of the meanings set out in the above paragraph.  But if the Words bore or were understood to bear or capable of bearing the meanings set out in the above paragraph, the Ds relied on a justification defence in that the Words in their meaning as follows were true in substance and in fact, and if necessary the Ds would rely on section 26 of the Defamation Ordinance Cap 21:

(a) there was a religious group associated with the name/term “真理天城” (“Group”);

(b) P1 and P2 were respectively a leader and a member of the Group, and P1 admitted he was a “執事” of the Group;

(c) P1 and/or P2 made suggestions and/or gave advice to members of the Group, including in respect of members’ romantic relationships;

(d) one ritual practised by the Group was to dab or spread oil onto members of the Group;

(e) an activity undertaken by members of the Group included throwing dolls up and down.

Mr Lam submitted the Defence did not allege that the Ps’ religious group was in fact “真理天城”, and it was implicit in (c) above that the Ps did not practice “換妻” and “配婚” and that there was no control exercised over members of the Group.

42. In the Defence, the Ds further or alternatively relied on the defence of fair comment, ie insofar as the Words contained the following comments or expressions of opinion they constituted fair comment made in good faith and without malice on a matter of public interest (ie the organisation of a religious group in Hong Kong and the practices engaged by the Group):

(a) “換妻邪教”;

(b) “「最令人震驚係呢個教派舉行配婚制度，就連已婚夫婦都要拆開重新分配，任何正統宗教派別都唔會搞配婚，連信徒私生活都操控，好明顯呢個教派係邪教。」離教信徒阿明[ie Ngai]道出真理天城教的黑暗面，及很多鮮為人知的荒誕行為。”

43. The Ds pleaded the following particulars of facts/matters in support of the defences of justification and fair comment:

(a) on/about 6 January 2011, a member of D1’s staff interviewed a former member of the Group Ngai who said that during the time he was a member of the Group, P1/P2 told him and his then fiancée to separate, and as a result he and his then fiancée broke off their relationship;

(b) on/about 7 January 2011, members of D1’s staff attended the 1^st Premises, which they identified from a photograph of a meeting place of the Group obtained in/around late December 2010 from a member of the clergy, who also provided a photograph of P1 and P2, and identified them as being persons associated with the Group;

(c) on/about 8 January 2011, members of D1’s staff attended the 1^st Premises again and saw P1 and P2 entered the premises, and they later followed P1, P2 and other persons (who left the 1^st Premises) first to a restaurant and then to the 2^nd Premises;

(d) upon observation of the 2^nd Premises, a member of D1’s staff saw a member of the Group throwing a doll up and down repeatedly at the 2^nd Premises;

(e) on/about 10 January 2011, a member of D1’s staff conducted an internet search of P1’s name, located P1 (who was a teacher at a school in Shatin) and interviewed him, and during the interview, P1 said that (i) the Group was affiliated with a website entitled/known as “真理天城” (“Website”), (ii) P1 was a founder and “執事” of the Group and had a supervisory role, (iii) P2 was also a member and prophetess of the Group, and P1 and P2 worked together within the Group, (iv) one ritual practised by the Group was to dab/spread oil onto members of the Group, and (v) P1 and other members of the Group made suggestions and/or gave advice to members of the Group regarding their romantic relationships.

(c)  Reply

44. It is significant to note that on 24 September 2011 the Ps filed their Reply which traversed many of the facts and matters pleaded in the Defence, and which therefore gave insight as to the scope of the disputed issues between the parties relevant for the purpose of the trial of the present action.

45. In the Reply, the Ps averred that the Words and Photos depicted the Ps, and (a) by reason of the small number of believers associated with the alleged Cult the Ps could be readily identified and referred to as believers of the alleged Cult, (b) other persons (including relatives, friends and neighbours residing in/around San Tau Kok Village, Tai Po) were able to identify and refer to P9, P11 and P12 from the references to their English names alongside a reference to and a Photo of their residence at the 1^st Premises in the Article, and those readers would be able to identify/refer to P10 as P9’s wife, and (c) by reason of a reference to and a Photo of their residence at the 2^nd Premises together with the Photos depicting P3 and P4 in the Article, other persons (including relatives, friends and neighbours residing in/around Fu Shin Estate, Tai Po) would be able to identify and refer to P3 and P4 after reading the Article.

46. The Ps denied the Words in their natural and ordinary meaning merely bore the meanings the Ds alleged.  The Ps reiterated their pleas in the SoC (now the Amended SoC) and further averred that:

(a) the repeated/prominent use of the phrase “換妻邪教” at the cover, contents and inside pages of the Magazine and the characterisation of the alleged Cult as an equivalent of “淫亂盛名的「天父的兒女」” were intended/calculated to convey the message, and strongly suggested and/or gave the impression, that the Ps (in particular P1 and P2) were engaged in “換妻” adult sexual activity and/or evil or immoral behaviour involving “換妻” rather than merely making suggestions and/or giving advice to members of the Group in respect of their romantic relationship, and this was borne out by repeated suggestions in the Article that P1 would “埋手” young female believers and the wives/ companions of male believers and “配婚” them to his heelers and henchmen;

(b) references in the Article to “男教主除了替女信徒身體搽油驅鬼，搞荒誕淫亂聚會外”, “犯咗淫邪罪嘅姊妹會企响圓圈內，接著Chris使用橄欖油替女信徙塗抹”, “「要換睡袍搽面?你唔係最後要搽埋全身?」記者追問阿明，阿明聽後滿臉漲紅不願作答，然後表示這些怪誕儀式並不是最可怕”, “不少女信徒深信Chris有超能力，能看出她們犯過「淫邪」罪，故亦甘願接受Chris對她們的懲罰及救贖” etc were intended/calculated to convey the message, and strongly suggested and/or gave the impression, that Chris (ie P1) anointed oil over the whole naked body of female believers and engaged in such indecent and promiscuous acts under the false name of religious practices.

47. The Ps also denied the particulars of meaning the Ds alleged were true in substance and in fact by reiterating their pleas in the SoC (now the Amended SoC) and further averred that:

(a) the Group (ie the Cult) did not exist, and instead (i) all the Ps were members of the Church being a family church with orthodox Christian beliefs, (ii) the Church was not a heretical religious cult, (iii) the words “真理天城” were the name of the Website and save that some of the editors of the Website (including P1) were members of the Church, the Website had no direct/official relationship with the Church;

(b) since the Group did not exist, P1 and P2 were not respectively the leader and member of the Group, and in the Church all members were equal “弟兄姊妹” and the position of “教主” never existed;

(c) since the Group did not exist, P1 was not a “執事” of the Group but was one of the Church’s “長執制度下兩位監督”;

(d) P1 and P2 did not make suggestions and/or give advice in respect of romantic relationship of members of the Church, but the Article repeatedly suggested P1 was involved in “換妻”, “埋手” young married female believers and “配婚” them to his heelers and henchmen;

(e) the supporting incident cited in the Article concerning P1/P2 was untrue in that (i) P1 did not promote P2 as a prophetess (let alone doing so for the purpose of staying with her) and under orthodox Christian faith/belief “先知” connoted an ability rather than a position which could be promoted, and (ii) P1 divorced his ex-wife due to their difference in values which had nothing to do with the subsequent relationship/marriage between P1 and P2 (the latter of whom was already divorced before she participated in religious gatherings of the Church);

(f) the supporting incident cited in the Article concerning P11/P12 was untrue in that (i) when an ex-member of the Church referred as “Peter” in the Article indulged himself by watching videos of sexual violence on the internet and asked his wife P12 to do so, several members of the Church (including P1) counselled Peter, (ii) due to Peter’s continued defaults, eventually he was no longer admitted to further gatherings of the Church, (iii) in the end P12 decided of her own accord to divorce Peter, and she subsequently married P11, and (iv) such marriage was a voluntary one between P11 and P12;

(g) the supporting incident cited in the Article concerning Ngai was untrue in that (i) Ngai was single when he became a member of the Church, (ii) subsequently he met his girlfriend and sought assistance from the Church due to their differences in their religious beliefs, (iii) Ngai and members of the Church introduced Ngai’s girlfriend to the Church’s gatherings, but she eventually ceased to attend such gatherings, (iv) since then Ngai experienced doubts in his religious belief, and P1 and three other male members of the Church discussed with Ngai and told him it might be more desirable for him to quit the Church and attend the gatherings of his girlfriend’s church if he wished to maintain his relationship with her instead of putting himself into a dilemma and questioning his religious belief, (v) Ngai chose to stay with the Church and broke up with his girlfriend, (vi) the Church, P1 and/or the three male members of the Church did not ask Ngai to break up with his girlfriend, and they only counselled Ngai out of concern and with a view to assist him in his religious belief, and (vii) since Ngai’s girlfriend ceased to participate in the Church’s gatherings a year before Ngai’s own departure from the Church, there was no basis to suggest she might allegedly be “配婚” to other members of the Church;

(h) in any event, many members of the Church were already married when they joined the gatherings of the Church, and they remained as married couples, so there was no truth in the repeated suggestions in the Article that P1 targeted young married women, disrupted their existing marriages and “配婚” them to his heelers, henchmen or trusted subordinates;

(i) since the Group did not exist, the Ps as members of the Church did not practice the ritual of dabbing/spreading oil onto other members of the opposite sex as alleged in the Article; if there was any need for the anointing of oil on a female member of the Church as a ritual performed for curing diseases as referred to in the Gospel of Mark, Chapter 6, verses 12-13, it would only be administered by another female member or her partner by anointing oil on the forehead or the part of the body affected by diseases, and apart from his wife P2 and male members of the Church P1 had never anointed oil on other female members of the Church;

(j) the Ps denied they (in particular P1) or the Church had ever held any promiscuous gatherings, “換妻” or “配婚” activities as alleged in the Article;

(k) since the Group did not exist, the Ps as members of the Church did not have any religious ritual, practice or activity involving throwing dolls up and down, and the covert surveillance of the 2^nd Premises by D1’s reporter from an opposite building during the night of 8 January 2011and the taking of close-up photographs of such private residence constituted blatant/illegitimate invasion of privacy;

(l) during the night of 8 January 2011, P1 and a few members of the Church attended the 2^nd Premises (ie the residence of P3 and P4) for a social gathering and no religious ritual was practised; the Photo in the Article only showed P4 holding a doll to play with her dog (so it was untrue to suggest that an activity of the members of the Church included throwing dolls up and down), and P4, who was pregnant at that time, turned off the lights and went to bed early whilst other members of the Church who paid a visit to P3 and P4 that night left at/about 10-11pm.

48. The Ps denied the defence of justification or any reliance on section 26 of the Defamation Ordinance Cap 21.  As regards the facts and matters the Ds alleged that went to the defence of justification, the Ps averred that:

(a) the Ps had no knowledge of the interview of Ngai (who was a former member of the Church and not of the Group) by D1’s staff, and Ngai never informed them his girlfriend was his fiancée, and P1/P2 had not told Ngai to break up or separate with his girlfriend;[11]

(b) the Ps had no knowledge of the visit by members of D1’s staff to the 1^st Premises (which was the residence of P9 to P12 jointly rented by P9 and the Church, and which was a venue for religious gatherings by the members of the Church) on 7 January 2011;

(c) the members of the Church attending the gatherings at the 1^st Premises were of different ages (including those of about 50 years to about 80 years), and they participated in activities common to orthodox Christianity belief such as singing, praying and bible reading etc; and occasionally after the religious gatherings at the 1^st Premises, some members would go to the residence of P3 and P4 for social gatherings;

(d) there was no video recording/surveillance equipment installed outside the 1^st Premises, and on/about 8 January 2011 when a person knocked on the door of the 1^st Premises, P9 was surprised because (i) the 1^st Premises located on the first floor was not accessible without passing through the main gate on the ground floor that was usually locked, and (ii) the Church had not publicly disclosed the use of the 1^st Premises as a venue for religious gatherings; so when P9 opened the door to the female reporter who (i) claimed to be introduced by a former member Jerry whom P9 had never heard of, and (ii) wished to join the religious gatherings at the 1^st Premises, and P9 then found another suspicious male idling at the staircase leading to the 1^st floor, P9’s suspicion was roused and as a matter of prudence he asked the female to contact them through the Website, but he never told the female it was necessary to obtain P1’s approval for her to join the religious gatherings;

(e) some members (particularly those of more advanced age) left in the course of the religious gathering that day or immediately after it, and the remaining 10 odd members went to a restaurant for dinner after which some of them attended the 2^nd Premises being the residence of P3 and P4 for social gathering, but they did not know they were being covertly followed by members of D1’s staff first to a restaurant and then to the 2^nd Premises and/or being covertly observed/surveyed by a member of the D’s staff from an opposite building;

(f) on/about 10 January 2011 when P1 walked out from his school at the main gate, a reporter of D1 suddenly took repeated photographs of him and confronted/challenged him with hostile questions, many of which were without basis and he was not given a reasonable chance to respond; since the reporter insisted P1 was extremely evil and P1 did not wish to jeopardise the school’s reputation, he invited the reporter to go to a nearby café so he could clarify some matters within the limited timeframe, and he drew the reporter’s attention to inter alia the distinction between the Website and the Church, clarified that the concept of casting away demons was not unknown to Christianity belief, and referred the reporter to relevant passages in the Gospel.

49. The Ps denied the words complained of by the Ds constituted comment or comment on a matter of public interest, and claimed D1 was not entitled to rely on the defence of fair comment since the publication of the Article and Words was actuated by malice:

(a) the Ps reiterated the pleas in the SoC (now the Amended SoC) and the Reply, and claimed the Article and Words were grossly untrue and false, and D1 knew or believed what was published therein were untrue and/or they did not care whether they were true or not;

(b) excessive language was used in the Article and Words, and the Ps reiterated the pleas in the Reply;

(c) the Article and Words were published for the improper motive of increasing circulation of the Magazine, and the Ps reiterated the pleas in the Reply.

VII.  27/2/13 Order

50. Mr Ho submitted that the 27/2/13 Order had no bearing on Ds’ 1^st, 2^nd and 3^rd Summonses because such order only granted liberty to the Ds to serve witness statements in reply to the additional witness statements of P9, P10 and Tsui.  I gratefully adopt Mr Ho’s summary of the contents of those additional witness statements in his written submissions as follows:

“13. P9 covered in his witness statement …… that [the 1^st Premises] is not the 「大本營」of「真理天城」, the conversation P9 allegedly had with the Ds’ reporter was 「完全虛構」, matters relating to donations received, and the impact of the publication of the Article on him and P10.

14. P10 covered in her witness statement …… the impact of the publication of the Article on her.

15. [Tsui] covered in his witness statement …… his relationship with P12 (Denise), oil anointment, Ngai’s relationship with his former girlfriend, the justification for disallowing believers to attend activities, general denial of marriage rearrangement and P1’s character.”

Mr Ho argued that save for the Ngai Draft which touched on Ngai’s relationship with his former girlfriend and his elaboration on “配婚”, the Tam, Pang, Tse and Yeung Drafts and the other parts of the Ngai Draft were not made in reply to the additional witness statements by P9, P10 and Tsui, and the Ds were prepared to forego any part of the Ngai Draft that the court would consider to be in response to such additional witness statements.  Mr Ho reminded that, in any event, the 27/2/13 Order was not a peremptory order.

51. In my view, whether or not the 27/2/13 Order is a peremptory order does not alter the reality that the Ds’ 1^st, 2^nd and 3^rd Summonses are late and well past the case management deadline for exchange/service of witness statements.  Indeed, those applications were issued more than a year after the present action was set down for trial.

52. But the 27/2/13 Order is significant because it provided an opportunity (at a time when the present action was about to be set down for trial) for the Ds to revisit their witness evidence and to consider their sufficiency or otherwise, so as to enable the Ps to take steps to remedy any perceived deficiency.  I bear in mind that even the Ds acknowledged that the unsatisfactory state of their witness evidence is obvious and apparent (as borne out by the Ds’ Solicitors’ instant recognition of such deficiency when they took over the conduct of the present action).  Further, it was clear from Chan’s 1^st Aff that the Ds’ former solicitors were all along aware of the relevance and significance of Ngai’s and Tam’s evidence,[12] and it therefore behoved the Ds and their legal representatives to keep the matter under review, especially when the Ps introduced new witness evidence and the case was set down for trial at the same time in February 2013.  This should have sounded a warning to the Ds that they should attend to readying their witness evidence and their case for trial.  I do not think the 27/2/13 Order assists the Ds’ case for the Ds’ 1^st, 2^nd and 3^rd Summonses.

VIII.  REASONS FOR THE DELAY

(a)  Ds’ explanation

53. Mr Ho submitted that although the Ds’ 1^st, 2^nd and 3^rd Summonses were made at a late stage in the proceedings, the Ds had provided a full account and justification for the lateness in Chan’s 1^st, 2^nd and 3^rd Affs.

54. Chan explained that upon review of the Ds’ case in preparation for the 1^st PTR and trial by the Ds’ new legal team as a result of recent change of solicitors and counsel, the Ds’ new legal team opined that the witness statement of Ngai (D1’s confidential informant who was identified in the Article as “阿明”)[13] dated 25 May 2011, which made no reference to the bundle of emails between the Ps and Ngai (“Email Bundle”),[14] was inadequately brief.[15] Upon enquiry, the Ds informed the Ds’ Solicitors that after the commencement of the present action, Ngai and Tam were reluctant to take part in the proceedings, and Tam expressly requested that her identity be kept confidential, so the Ds’ former solicitors could only take a brief witness statement from Ngai.  Upon encouragement by the Ds’ new legal team, the Ds contacted Ngai and Tam for their assistance, and Ngai agreed to attend a conference with the Ds’ Solicitors.  At the conference on 6 June 2014, Ngai agreed to get more involved.  He brought along Pang who was an ex-member of the Group and who also agreed to come forward as a witness for the Ds, and he further advised that Tam might be willing to assist.  The Ds’ Solicitors approached Tam, and had a conference with her on 12 June 2014.  Tam confirmed her willingness to come forward to assist as witness for the Ds.  On 18 June 2014, the Ds’ solicitors had a conference with Ngai, Tam and Pang to finalise the Ngai, Tam ad Pang Drafts, and they disclosed various emails in support of their allegations, which emails were annexed to the Ngai, Tam and Pang Drafts.

55. Ds’ new legal team also took the view that Tse’s evidence was crucial because (a) Lui’s and To’s witness statements both dated 5 December 2012 showed they acted under the direction/instruction of Tse as the responsible author/editor of the Article, and Tse was referred to many times in their witness statements, and (b) the Ngai Draft stated Ngai forwarded the Email Bundle to Tse, which matter was not dealt with clearly in the Ds’ witness evidence.  Upon enquiry by the Ds’ Solicitors, the Ds advised that Tse had left D1’s employ in/about July 2012, and they could not locate Tse when witness statements were exchanged in December 2012.  As result of investigation upon further encouragement by the Ds’ Solicitors, the Ds discovered that in fact Tse had re-joined D1 in/about August 2013, but all along Tse was unaware of the present action.

56. Chan had a conference with Tse on 24 June 2014 and the Tse Draft was prepared.  During such conference, Tse revealed that it was Yeung who initially made contact with D1 and who introduced Ngai to Lui (the reporter who contacted Ngai initially).  The Ds informed the Ds’ Solicitors that Yeung was previously reluctant to take part in the proceedings, and requested that his identity be kept confidential, so there was no reference to Yeung when witness statements were exchanged in December 2012. Upon further encouragement by the Ds’ Solicitors, the Ds contacted Yeung during the conference, and Yeung indicated he was willing to come forward to be a witness for the Ds.  The Yeung Draft was then prepared.

57. Chan claimed the Ds’ 1^st and 3^rd Summonses could not have been made earlier since Ngai, Tam and Yeung did not agree to take part or to take part in a material way in the present action, and the Ds were not aware of Pang’s existence or of Tse’s return to D1’s employ in August 2013 until June 2014.  Thereafter, the Ds’ new legal team took prompt action to finalise the Ngai, Tam, Pang, Yeung and Tse Drafts.  By reason of the “newspaper rule”, the Ds were obliged to keep the identity of their informants anonymous, and there was nothing they could do if Ngai, Tam and Yeung refused to take part or to become materially involved in the proceedings and/or insisted on their identity being kept confidential.

58. Chan claimed that as a result the Ds could not have included in the Defence the lines of defence premised on the particulars drawn from the Ngai, Tam, Pang, Yeung and Tse Drafts before such supplemental/additional witness statements were available, especially when Ngai, Tam and Yeung informed the Ds of their reluctance to take part in the proceedings, and Tam and Yeung expressly requested their identity be kept confidential.

(b)  Discussion

59. First, I find that whilst the last-minute change of the Ds’ legal team before the 1^st PTR may explain the lateness, it does not provide any sufficient excuse, especially when the Ds were all along under legal representation and advice.  Paragraph 42 of Practice Direction 5.2 makes clear that “change in the team of lawyers” is not a justifiable excuse where late applications put milestone events at risk.  I accept the Ds’ new legal team has been diligent and swift in their efforts since they took over the handling of the Ds’ case in early June 2014, but that is not enough to excuse the delay.

60. Secondly, it was said that Ngai, Tam and Yeung were primary informants, and the “newspaper rule” prevented the Ds from disclosing their identity.[16] Whilst I agree that the “newspaper rule” may apply to Yeung, it has no further application to Ngai whose identity has already been disclosed (and indeed Ngai has already given a witness statement in the present action). It also has no application to Tam.  Even though Mr Ho submitted that Tam was an informant, he eventually conceded there was nothing in the witness evidence (including the Ngai, Tam, Tse and Yeung Drafts) to suggest that she was D1’s informant at the material time.

61. However, the more significant reason for the delay in respect of witness evidence from Ngai, Tam and Yeung was their initial reluctance to become involved (or in Ngai’s case to become materially involved) in the present action, and Yeung and Tam even insisted that their identity be kept confidential.  A lot can be said against the Ds for their failure to revisit the sufficiency or otherwise of their case at the latest upon setting down for trial.  If they had done so, they would have realised at a much earlier stage the deficiency in their witness evidence (which they finally perceived in June 2014), which in turn would have prompted them to take the steps they have now taken to approach Ngai, Tam, Yeung and Tse at a much earlier stage (possibly a year ago).  However, in all fairness, there is no telling how these persons and Pang would have reacted, and there is no degree of confidence that they would have come forward to be substantial witnesses for the Ds with the alacrity they have now shown if there had not been the pressure brought to bear on the Ds by the imminence of the 1^st PTR and the upcoming trial.

62. I therefore find there is acceptable explanation for the delay vis-à-vis Ngai, Tam and Yeung as well as the lateness of some emails recently provided by Ngai and Tam to the Ds.  It follows there is also acceptable explanation of the delay vis-à-vis Pang and the emails he disclosed because it was Ngai who brought Pang to the Ds’ attention.  Even so, this court sets its face against the Ds’ tardiness as explained in the above paragraph.  It is plain from Chan’s 1^st, 2^nd and 3^rd Affs that the Ds and their former legal team well knew or would have known of the deficiency in the Ds’ witness evidence, and yet nothing was done about it until the late change of legal team.  Such conduct should be reflected in costs when there is no impropriety on the Ps’ part in respect of the Ds’ applications.

63. As regards Tse, I am not persuaded there is justifiable reason for the delay.  Had proper re-assessment of the Ds’ case (including witness evidence) been done in good time prior to the 1^st PTR, it would have been apparent to the Ds’ former solicitors (in the same way as it became apparent to the Ds’ new legal team) there was a need for Tse to provide witness evidence, which in my view would have prompted renewed efforts to look for Tse.  In any event, no explanation was forthcoming from D2, Lui and To (who as factual witnesses for the Ds would have known of the present action and who must have known that Tse became their colleague again since August 2013), especially with D2 as the chief editor, as to why D1’s management was not alerted of Tse’s return to the fold.  There is also no suggestion that Tse was ever reluctant to be a witness for the Ds.  I am not persuaded there was good reason for delay vis-à-vis Tse.

64. As regards the proposed amendment of the Defence, I agree with Mr Ho that the Ds could not have seriously put forward those new pleas without the new witness evidence from Ngai, Tam, Pang, Tse and Yeung and the emails they disclosed, and I have already found there was acceptable reason for the delay vis-à-vis Ngai, Tam, Pang and Yeung and the documents they provided.

65. Mr Lam submitted that the Defence had to be amended first before the Ngai, Tam, Pang, Tse and Yeung Drafts would become relevant, and hence if the Ds’ 2^nd Summons were dismissed, the Ds’ 1^st and 3^rd Summonses would also fall away.  I disagree.  Whilst the correct approach at an early stage of litigation is have to proper pleadings to set the scope of witness evidence, at a late stage the court would be reluctant to entertain any proposal to amend pleadings, especially those that raise new focus/dimension unless the proposed amendments are supported by evidence.  It is rather pointless to consider possible amendments to pleadings just before trial when the applicant has no or no admissible evidence to support the new pleas.  In my view, the Ds’ 1^st, 2^nd and 3^rd Summonses are driven by the applications for leave to adduce new witness and/or documentary evidence, failing which the whole foundation for the applications will fall away.  However, if leave to adduce new witness evidence is allowed, then there may be basis for pleading the particulars of facts relied upon and for putting forward legal defences that arise from the new witness evidence.

66. This is particularly so in pleading defences to a libel claim.  As explained in Duncan and Neill on Defamation,[17] “[a] plea of justification should not be put forward lightly or without careful consideration of the evidence available or likely to become available.  Thus the defendant should have reasonable evidence to support the plea or reasonable grounds to suppose that sufficient evidence to prove the allegations will be available at the trial.  The defendant should also intend to support the plea of justification at the trial ……”

67. In the present context, whilst the court will not lose sight of the existing pleadings and will be alive to the concern over whether the new witness evidence from Ngai, Tam, Pang, Yeung and Tse will open up new dimensions, the primary question is whether in all the circumstances (including the considerations of lateness and the new culture under the CJR) to allow the new witness evidence, and if so, whether to allow amendments to be made to the Defence for relevant defences and particulars to be expressly pleaded to reflect the Ds’ case that rests on the new witness evidence.

IX.  RELEVANCE AND PREJUDICE

68. Mr Ho submitted that the subject matter of the Ngai, Tam, Pang, Tse and Yeung Drafts and the annexures thereto relate to matters that were at the centre of contention between the parties, and were therefore highly relevant to the disputed issues.  He submitted that they should be admitted into evidence to enable the real questions between the parties to be decided.

69. On the other hand, Mr Lam submitted that the subject matter of the AD Draft and that of the Ngai, Tam, Pang, Tse and Yeung Drafts and the annexures thereto unjustifiably extended the scope of the present action and caused confusion to the real issues in dispute, thereby increasing costs of the litigation and obstructing fair disposal of the case.

(a)  General considerations

70. Before I turn to the individual Ngai, Tam, Pang, Tse and Yeung Drafts and the annexures thereto, I propose to deal with various arguments that appear to be a running theme in Mr Lam’s submissions.

71. First, Mr Lam complained that in the AD Draft the Ds purported to add a new allegation that Ps’ Group was a religious cult of heretical doctrine and belief, and that the new witness evidence tried to justify this by relying on matters beyond what was reported in the Article. Mr Lam submitted that the proposed new pleas and new witness evidence amounted to no more than an attempt by disgruntled ex-members of the Ps’ Church to seek personal vendettas against the Ps.

72. In my view, the allegation that Ps’ Group is a heretical religious cult is not a new matter.  In the Amended SoC, the Ps have pleaded the following Words (as per the Translation) in the Article, which they claimed, were defamatory of and concerning them:

“There is religious freedom in Hong Kong and hence, many heretical religious cults are active locally under their protective umbrella, in the past, there was “The Children of God: which is famous for their promiscuity, and in recent years there is the “Heavenly Kingdom of Truth” denomination which is active in the district of Tai Po.” (paragraph 15(3))

“the Heirarch Chris, being a primary school teacher …… his absurd behaviours and beliefs are greatly at odds with the orthodox Christianity faith and belief” (paragraph 15(5))

“A Christian heretical cult named Heavenly Kindom of Truth is very active in the district of Tai Po, holding mysterious religious rituals in [the 1^st Premises] and [the 2^nd Premises] during every Wednesday night and Saturday” (paragraph 15(7))

The Ps in the Amended SoC pleaded that the natural and ordinary meaning of the impugned words included the following:

“The Cult was a heretical religious cult which is similar to “The Children of God” famous for their fornication.” (paragraph 17(2))

“The Cult was at the material time practising promiscuous gatherings and heretical religiousrituals …… Such practices were mysterious, absurd, appalling and contradicting to the orthodox Christian faith and belief.” (paragraph 17(4)) (my emphasis)

“The Christian belief and understanding of the Holy Bible of [P1] was at the material time wrong or otherwise twisted.” (paragraph 17(23)) (my emphasis)

Further, in paragraph 30(1)(c) of the Reply, the Ps specifically put the matter in issue by their denial that the Church was a heretical religious cult.

73. Mr Lam suggested that by likening the Ps’ Group to “The Children of God” the essential meaning of some passages in the Article which the Ps complained of was that the Ps’ Group was a heretical religious cult with sexual and promiscuous practices rather than a heretical religious cult based on general theological doctrine/belief. However, generally speaking, in pleading and proving a defence of justification, although a defendant (with limited exceptions) is not permitted to justify (a) a more serious meaning for the words complained of than that asserted by the plaintiff or (b) a meaning which is wholly distinct from that asserted by the plaintiff, he is entitled to justify a different shade of meaning or a less injurious meaning or any meaning which the words are reasonably capable of bearing.[18] Therefore, the defendant is required to specifically plead the defamatory meanings that he seeks to justify and give details of the matters which he relies on in support of that allegation.[19] In the circumstances, subject to the question of prejudice to the Ps and to the sufficiency of evidence to support such plea, I am not persuaded the Ds’ proposed plea to the effect that the Ps’ Group was a religious cult with questionable religious practices is impermissible.

74. As regards the complaint that the new witness evidence (and hence the proposed new particulars in the AD Draft) relied on facts and matters that went beyond the scope of the Article, I do not understand, as a matter of principle, the evidence in support of a plea of justification is necessarily confined to the impugned article or words, and Mr Lam did not cite any authority to support such contention.[20] Here, the Article is not a publication that contains a single specific defamatory allegation against the Ps that calls upon the Ds to justify the truth of only that allegation.  In paragraph 17 of the Amended SoC, the Ps have chosen to plead a wide range of meanings covering both specific and general allegations, and it is debatable whether or not all such allegations convey a common sting.  Mr Ho drew my attention to paragraphs 17(8)-(10), (13‑14), (21) and (23) of the Amended SoC, and asked me to view the Article and the Ps’ pleaded case as a whole.  In my view, the wide ambit of the pleaded meanings substantially extends the scope for the particulars of justification so as to admit evidence to address those matters, , and the admissibility of such evidence of itself (subject to any prejudice arising out of the lateness of the applications) cannot be said to cause prejudice to the Ps.

75. I agree there must be case management control over the ambit of matters to be canvassed at trial, which should be focused on the essential issues and evidence necessary for a fair determination of the dispute between the parties, and the court should not allow the libel litigation to become an uncontrolled roving inquiry into all sorts of peripheral matters.  But it must not be forgotten that it is up to the plaintiff to decide how best to plead his libel claim, which frames the ambit for the pleaded particulars of justification that in turn determines the ambit of the disputed issues and the required discovery.  Where “claimant brings an action to vindicate his reputation, …… it is a poor form of vindication if it is only obtained by half muzzling the other side in what it may seek to prove true”.[21] Ultimately, “[a] balance has to be struck between the risk that a claimant may obtain damages and an injunction on a false basis …… and the risk that the claimant will be unfairly prejudiced or the case unduly prolonged by the introduction of material which has no sufficient connection with the allegation complained of.  In reaching a decision the court will be guided by the principle that there should be a fair trial of the issues between the parties and by the principle of proportionality”.[22] Hence, the lateness of the Ds’ applications and the resulting prejudice to the Ps (if any) must also be brought into the balancing exercise.

76. But as seen below, apart from certain passages in the Ngai, Pang, Tse and Yeung Drafts and corresponding parts in the AD Draft that I disallow, the new witness evidence and proposed amendments to the Defence can be legitimately advanced under the defences of truth, honest comment and/or qualified privilege as a matter of pleading/evidence.

77. Secondly, Mr Lam argued that the new witness evidence and proposed amendments to the Defence seek to introduce theological arguments into a simple defamation case, which had the undesirable effect of turning this court into an ecclesiastical court or a forum for theological debate.

78. The parties’ attention is drawn to a useful discussion on the question of judicial non-justiciability in the recent case of the UK Supreme Court Shergill & ors v Khaira & ors.[23] It was held in that case that although the courts do not adjudicate on the truth of religious beliefs or on the validity of particular rites, where a claimant asks the court to enforce private rights and obligations that depend on religious issues, the judge may have to determine such religious isues as are capable of objective ascertainment.  At p 264, the Supreme Court discussed the case of Blake v Associated Newspapers Ltd[24] as follows:

“57. …… In [Blake] the court stayed an action for defamation by Mr Blake against the publisher of the Daily Mail for describing him as a ‘self-styled’ or ‘imitation’ bishop. The claimant had relinquished his status as a priest within the Church of England and had established with a Mr Palmer an organisation called ‘The Province for Open Episcopal Ministry and Jurisdiction’. Mr Palmer had purported to consecrate him a bishop. The case raised questions of doctrine and ecclesiology: the question was whether he was a bishop or merely a self-styled bishop. We do not think that the court was correct to refuse to adjudicate on that issue on the ground that it was non-justiciable. The claim was a civil claim in tort and the court will enter into questions of disputed doctrine if it is necessary to do so in reference to civil interests. See also Forbes v Eden (1867) LR 1 Sc & Div 568 HL, Lord Cranworth (at 581-582), Lord Colonsay (at 588). The problem that such defamation claims face, which will usually doom them to failure, is that they raise issues of religious opinion on which people may hold opposing views in good faith. The expression of such views without malice is likely to be protected by the defence of honest comment – what used, until Joseph v Spiller [2010] UKSC 53, [2011] 1 All ER 947, [2011] 1 AC 852, to be called fair comment.” (my emphasis)

79. Thirdly, Mr Lam claimed that the Ds in the Defence admitted that the Ps “made suggestions and/or gave advice to members of the Group, including in respect of members’ romantic relationships”, which implicitly meant that the Ps did not practice “換妻”, “配婚” or exercise control over the private lives of members.  He argued it was impermissible for the Ds to now plead the opposite and introduce new witness evidence to such effect without any leave to withdraw admissions.

80. In my view, such submissions reflect a misunderstanding of the defence of truth.  As explained in paragraph 73 above, a defendant is entitled to plead and prove a different shade of meaning or a less injurious meaning to that pleaded by the plaintiff or any meaning which the impugned words are reasonably capable of bearing, which is why a defendant is required to (a) specifically plead the defamatory meanings that he seeks to justify and (b) give details of the matters on which he relies on in support of that allegation.  The particulars of meaning pleaded by the Ds in the Defence are simply less injurious or different meanings the Ds relied upon to assert justification and truth, and I cannot see how they amount to implicit admissions as Mr Lam suggested.  There is no need for any so-called withdrawal of admission if the Ds now have the evidence (which they hitherto did not) to support and plead different or more serious meanings which they assert to be true.  But ultimately at trial, the court will have to decide what the reasonable reader would infer as the “single meaning” that the words complained of bear in their natural and ordinary sense.

81. Fourthly, Mr Lam argued that the defence of qualified privilege raised for the first time in the AD Draft should not be dependent on the new witness evidence, and there was no justifiable reason why such defence was not raised until now.  On the other hand, Mr Ho submitted that without Tse’s and Yeung’s evidence, the defence of qualified privilege would not have succeeded, and that was perhaps why this defence was not pleaded when the Ds’ former solicitors drafted the Defence.  Plainly, the defence of qualified privilege in paragraph 13 of the AD Draft is a species of privilege recognised as Reynolds privilege that is of particular importance to the press.  The defence of Reynolds privilege is in essence a defence of publication in the public interest[25] with the requirements that (a) the publication concerned a matter of public interest and (b) the steps taken to gather, verify and publish the information were responsible and fair.[26] Given such criteria, without reasonable evidence to support such defence (eg where the Yeung and Tse Drafts were previously not available), it cannot (and indeed should not) have been raised.  I bear in mind that the assessment is made of the circumstances existing at the time of the publication of the Article to see whether the defence of Reynolds privilege is made out,[27] and the state of mind of the Ds may be relevant.[28] In the circumstances, Tse’s witness evidence as to what was gathered, verified and published for the Article at the material time is arguably relevant to the viability of any assertion of Reynolds privilege.

82. Having disposed of Mr Lam’s general contentions, I now turn to each of the Ngai, Tam, Pang, Tse and Yeung Drafts.

(b)  Ngai, Tam and Pang Drafts

83. The Ds claimed Ngai, Tam and Pang stated in the Ngai, Tam and Pang Drafts what they had seen and heard when they were members of the Group and also their own experience on (a) exorcising the devil, (b) marriage arrangement, (c) P1 being the leader of the Group, (d) P2 being a prophetess, (e) P1/P2 organising a “rapture trip” for the Group, (f) the control the Group exercised on them, (g) the concept of “十二揀選”, (h) the impact on their personal life after joining the Group, and (i) how they were cast away by the Group, and they also provided various emails (including the Email Bundle) in support of their allegations.  Mr Ho submitted that these matters would be highly relevant to the contentions/issues in dispute between the parties, and it would be in the interest of justice to allow such witness evidence to be adduced.

84. Mr Ho reminded that in fact the matters in paragraph 83(a), (c)-(e), (g) and (i) above had been canvassed in the Discovered Emails already discovered and disclosed by the Ds as early as in August 2012.[29] Further, the Recording (also discovered and disclosed by the Ds in August 2012) recorded Ngai’s description of how he came to join the Group and also the other matters in paragraph 83(b)-(g) and (i) above.  It is also evident from the Transcript of the Recording that the matters in paragraph 83(a)-(e) and (i) above had been put to P1 by D1’s reporter on 10 January 2011, and during the interview P1 talked about the Ps and also other persons such as “Henry” (ie Pong), Tam, “Peter” (ie Tsui), Shirley, Denise, 宙斯, Joe and Cliff.  Mr Ho therefore suggested that the Ngai, Tam and Pang Drafts merely amplified the evidence already adduced back in August 2012 without introducing anything new.

85. In my view, the practical reality is that irrespective of the proposed new witness evidence and/or proposed amendments to the Defence, by virtue of the existing documentary evidence these matters are already in issue.  Indeed, the Ps have also put in issue same of these matters in their Reply (see, eg, Ngai’s relationship and break-up with his former girlfriend in paragraph 47(g) above).  Given the topics and materials covered in the Recording/Transcript and the Email Bundle, which essentially emanated from Ngai himself, it is plainly foreseeable that any necessary cross-examination on the disputed matters (and in due course, re-examination) of Ngai at trial will elicit viva voce evidence from him on those matters.  Indeed, putting the Ps’ case to him alone is likely to elicit his denial and explanations as already given by him in his interview as per the Recording/Transcript and in his emails as per the Discovered Emails and/or Email Bundle.

86. In fact, the Ps must have anticipated as much because by the Ps’ 1^st Summons they have tried to introduce the P2 Draft.  Significantly, the subject matter of the Ngai, Tam and Ho Drafts deals squarely with some of the matters raised in the P2 Draft made on behalf of all the Ps, ie the matters in paragraph 83(b)-(e), (g) and (i) above.  I note with interest that the Ps’ 1^st Summons was filed before and independently of the Ds’ 1^st, 2^nd and 3^rd Summonses, and was only withdrawn after the Ds filed their applications.  In my view, notwithstanding the withdrawal of the Ps’ 1^st Summons, such application is nevertheless a tacit recognition or anticipation by the Ps that the matters raised in the P2 Draft may be live issues, and more importantly, since they have already prepared the P2 Draft, it cannot be said that the Ngai, Tam and Pang Drafts raise wholly unexpected dimensions.  It also suggests that the Ps are prepared and will be able to deal with those matters.

87. Given that the matters raised in paragraph 83 above are likely to be canvassed at trial to a certain extent even without the new witness and documentary evidence, it would have been unsatisfactory and untidy to proceed to the trial on the present pleadings and evidence with a real risk of the parties having to make applications in the course of trial for amendment of pleadings etc once evidence on these matters are elicited from Ngai through cross‑examination and re-examination.  This will only lead to confusion and delay, and possibly even more wastage of costs and time.

88. However, I agree with Mr Lam that two aspects of the Ngai Draft should not be allowed:

(a) the third and fourth sentences of paragraph 3 and the 1^st annexure – This refers to an article by a preacher “余仕場先生” that discusses “真理天城”, but there is no information as to when and under what circumstances Ngai read such article.  Further, even though Mr Ho tried to suggest that such article is relevant for rebutting malice, there is nothing before me that shows such article has been passed to the Ds at all.  More importantly, “余仕場先生” is not a witness, and he will not be subject to cross-examination. In such context, such article is plainly prejudicial and not of probative value;

(b) paragraph 9 – I cannot see how a personal debt allegedly owed by P2 to Ngai is relevant to the pleaded issues under the Defence or even under the AD Draft.

89. Mr Lam complained that the bulk of the Ngai Draft and the whole of the Pang Draft involved theological issues unrelated to the present action and unsuitable for determination by the court.  It was also suggested that the bulk of the Ngai Draft and the whole of the Tam Draft went far beyond the scope of the Article (which never mentioned the relationship between Pong and Tam) and Ds’ case as presently pleaded.[30]  I have already dealt with such arguments, and refer again to the discussion in Part IX(a) above.  In respect of the Pang Draft, paragraph 37 thereof refers to a report Pang made to the police after he was allegedly cast away by the Group and a statement that he has given to the police for such purpose.  However, such statement has not been disclosed, and the Ps will not be able to have access to such document.  I consider that the last three sentences in paragraph 37 of the Pang Draft should only be admissible if the Ds discover and disclose such statement by Pang to the police.

90. By the P2’s Aff, the Ps suggested that they would suffer irreparable prejudice if the Ds’ 1^st Summons were allowed.  P2 pointed out that the Pang Draft mentioned Grace, Vivian and “以利亞”.  She said Grace and Vivian are Ho Yuen Yan (“Ho”) and Leung Wai Kuen (“Leung”) who had not attended the Church since they graduated from their secondary school in September 2013, and the Ps had lost contact with them.  Further, “以利亞” was Mauck who passed away on 19 April 2014.  The Ps could no longer invite these persons to give witness statements for them.

91. The P2’s Aff pointed out that the Ngai Draft mentioned Jess (ie Jess Fong), 安琪 (ie Yau On Kei) and Henry (ie Pong), and the Tam Draft referred to Henry (ie Pong).  P2 claimed Jess Fong ceased to attend the Church in 2008, and Yau On Kei and Pong left the Church between 2007 and 2009.  P2 explained that whilst the Ps used to keep the telephone numbers and contact information of Church members (including Jess Fong, Yau On Kei and Pong) in the Church computer, the computer data was lost due to virus infection in early 2014, so the Ps had lost contact with them.

92. Mr Lam submitted that the aforesaid individuals were key players in respect of the matters and events mentioned in the Ngai, Tam and Pang Drafts, and the Ps would suffer prejudice if they could not locate and persuade them to give witness statements in reply and be witnesses for the Ps.

93. On the other hand, Mr Ho asked me to view such assertions with caution because paragraph 13 of P2’s witness statement dated 3 December 2012 stated that “我們的教友……並沒有初中及小學生”.  Mr Ho claimed this clearly demonstrated that P2 was either dishonest in her witness statement or in her affirmation.  In my view, Ho and Leung allegedly participated in the “rapture trip” in September 2010, and they graduated from secondary school in September 2013, so it is at least arguable that they were not “初中及小學生” in 2010-2013. At this interlocutory stage, I am not prepared to find P2 dishonest.

94. Mr Ho also cast suspicion on the Ps’ suggestion that they were unable to contact Ho, Leung, Yau On Kei and Pong when the disclosed emails showed they had email addresses, but there was no apparent attempt on the Ps’ part to contact them via email and/or via Facebook.  He also doubted that none of the Ps had the telephone numbers of those third parties saved in their mobile phones.

95. At the Hearing, Mr Lam submitted that the Ps had already taken some steps to locate Ho, Leung, Yau On Kei and Pong by sending emails to them, but so far there was no response, and the Ps were unsure whether it was because such email addresses were not updated or the recipients chose not to respond.  Mr Lam assured the court that if the Ngai, Tam and Pong Drafts were allowed in whole or in part, the Ps would continue to make efforts to locate them and secure their cooperation.

96. But even assuming that these persons will not be available to assist the Ps, I am not persuaded the Ds will suffer significant and/or overwhelming prejudice.  First, Ngai, Tam and Pang will be called to give viva voce evidence, and they will be available for cross‑examination. It also appears that the Ps, Ngai, Tam and Pang (as well as other members or ex-members of the Church or Group) often communicated by email, and the contemporaneous emails (ie the Discovered Emails, Email Bundle, annexures to the Ngai, Tam and Pang Drafts, and any emails which the Ps may wish to discover and disclose in reply[31]) will aid the parties and the trial judge in understanding what happened at the material time.

97. Secondly, the Ps themselves (particularly P1 and P2) were personally involved in some of matters and incidents referred to in the Ngai, Tam and Pang Drafts, and they can give evidence on those matters themselves.  For example, the Ds relied on an email P1 sent to Ho and Leung, which has been disclosed back in August 2012, and P1 can give evidence himself on the matter.  P1 and P2 also participated in the “rapture trip” so they can give evidence on the same, and indeed the P2 Draft actually deals with this subject.  The emails also show that Pang took part in the “rapture trip” as well, and he can be cross-examined on it.  In the circumstances, I am not persuaded the Ps cannot fairly answer the new witness evidence without the evidence of Ho and Leung.

98. Thirdly, Mr Ho submitted that (according to the Ps) Pong, Jess Fong and Yau On Kei left the Church during 2007-2009 (ie long before the Article was published), so any delay on the Ds’ part did not prejudice the Ps.  Further, as Mauck passed away he would not have been able to attend court to give evidence even if he had prepared a witness statement pursuant to the original case management timetable.  This court further notes from the contents of the P2 Draft that P2 has canvassed the relationship of Pong/Tam, Mauck’s involvement, and some other matters raised in the emails.  Again, I am not persuaded the Ps cannot deal with these matters in reply.

(c)  Tse Draft

99. Chan’s 3^rd Aff claimed the Tse Draft described Tse’s involvement in relation to the publication of the Article, and clarified the basis as to why the Article was published.  On the other hand, Mr Lam submitted the Tse Draft was unnecessary as it did not add anything new to the existing statements by D1’s reporters.

100. I disagree that the Tse Draft is unnecessary.  As explained in paragraph 81 above, an essential requirement of the defence of Reynolds privilege is that the steps taken to gather, verify and publish the information are responsible and fair.  Without the Tse Draft, one sees some difficulty for the Ds to fairly raise such defence.  But if Mr Lam thinks the Tse Draft does not add anything new to the existing statements by D1’s reporters, then on an overall basis the Ds can hardly complain of any significant prejudice.

101. Nevertheless, I am not prepared to allow the following matters in the Tse Draft to be adduced:

(a) the second sentence in paragraph 6 – Lui’s witness statement only refers to information provided by Ngai and makes no mention of the provision of information about the Group by any other unnamed source.  Even as of now, there is no draft supplemental witness statement from Lui to say he has received any materials about the Group from Yeung.  The Yeung Draft also does not mention this.  In any event, the Tse Draft does not say what those materials are.  In my view, the second sentence in paragraph 6 should not be allowed.

(b) paragraphs 43-44 – According to the Tse Draft and Lui’s witness statement, they interviewed Ngai and the interview was recorded.  There is no evidence of other interviews with Ngai prior to the publication of the Article.  The Tse Draft and Lui’s witness statement also do not mention any interview or communication with Tam.  There is also no draft supplemental witness statement from Lui to such effect.  Indeed, neither the Ngai Draft nor the Tam Draft mentions any interview or communications with the Ds, Lui and/or Tse.  In the circumstances, although the Tse Draft claims that part of the information Ngai provided went into the Article, there is simply insufficient basis for Tse to make a broad and unspecific assertion that Ngai and Tam have provided to the Ds most of the information and materials in the Ngai, Tam and Pong Drafts prior to the publication of the Article.  I note the Ds never even met Pong until June 2014 when Ngai brought him along to meet the Ds’ Solicitors.

(d)  Yeung Draft

102. According to the Tse Draft, it was Yeung who introduced Ngai to Lui (although Yeung did not say so in the Yeung Draft).  What the Yeung Draft covers is his interest in a concern group that keeps an eye over fringe Christian groups, and his involvement with the Group as a result of helping five persons (whose names are anonymised) who are former members of the Group.  The bulk of the Yeung Draft is about his contacts with “A”, “B”, “C”, “D” and “E”, some of whom he has already lost contact.

103. Mr Lam submitted the Yeung Draft was highly objectionable because: (a) the contents were purely hearsay, (b) the allegations therein were general and non-specific, lacking in details, (c) the names of the “complainants” were not disclosed such that it would be impossible for the Ps to be certain about who they might be and to adduce evidence in rebuttal, and (d) the statement was of very low probative value, but highly prejudicial and difficult to rebut.

104. Mr Ho submitted that the identity of some of “A”, “B”, “C”, “D” and “E” cried out from the circumstances described by Yeung.  But I see no reason why the Ps should be called upon to guess who they are when the Ds themselves are unwilling or unable to disclose their identity.  As Mr Ho rightly conceded, Yeung is not entitled to the protection of the “newspaper rule”.  I bear in mind that the Ps have asserted malice in rebuttal of the Ds’ defences, and the Ds should not be allowed to rebut malice on incomplete evidence.  In my view, it is unfair and prejudicial for the Ps to face such evidence at trial.  In the circumstances, the third and fourth sentences of paragraph 12, paragraphs 13-16, second sentence of paragraph 19 and paragraphs 20-48 of the Yeung Draft are disallowed. 

(e)  AD Draft

105. Mr Ho submitted that in light of the information and materials from Ngai, Tam, Pang, Tse and Yeung, it would be necessary to amend the Defence.  He explained that the majority of the intended amendments related solely to the inclusion of additional particulars in paragraph 10 to properly reflect the Ds’ case, and the intended amendments at paragraph 12 were made to include the defence of qualified privilege.  In relation to the intended amendments in paragraph 16, ie the plea denying Ps’ entitlement to relief in which the Ds expressly asserted the Ps had no or poor reputation together with a causation point, such intended amendments were made in light of the insertion of the new particulars pleaded in paragraph 10.  Mr Ho submitted that such amendment was necessary in that, in the event the court accepts the Ds’ evidence, but for whatever reason find that the Article is still defamatory, then the Ds can rely on those matters if the question of quantum arises.  Mr Ho submitted that the intended amendments, thus clarified, were simple and straightforward, and not at all controversial.

106. On the other hand, Mr Lam submitted the proposed new particulars of facts and matters relied upon for the defence of justification in paragraph 10(3) of the AD Draft allegedly supported by the Ngai Draft were objectionable in that (a) the Ds were trying to inappropriately plead evidence rather than facts, (b) the allegations in paragraph 10(3)(v)-(ix), (xiii) and (xvi)-(xx) therein went beyond the scope of the Article, (c) the allegations entered into the realm of Christian theology and belief, (d) the allegations concerning  “換妻” and “配婚”  went beyond the scope of the Article and involved at least another couple Pong/Tam not mentioned in the Article, the Defence and the exchanged witness statements, and (e) the allegations concerning “換妻”, “配婚” and the exercise of control over the private lives of members were impermissible attempts to plead matters and introduce evidence contrary to admissions in the Defence without leave being granted for withdrawal of such admissions.

107. I have dealt with and rejected most of the above objections raised by Mr Lam in Part IX(a) above.  Having carefully considered the AD Draft, I am not persuaded the new particulars are matters of evidence.  They are material facts that the Ds rely upon (and therefore should plead) to establish the defences of justification and fair comment.

108. Mr Lam further complained that the proposed new particulars of facts and matters relied upon for the defence of justification in paragraph 10(1) of the AD Draft allegedly supported by the Yeung Draft were objectionable in that (a) the Ds were trying to inappropriately plead evidence rather than facts and (b) the Yeung Draft contained non‑specific and highly unfair and prejudicial hearsay evidence of low probative value that ought not to be admitted.

109. Having disallowed certain parts of the Yeung Draft, the corresponding parts of the proposed amendments in sub-paragraph (1) under “Particulars of facts and matters relied upon in support of plea of justification” in paragraph 10 of the AD Draft, ie the second sentence in the preamble and sub-sub-paragraphs (ii) and (iii) thereof, are also disallowed.

110. I am persuaded that having thus pared down the proposed new witness evidence and new amendments to pleadings, the Ps would not suffer undue prejudice by their introduction if time were allowed for the Ps to put forward a legitimate response.

(f)  Further discovery

111. In relation to the Ds’ application for leave to serve a Supplemental List of Documents, the new discovery are mainly emails annexed to the Ngai, Tam and Pang Drafts that support the allegations by Ngai, Tam and Pang in relation to the Group.  Chan’s 1^st Aff claimed that the new discovery would not cause prejudice to the Ps since the emails which Ngai, Tam and Pang disclosed were all along in the Ps’ possession which they had not made discovery until the Ps’ Supp List filed on 19 June 2014, which list they had subsequently withdrawn.  In my view, if the new witness evidence is to be allowed, there is no reason to disallow the new discovery (save and except that annexure 1 to the Ngai Draft should be disallowed).  I believe that quite a few of the emails have been disclosed as part of the Discovered Emails in August 2012.

(g)  Impact on the trial

112. Mr Lam submitted that an adjournment of the trial would be grossly unfair to the Ps who had been ready for trial since setting down in February 2013, and it would increase their anxiety if their reputation could not be cleared for another long spell.  It is true that the procedural rules made clear there must be exceptional circumstances for the court to entertain late applications that have impact on the trial.  In my view, the particular circumstances of the case before me have conspired to produce an exceptional situation in which the court feels that justice can only be served by allowing late alteration of the litigation goalposts.  I pause here to say that such situations will be rare after the CJR, and litigants should not assume that the courts will smile kindly on late applications in another case.

113. At first, Mr Ho submitted that with the trial about two months away, there would be enough time for the Ds to respond to the new matters and the trial dates would not be lengthened.  He suggested that since the matters raised in the new witness evidence were not entirely new points and they merely supplemented the Ds’ originally pleaded case, he imagined the Ps would put in a bare denial.

114. I am not persuaded by such arguments.  The Ds’ certificate of time estimates for trial by Mr Ho filed on 24 June 2014 indicated that a total time of 34.25 hours would be required for the Ds’ case at trial, ie 6.85 days and not 5.5 days as suggested by Mr Ho. Mr Lam’s estimate before taking into account the new witness evidence and new discovery was 6.4 days.  On this conservative basis, the time presently allotted for trial would be fully used up.  But that does not even take into account the time that will be required for the Ps to lead further evidence at trial to respond to the new pleadings/evidence/discovery by the Ds. In my view, the original estimate of 14 days for the trial is no longer realistic.  I also see no reason why the Ps should limit their response to the new matters to a bare denial.

115. Mr Ho urged the court to maintain the trial dates and insofar as necessary the Ds would concede on oral opening and closing submissions and instead put in detailed written submissions.  It was said that such saving of time would be sufficient for the Ps to deal with the new matters at trial, and in the unlikely event that the matters needs to be adjourned part-heard, it will be open to the court to make an adverse costs order against Ds if it is just and fair in the circumstances.

116. Mr Lam submitted the Ps would require time to respond to the new matters.  He asked for 42 days to file/serve further Supplemental List of Documents and witness statements in reply, 42 days to file/serve Amended Reply, and at least 60 days to obtain an opinion from an expert in theology in answer to the theological opinion attached to the Ngai Draft.  I need not be concerned with the request for expert opinion since I have disallowed annexure 1 to the Ngai Draft.

117. Mr Lam explained that the most time-consuming exercise would be to go through the Ps’ email records to locate emails relevant to or associated with those relied upon by Ngai, Tam, Pang and Tse in order to give a full/true picture of what had transpired amongst the parties at the material time.  The Ps also needed time to locate relevant witnesses, to persuade them to assist, and to compile witness statements which cannot be finalised until the relevant documents/emails are unearthed since the witnesses may need to refer to such documents in their witness statements in reply.  At the Hearing, Mr Lam said the Ps had already made some efforts, but realistically time would be required to locate witnesses and secure their cooperation, and to pull out documents from archived records.  Mr Lam expected the length of trial to be extended for at least 4-5 days depending on the number of additional witnesses that the Ps may be able to locate and enlist.

118. In my view, there is no help for it but for the trial to be aborted.  There is no merit to the argument that because the Ps were previously privy to the emails, documents and events canvassed in the Ds’ new witness evidence and new pleadings they will suffer no prejudice.  Prior to the Ds’ applications, the Ps had no idea that the Ds would deploy such evidence/documents at trial and they should not be called upon to answer those matters under the shotgun when they already have their hands full in the run up to the trial.  Fair opportunity and reasonable time should be given to them to gather witness and documentary evidence to address the new matters raised.  Whilst the court accepts that taking into account all the circumstances in the balancing exercise, justice is served by allowing the Ds to put in new matters for a just determination of the true dispute between the parties, justice cannot be served by requiring the Ps to respond during the brief time window before trial (being in mind that time must also be allowed for preparing opening submissions and trial bundle).  It must not be forgotten that five new witness statements are to be adduced and new lines of defence are taken.  For all of the above reasons, I have at the Hearing vacated the trial.

X.  CONCLUSION

119. To ensure that there will be tightened case management control by the court with a view to bringing this case forward to trial again as soon as possible, I direct that:

(a) all CMCs, direction hearings and interlocutory applications in the present action be docketed to be heard and/or dealt with by Master S Kwang who shall be at liberty, where appropriate, to refer any matter or application to be heard by a judge;

(b) the present action be adjourned for CMC before Master S Kwang on 21 January 2015 at 3:00 pm with half hour reserved;

(c) where appropriate, both parties may by consent summons or either party may by summons apply to Master S Kwang to expedite the CMC in (a) above with reasons on affidavit.

120. In respect of the Ps’ 3^rd and 4^th Summonses, I grant the following orders:

(a) leave be granted for the Ps to amend the Ps’ 3^rd Summons by replacing the 2^nd Draft Ps’ Supp List annexed to the Ps’ 3^rd Summons with the 3^rd Draft Ps’ Supp List annexed to Ps’ 4^th Summons;

(b) the Ps shall within 7 days from today file and serve the Amended Ps’ 3^rd Summons;

(c) within 14 days from today, the Ps shall serve on the Ds copies of the Printouts;

(d) within 7 days thereafter, the Ds shall write to the Ps to confirm whether they object to the Amended Ps’ 3^rd Summons;

(e) if the Ds do not object to the Amended Ps’ 3^rd Summons, the parties shall within 7 days thereafter file Consent Summons addressed to Master S Kwang for final disposal of the Amended Ps’ 3^rd Summons;

(f) if the Ds object to the Amended Ps’ 3^rd Summons or fail to write to the Ps within the prescribed deadline in (d) above, the Ps shall within 7 days of the deadline in (d) above apply to restore the Amended Ps’ 3^rd Summons for 3-minute hearing before Master S Kwang;

(g) there be a costs order nisi that costs of the Ps’ 3^rd Summons be reserved;

(h) there be a  further costs order nisi that costs of and occasioned by the Ps’ 4^th Summons be paid by the Ds to the Ps summarily assessed at $800 to be paid forthwith.

121. In respect of the Ps’ 2^nd Summons, I have at the Hearing granted leave for the Ps to amend the SoC (a) in the manner marked in red as per the ASoC Draft, and (b) by adopting the certified English translation of the Words in the Article.

122. In respect of the Ps’ 2^nd Summons and the Ds’ 2^nd Summons, I grant the following orders:

(a) leave to the Ds to amend the Defence (1) in the manner marked in red as per the AD Draft annexed to the Ds’ 2^nd Summons save and except that the sentence “Yeung met at least five former members of the Group.” and sub-sub‑paragraphs (i) and (ii) in sub-paragraph (1) under “Particulars of facts and matters relied upon in support of plea of justification” in paragraph 10 thereof are disallowed, and (2) with amendments consequential to the Amended SoC filed on 10 September 2014;

(b) the Ds do file and serve their Amended Defence within 14 days from today;

(c) leave to the Ps to file and serve Amended Reply within 42 days thereafter;

(d) costs of and occasioned by the Ds’ amendments to their Defence pursuant to (a)(1) above be to the Ps to be taxed if not agreed;

(e) costs of and occasioned by the Ps’ amendments to their SoC under paragraph 121 above, including costs occasioned by the Ds’ amendments to their Defence pursuant to (a)(2) above, be to the Ds to be taxed if not agreed.

123. In respect of the Ds’ 1^st and 3^rd Summonses, I grant the following orders:

(a) leave be granted to the Ds to file and serve Ngai’s supplemental witness statement dated 18 June 2014 as per the copy annexed to the Ds’ 1^st Summons save and except that the third and fourth sentences of paragraph 3 (ie “請見本補充證人陳述書附件一 …… 成為香港的例子”), paragraph 9 and the 1^st annexure thereof shall be redacted and disallowed within 14 days from today;

(b) leave be granted to the Ds to file and serve Tam’s witness statement dated 18 June 2014 as per the copy annexed to the Ds’ 1^st Summons within 14 days from today;

(c) subject to (d) below, leave be granted to the Ds to file and serve Pang’s witness statement dated 18 June 2014 as per the copy annexed to the Ds’ 1^st Summons within 14 days from today;

(d) unless the Ds do within 35 days from today discover and disclose a copy of the witness statement given by Pang to the police as referred to in the fourth sentence of paragraph 37 of Pang’s witness statement dated 18 June 2014, the last three sentences of paragraph 37 of such witness statement (ie “2011年的時候 …… 我所有野都無哂”) shall not be adduced or be admissible as evidence at trial notwithstanding the leave granted in (c) above;

(e) leave be granted to the Ds to file and serve Tse’s witness statement dated 24 June 2014 as per the copy annexed to the Ds’ 3^rd Summons save and except that the second sentence of paragraph 6 (ie “他提供了一些 …… 給呂先生”) and paragraphs 43 and 44 thereof shall be redacted and disallowed within 14 days from today;

(f) leave be granted to the Ds to file and serve Yeung’s witness statement as per the draft copy annexed to the Ds’ 3^rd Summons save and except that the third and fourth sentences of paragraph 12 (ie “We were asked to help …… “A” and her son”), paragraphs 13 to 16, second sentence of paragraph 19 (ie “From time to time …… Heavenly Kingdom of Truth” ) and paragraphs 20 to 48 thereof shall be redacted and disallowed within 14 days from today;

(g) leave be granted to the Ps to serve additional and/or supplemental witness statement(s) as to fact in reply within 42 days from today;

(h) leave be granted to the Ds to file and serve Supplemental List of Documents within 14 days from today to make discovery and disclose the documents annexed to the witness statements in (a), (b) and (c) above save and except that the 1^st annexure to Ngai’s supplemental witness statement dated 18 June 2014 redacted as aforesaid is disallowed;

(i) leave be granted to the Ps to file and serve further Supplemental List of Documents in reply within 42 days from today;

(j) there be a costs order nisi that the Ds do pay to the Ps costs of and occasioned by the Ds’ 1^st and 3^rd Summonses to be taxed if not agreed.

124. Since the trial has been aborted due to the late applications by the Ds, I see no reason why the Ds should not bear the costs thrown away.  I therefore grant a costs order nisi that the Ds do pay the Ps costs thrown away as a result of vacating the trial.

125. At the close of the Hearing, Mr Lam indicated to the court that the Ps might reconsider the width of the Ps’ allegations against the Ds with a view to drawing a more focused claim against the Ds.  This caused Mr Ho some concern because the Ds proposed the new witness evidence and amendments to pleadings to meet the Ps’ existing case.  If the Ps were to change their stance, different considerations might apply and it might well have consequences in costs.  In the end, Mr Lam chose to stand on the Ps’ existing pleadings.

126. On this matter, this court made two remarks at the Hearing.  First, whilst it is always a matter for the Ps to decide how best to present their claim, and to determine the ambit of their claim (eg they can choose whether to sue on all or some of the alleged defamatory words).  It must be remembered that the defences that may be raised (eg the defence of justification) depend very much on the ambit of the claim, and it is the particulars in support of the justification defence that prescribe the ambit of the evidence.  A claimant with a wide claim also bears the burden of establishing the defamatory meaning of each and every allegation; it makes a lengthy and costly trial, especially if some of the allegations fail.  Secondly, should the Ps decide in due course to reconstitute their claim in a way that renders redundant the new witness and documentary evidence and the new amendments to pleadings introduced by the Ds, there may well also be costs consequences which the Ps will have to face.  But that risk in respect of costs should be considered against the wider implications on costs at trial as discussed above.

127. Further, the learned Master should take note that the previous case management directions have not included a direction for agreed/certified English translation of documents.  The trial judge may be handicapped in dealing with Chinese special or biblical terms referred to in various emails and witness statements.  In the shortness of time between the 1^st PTR and the trial, I have asked for the Glossary to be prepared as an aide to the court in the absence of proper English translations of documents. It is not the function of a bilingual trial judge to undertake translation of special or technical words.  Rather, it is the duty of the parties to provide proper English translations since the eventual trial will be conducted in English although witness evidence may (subject to leave of the court) possibly be taken in the punti language.

128. The Glossary is intended to a bilingual translation of special, technical or biblical terms or words to facilitate the conduct of the trial.  It is not intended to be an avenue for the parties to adduce evidence without leave by providing an explanation of such biblical terms or words.  Now that the trial is aborted and the case is to be further case managed before being set down for trial again, the learned Master should carefully consider whether English translations of the relevant documents are required.  If not, careful thought should be given as to how a comprehensive and useful Glossary can be properly prepared and agreed before the case is set down for trial.

129. It is premature for this court at this stage to consider the revised index of the trial bundle.  The learned Master should carefully consider how best to collate the documents in the trial bundle to facilitate the trial.  There should be a separate folder for all email documents, and duplicated emails should be removed to avoid confusion.  Thought should be given as to whether the emails can be grouped under useful headings, and if not whether they should be listed chronologically.  Since the emails form the core documents in this case, the learned Master should review the bundle of emails (and not just the index thereof) before setting down for trial.