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

FACV No. 5 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 5 OF 1999 (CIVIL)

(ON APPEAL FROM CACV No. 178 OF 1998)

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J U D G M E N T

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Chief Justice Li:

1. I have read the judgment in draft of Mr Justice Litton PJ and also that of Sir Anthony Mason NPJ which set out his reasons with respect to the defence of fair comment. The issue of fair comment in this appeal was a difficult one. For the reasons which they give, I agree that the trial judge's decision that the defence of fair comment was made out should be restored. I agree also with the judgment of Mr Justice Litton on the other issues and the orders he proposes.

Mr Justice Litton PJ:

Introduction

2. This appeal concerns a libel suit brought by newspaper publishers against a television presenter (1st defendant) and the Director of Broadcasting (2nd defendant).

3. The facts are these: On 11 March 1995 Radio Television Hong Kong had a programme on a Cantonese television channel called "傳媒春秋" (Media Watch). It was co-hosted by the 1st defendant and a Mr Mak Shing Fai. This was the first episode of a "new season" of the programme focussing on the activities of the news media.

4. In introducing the programme the 1st defendant said:

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

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

5. I will refer to this as "the first statement".

6. This statement was followed by Mr Mak saying that not only were there many disputes, but there had been a number of cases pursued legally. He said one day he opened the Oriental Daily News (a newspaper published by the 2nd plaintiff) and found three such cases reported on one page. The footage of various newspaper clippings was then shown on screen, with a voice-over by the 1st defendant recounting a number of incidents in which the Oriental Daily News was suing or threatening to sue others in the news media. Among the matters related by the 1st defendant was the following: The 2nd plaintiff ("Oriental") had, a few days before, published a notice complaining of an item in another newspaper, the Hong Kong Economic Times, to the effect that a reporter facing a fraud charge was at the time of the alleged crime an Oriental Daily News employee. Oriental threatened to institute legal proceedings. Subsequently the Hong Kong Economic Times had to publish a correction to the effect that the reporter was, at the time of the incident, not an Oriental Daily News employee, though he did become such an employee after the incident. An apology was issued.

7. There was then a discussion between the 1st defendant and Mr Mak. The 1st defendant said a features writer had felt frightened after receiving a solicitors' letter concerning a programme called the "Pearl Report" in which he had taken part: This programme concerned an English language newspaper, the Eastern Express, published by the 1st Plaintiff ("Eastern"), a company in the Oriental Press Group. Mr Mak then remarked on the number of legal actions going on and asked if there was an attempt to monitor the media by means of legal process.

8. Then the 1st defendant said:

"Uh法律吓，你傳媒梗係要守法嘅啦，咁但係吓吓人地即嘅係咁倚提到吓你，你都話好唔滿意，話要告你，咁即係好似想嚇人叫人收聲咁喎。"

"Uh, the law, you media must abide by the law, but if every time other people mention about you only incidentally you then say you are not satisfied and want to sue, this is akin to frightening people into keeping their mouths shut".

9. The plaintiffs alleged that this statement (except for the opening words "Uh, the law, you media must abide by the law") was defamatory.

10. I will refer to this as "the 2nd statement".

11. The plaintiffs commenced legal proceedings in June 1995 claiming damages for libel. They complained of defamatory imputations contained in both statements. The trial judge (Yuen J) by her judgment dated 23 April 1998 found that the 1st statement was not defamatory. As to the 2nd statement the judge found that the words complained of were defamatory of Oriental, but as they constituted in substance fair comment on a matter of public interest, Oriental's claim for damages was dismissed. The judge found that the 2nd statement did not refer to Eastern. Accordingly both plaintiffs' claims were dismissed.

12. On appeal to the Court of Appeal, both plaintiffs succeeded as regards the 2nd statement, though they failed in seeking a reversal of the judge's finding in relation to the 1st statement. The Court of Appeal (Liu and Leong JJA and Yeung J) held, reversing the judge, that the defence of fair comment failed. It also held that the words complained of referred to both plaintiffs and awarded damages as follows: $20,000 to Eastern and $80,000 to Oriental.

13. The defendants, being dissatisfied, appeal with leave to this Court seeking a restoration of Yuen J's order.

The defamatory imputation

14. This piece of litigation focusses on a few words said in the course of a half-hour television programme, on a subject of considerable public interest. Whilst the offending words were uttered in accordance with a script prepared by the staff of Radio Television Hong Kong beforehand, they were nevertheless words used in a colloquial sense. Ordinary people in everyday speech do not craft their language as if they were lawyers drawing up a legal instrument, nor would their listeners understand them in this way. People often use words loosely. Words used in everyday speech often do not convey precise meanings; and the sense can to some extent be affected by how the emphasis is placed in articulation.

15. The judge, in considering how the ordinary television viewer would consider the 1st statement, concluded that the words complained of indicated nothing more than a reference to a trend of parties in a fiercely competitive business environment treading on each other: This was not imputation of improper behaviour and the 1st statement taken as a whole was not defamatory. But as regards the 2nd statement the imputation was not simply that Oriental was prone to threaten legal proceedings whenever it was mentioned, even incidentally, but also that it appeared to want to frighten people into keeping their mouths shut. The judge rejected defence counsel's submission that Oriental's action simply had the effect of frightening people into silence and there was no imputation of the purpose of the action. The judge said this disregarded the word "想" "want to" in the phrase. She said it was immaterial that the defamatory imputation was conveyed by suggestion, in a hypothetical or question form (by the introductory words "咁但係" "But if ..."). She also said that in arriving at her conclusion she had taken into account the tone of voice and the facial expression of the maker of the statement in ascertaining the message conveyed.

16. These are well-reasoned and clearly articulated findings of fact.

17. Mr Robert Tang SC, counsel for the defendants, submits that the meaning conveyed to the general viewer by the offending words would have been nothing more than this: If someone threatened to sue whenever criticized, however incidentally, it would give the appearance of wanting to frighten others into silence by the use of such bullying means. In other words, the entire statement was nothing more than supposition and comment and the judge was wrong to have found a defamatory imputation. Mr Pow, junior counsel for the plaintiffs, argues that this would give a stilted meaning to the words "咁但係" "but if".

18. This demonstrates the fluidity of everyday language. Both shades of meaning are possible. The trial judge had carefully weighed the meaning of the words complained of, had identified the "sting" of the imputation in those words and found them defamatory: That is to say, would tend to lower Oriental in the estimation of ordinary people viewing the television programme. This was essentially a question of fact. In these circumstances it would take a much stronger case than this for this Court to come to a view different from that of the judge: Particularly where, on this issue, the intermediate appellate court has come to the same conclusion as the judge.

19. I turn then to the defence of fair comment.

Defence of fair comment

20. It is a defence to an action for libel that the words complained of, though derogatory of the plaintiff, are fair comment on a matter of public interest. It is a matter of balance. There is a public interest in the airing of views honestly held on matters of general concern even if those views be prejudiced or exaggerated. On the other hand, one cannot go too far and a defendant actuated by malice cannot rely on the defence.

21. How then does the defence of fair comment arise in the present case? And how did it fail in the Court of Appeal? It is necessary to revert to the beginning.

22. The judge in considering this issue first identified the comment as pleaded by the defendants as fair comment in their defence. It was simply this: that "the plaintiff appeared to want to frighten others into silence". This was a comment on Oriental's behaviour as identified in the first part of the statement: "... if every time other people mention about you only incidentally you then say you are not satisfied and want to sue ... ". This, in turn, was an observation on, and a reference to, the various episodes shown in the voice-over.

23. Plainly, if "every time" is to be taken literally, and the defendants were able to point to only one occasion when Oriental had acted in the over-sensitive and bullying way as suggested in the statement, then the comment on its behaviour could be said to be unfair. But if the words "但係吓吓" "but if every time" were to be taken as a figure of speech, and the first part of the statement were understood as no more than an imprecise comment on the footage of the various clippings shown in the voice-over, then the question must still be asked: Was the comment fair? A comment can hardly be fair if there was no substructure of fact to justify it. But where there are some facts underpinning the comment, the court must then look to those facts - the weight and substance of those facts - to decide the ultimate question: Was the comment fair?

24. The episode found by the judge as justifying the comment was the Hong Kong Economic Times report of the criminal case referred to earlier in which the Oriental Daily News was mentioned 3 times. The only mistake in that news story was as to the time when the accused was an Oriental Daily News reporter. The prosecution case was set out in some detail. The description of the accused in that case as "a former reporter of the Oriental Daily News" was accurate: The error was in saying that he was such a reporter at the time of the alleged crime. For my part, in reading that article as a whole, I would be inclined to agree with the judge that the reference to Oriental was "incidental", for the thrust of the article was on the activities of the accused person back in June 1992; the identity of the accused person's employer at that time was not relevant to the charges he faced. The article did not suggest otherwise. But that is not the real point as far as this appeal is concerned. The question ultimately for the trial court to decide was simply whether the comment that Oriental appeared to want to frighten people into silence was fair. Opinion may reasonably differ as to whether the reference to Oriental in that article was more than "incidental". On the assumption that Oriental had been seriously defamed by the reference to the accused as a "former reporter of the Oriental Daily News" in that article, then the steps it took against the publisher of that article could hardly be said to show over-sensitivity or a bullying tendency. But if the reference to Oriental was incidental, not central to the article, it could well justify the comment. This issue was one for the trial judge to resolve, and unless the view formed by her was plainly wrong on the evidence or she had misdirected herself on the law in some way, the Court of Appeal was not entitled to interfere.

The Court of Appeal

25. The Court of Appeal, in reversing the judge, took two points: (1) In that story the reference to Oriental was more than "casual" or "incidental"; (2) One incident alone could not be "regarded as evidence of a persistent attitude describable by the words 吓吓 every time" as used by the 1st defendant in the programme.

26. As to (1) above, I disagree with the Court of Appeal, for the reasons already stated. But that is not the real point. As mentioned earlier, views may reasonably differ as to whether the reference in the article to Oriental was "incidental" "casual" or something more than that. It was essentially a matter for the trial judge to resolve.

27. As to (2) above, the Court of Appeal said that by the use of the words every time in the offending passage, it "focussed on time", and since there was only one isolated incident found by the judge as the factual foundation for the comment, the defence of fair comment could not succeed. This was, with respect to the Court of Appeal, to take the words "吓吓" "every time" far too literally. The statement was in a sense rhetorical and was not, as the Court of Appeal said, "focussed on time". It is of some significance that in their statement of claim the plaintiffs, whilst alleging the most damaging sense which the words complained of could bear, did not plead the meaning given to those words by the Court of Appeal.

28. But all this is beside the essential point. The question as to whether the pleaded comment was fair is not reached simply by numbers. The weight and substance of the underlying facts on which the comment was based had to be weighed. In this regard, the judge said:

"Secondly, there is a sufficient substratum of supporting fact for the comment. I have found that the Hong Kong Economic Times' report (containing an error only in the time of the accused reporter's employment with the Oriental Daily News) was indeed a matter where the Plaintiff was referred to only incidentally, and the Plaintiff did voice its dissatisfaction and reserve its right (in its notice of 6 March 1995) to pursue the matter against the Hong Kong Economic Times by legal means over that error. As I have found, a reasonable viewer would regard such an assertion of reservation of right to sue as a threat of legal proceedings. These supporting facts were true. This incident was one of the events expressly referred to in the voice-over prior to the 2nd statement, and would be clearly understood by the reasonable viewer to be one of the matters on which the comments was based."

29. As to the ultimate question: Was the comment "fair": the judge said that it was "cynical and even possibly prejudiced against the plaintiff, but it was a comment which an honest person could have made". She therefore found in favour of the defendants on their defence of fair comment.

30. In my judgment, Yuen J was entitled to reach this conclusion upon the evidence. The grounds upon which the Court of Appeal reversed her were unwarranted.

31. Mr Griffiths SC, in his submissions to us, took what might be described as a pleading point in dealing with the defence of fair comment. It is unnecessary to deal with it in this judgment. In neither of the courts below did the issue turn on a pleading point. This is the type of case where the actionable harm done to the plaintiffs, if there be any, turned on what has been called an "impressionistic view" formed in the mind of the average viewer of the television programme. Finely chewing over the words used, matching them against the pleadings, tend more to distort the issue than to elucidate it.

Did the statement refer to the 1st plaintiff?

32. The offending statement did not expressly refer to either of the two plaintiffs. It is therefore necessary to turn to the newspaper clippings shown on television and to what the 1st defendant said in the voice-over to decide whether the ordinary viewer would have come to the view that Eastern was referred to. It was the publisher of the newspaper Eastern Express, an English language newspaper. The entire television programme was in Cantonese. There were two episodes, among the 5 referred to in the voice-over, where the Eastern Express newspaper was mentioned. But the publisher was never named and in the episode relating to the newspaper's editor, Mr Vines, the voice-over named the Oriental (the parent company of Eastern) as the plaintiff in the action for defamation. And in relation to another episode involving the Pearl Report (an English language programme shown on TVB), when an apology was tendered, TVB apologized to Oriental, even though it was the Eastern Express newspaper which was referred to in the Pearl Report and not the Oriental Daily News. The judge, after a careful evaluation of the evidence, concluded that Eastern was not implicated in the defamatory statement and dismissed the case against it on this ground. The judge found that the offending statement referred to Oriental because it was mentioned several times in the voice-over; it was "the high-profile entity known to be behind the Eastern Express". These are findings of fact arrived at by a trial judge after a careful examination of the evidence.

33. The Court of Appeal, in over-turning the judge's finding, referred to a number of English cases: Hayward v. Thompson [1982] 1 QB 47, Knupffer v. London Express Newspaper Ltd [1944] AC 116, Hough v. London Express Newspaper Ltd [1940] 2 KB 507 and to passages in Gatley on Libel 9th edition paragraph 7.1: the purpose of which escapes me. I have found it difficult to determine the grounds upon which the trial judge's findings were set aside. At one point in Liu JA's judgment (with which Leong JA and Yeung J concurred) he appears to say that because Eastern was a member of the Oriental Press Group and the group was referred to, this pointed to the conclusion that Eastern was identified in the statement. If this was what the learned Justice of Appeal meant, it was plainly an error.

34. It is unnecessary to analyse the Court of Appeal's judgment on this issue any further because, for the reasons I have given earlier, the defendants' appeal must be allowed on the defence of fair comment. It is sufficient to say that Yuen J's findings of fact on the issue of identification of Eastern should have not been disturbed.

Conclusion

35. I would allow the defendants' appeal and restore the trial judge's order, with costs to the defendants here and below.

Mr Justice Ching PJ :

36. I have had the advantage of reading in draft form the judgments of Litton PJ and Sir Anthony Mason NPJ. I agree that this appeal should be allowed for the reasons they give. I add only the following. In the course of the appeal we were informed that at trial the parties left it to Yuen J, a bilingual Judge, to decide upon whether or not the certified translations of the passages of which complaint was made were correct. That is not a practice to be recommended. It is for the parties to challenge a translation if they are of the view that it is inaccurate and, in that case, to put forward what they say is the correct version.

Mr Justice Bokhary PJ:

37. I associate myself with Mr Justice Ching PJ's observation in regard to translations.

38. I, too, would allow this appeal in regard to both respondents. There is only one issue of difficulty in the appeal. It is whether the Court of Appeal was right to reverse the trial judge's decision that the defence of fair comment had been established in answer to Oriental's claim.

39. As far as Eastern is concerned, I have no difficulty in concluding that the Court of Appeal was wrong to reverse the trial judge's finding that there had been no reference to Eastern. That finding by the trial judge was, in my view, plainly right.

40. Leaving fair comment to one side, the other grounds on which the appellants attack the Court of Appeal's decision in favour of Oriental involve challenging concurrent findings of fact. And while not abandoning such grounds, Mr Robert Tang SC for the appellants very sensibly recognized and acknowledged his great difficulty in showing that this is one of those rare and exceptional cases in which this Court would disturb concurrent findings of facts. In my view, this case is not such a case.

41. What is left, therefore, is the issue of fair comment. I have not found this issue an easy one. But having considered what Sir Anthony Mason NPJ has added to what Mr Justice Litton PJ has said, I find myself in agreement with them and the other members of the Court that the trial judge's decision on fair comment ought not to have been disturbed by the Court of Appeal, and ought now to be restored by us.

Sir Anthony Mason NPJ:

42. I agree with so much of the reasons of Mr Justice Litton PJ as relate to the conclusions that the second, but not the first, statement complained of conveyed a defamatory imputation and that it defamed the second, but not the first, respondent. I agree also with the conclusion that the defence of fair comment was made out.

43. In order to express my reasons with respect to the defence of fair comment, I need to supplement the statement of facts contained in the judgment of Mr Justice Litton PJ.

44. The structure of the programme "Media Watch" is not without significance. The relevant and principal part of the programme began with the so-called first defamatory statement

"Recently, everyone might notice that solicitors' letters are flying everywhere among the media, people will tend to think whether there is now a trend of trampling on each other."

There followed the statement by Mr Mak

"Yes. Not only are there many disputes but there are quite a number of legal actions as well. The other day I read the "Oriental Daily News" and surprisingly, there were 3 such cases on the same page."

45. This statement was the precursor of the voice-over segment which was a substantial section of the programme. In that segment, the narrator (the first appellant) mentioned five separate incidents, including, it seems, the three cases referred to earlier by Mr Mak. Of the five incidents, four related to the Oriental Press Group the publisher of the "Oriental Daily News" and the owner of Eastern Express Publisher Ltd. (the first respondent) which in turn published the "Eastern Express" newspaper. Of the four incidents involving the Oriental Press Group, two were instances reported in the "Oriental Daily News", one being an alleged incorrect account published in the "Hong Kong Economic Times" of an interview with Louis Cha, the other being a misreport in the same publication that a journalist charged with fraud was working at "Oriental Daily News" when the offence was committed. The narrator stated that the Oriental Press Group claimed that it reserved the right "for legal actions" in relation to these two incidents. According to the narrator, "Hong Kong Economic Times" later published a notice of correction stating that the journalist was working at another newspaper at the time of the offence and began to work at "Oriental Daily News" later. "Hong Kong Economic Times" later apologised for the errors and in the same issue provided "coverage" of Oriental Press Group suing the ex-editor of "Easter Express" for defamation, this being the third incident involving Oriental Press Group.

46. The final incident related to a coverage of "Eastern Express" in an episode of Pearl Report broadcast on Pearl TVB. According to the narrator, TVB published a half-page notice of apology in several newspapers and admitted that part of the content about "Eastern Express" was not supported by the facts. The narrator stated that before publication of the apology, the "Oriental Daily News" provided "coverage" of TVB. The narrator said that "Hong Kong Economic Journal" also published an apology for quoting part of the "Pearl Report".

47. At the end of the voice-over segment, the first appellant, after remarking that a columnist who commented on the "Pearl Report" had received a solicitors' letter, said "how frightening". Mr Mak then exclaimed.

"Wow, so many legal actions, is it that legal process has to be mobilised to monitor the media?"

The programme then concluded with the first appellant making the second statement complained of as defamatory, namely

"but if every time other people mention about you only incidentally you then say you are not satisfied and want to sue, this is akin to frightening people into keeping their mouths shut".

That statement purported to draw conclusions from the incidents narrated in the voice-over segment. First, there was the suggestion that whenever the Oriental Press Group was mentioned, even if only incidentally, it wanted to sue. Then there was the comment that this was tantamount to frightening people into silence.

48. The primary judge found that the "sting" of the concluding statement

"was not only that the Plaintiff was prone to threaten legal proceedings whenever it was mentioned, even incidentally, but also that the Plaintiff wanted to frighten people into keeping their mouths shut".

The primary judge re-stated this formulation of the imputation on other occasions in her judgment, without departing from the substance of it.

49. The judge rejected the defence of justification because the appellants' plea of justification did not extend to the whole of the "sting" as found by the learned judge, namely the concluding words ("that the Plaintiff wanted to frighten people into keeping their mouths shut").

50. Having rejected justification, the judge upheld the defence of fair comment, a view with which the Court of Appeal disagreed. In considering the issue of fair comment, I accept that the English translation of the words spoken by the first appellant included the expression "every time" or "whenever" and that the imputation must be considered on this footing.

51. In so far as the first part of the concluding comment rested on the use of that expression, it appeared to convey that it was a conclusion drawn from the instances mentioned in the voice-over. Of the instances involving the Oriental Press Group, the primary judge found that only one involved the Group incidentally or casually and that was the incident in relation to the report of the individual charged with fraud. It can be said that the reference to his being an employee of "Oriental Daily News" was not only incorrect but was given undue prominence and resulted in the name of that newspaper being featured in the headline, alongside another sensational headline, in the report in the "Hong Kong Economic Times". To give this degree of prominence to the "Oriental Daily News" in the report of a charge of fraud with which it had no connection at all was not an exercise in responsible journalism. However, in my view, when the report is read in its entirety, the learned judge was correct in holding that the mention of the "Oriental Daily News" was incidental to the thrust of the substance of the report. The reader of the report would not have gained an impression that the newspaper was a party to the alleged fraud.

52. In order to make out the defence of fair comment the Appellants had to show that (i) the defamatory imputation was comment; (ii) the comment was based on true facts; (iii) the comment was fair; and (iv) it was on a matter of public interest. It must also appear that the publication was not actuated by malice. No question arises as to the public interest requirement or malice. It is not in dispute that the publication was on a matter of public interest and malice was not raised.

Comment or statement of fact?

53. The question whether something is a statement of fact or a comment is, in many situations, one of great difficulty. The principal problems arise, as Hammond J pointed out in Awa v Independent News Auckland Ltd [1995] 3 NZLR 701 at 705-706, when the defamatory imputation ascribes bad motives to a plaintiff. At times there has been a tendency to regard statements ascribing bad motives or dishonest conduct to a plaintiff as statements of fact rather than comment so as to require a defendant to prove justification.

54. Here, however, it is clear from the structure and content of the programme that the concluding remarks by the first appellant constituted comment, not a statement of fact. The first part of that comment represented a conclusion drawn from the instances previously discussed and the last part of the comment was an inference drawn from the first part of the comment. An inference or deduction from facts may properly be regarded as comment (see Gatley on Libel and Slander 9th ed, 1998, para. 12.10; Kemsley v Foot [1952] AC 345 at 356-357).

Was the comment based on facts truly stated?

55. The comments were based on the facts narrated in the voice-over segment. The judgments of the courts below proceed on the footing that those facts were truly stated. Indeed, it was not argued on the appeal to this Court that those facts were incorrect or were mis-stated in any relevant particular.

56. There is, however, the question whether the first part of the comment - the "every time" or "whenever" conclusion - should be regarded as a mis-statement of the facts on which the concluding part of the comment was based rather than a comment. Although this argument has force, it seems to me that in the context of the programme the "every time" or "whenever" inference formed part of what was an entire concluding comment. It is one of those inferences of fact which is really a comment by the person making the inference.

57. In this respect, the important point, arising from the structure of the programme, is that the viewers were able to assess the entire concluding comment for what it was worth against the background of the facts stated in the voice-over. It was not a case in which the basic facts were mis-stated so as to leave the viewer entirely at the mercy of the commentator. See Kemsley v Foot [1952] AC 346 at 356; Harper and James, Torts (1956) ed. (at p.458), cited in Awa v Independent News Auckland Ltd at 706. The viewer of a television programme does not have as much of an opportunity to assess the worth of a commentator's comment as does the reader of a printed work. But the same principle must apply to each situation.

Was the comment fair?

58. The critical question in this case is whether the comment was fair. That question turns on the relationship between the facts and the comment made upon them. The respondents make two points: first, that, in only one of the incidents was the Oriental Press Group mentioned "incidentally"; and, secondly, that once this is accepted the first part of the comment is inaccurate when it mentions "every time" or "whenever". In other words, if the fact is that, on one occasion when A was mentioned only incidentally, A sued the publisher, it may not be legitimate to say whenever A is mentioned only incidentally, A is prone to sue the publisher. It can be an error to universalize from a single instance.

59. This criticism of the first part of the concluding comment might well be fatal if the law required a comment to be "warranted". But that is not the law.

60. In Merivale v Carson (1887) 20 QBD 275, Lord Esher MR stated the question in this way :

"Would any fair man, however prejudiced he might be, or however exaggerated or obstinate his views, have written this criticism?"

Subsequently, in Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, Lord Porter said (at 461) that, in that statement "honest" should be substituted for "fair" in order to avoid any suggestion that reasonableness is required. See also Silkin v Beaverbrook Newspapers Ltd [1958] 2 All ER 516 where, in his summing-up to the jury, Diplock J. (at 518) described the expression "fair comment" as "a little misleading" and stated that a verdict for the defendant only means that

"You think that a man might honestly hold those views on the facts".

61. It was once thought that the defence of fair comment when applied to imputations of dishonest or dishonourable conduct required a higher standard of justification. It was even suggested that the comment must be a correct inference from the facts (see Hunt v Star Newspaper Co. Ltd [1908] 2 KB 309 at 320-321, per Fletcher Moulton LJ; Homing Pigeon Co. v Racing Pigeon Co. (1915) 29 TLR 389). Later cases favoured a less stringent standard such as whether the comment was fair and could reasonably be made (Stevens v British Medical Association (The Times, 8 May 1915, cited in Gatley or Libel and Slander 9th ed. 1998 para. 12.25). Subsequently, that standard gave way to the test whether the comment was such that a fair-minded man might honestly make it (Peter Walker & Son Ltd v Hodgson [1909] 1 KB 239 at 253; London Artists Ltd v Littler [1969] 2 QB 375 at 392-393, 399).

62. There are strong arguments to support the view that there should be no special rule governing fair comment as applied to the imputation of corrupt or dishonourable motives (see Gatley on Libel and Slander 9th ed (1998) para. 12.26). The existence of a special rule generates complexity and problems of line-drawing. Moreover, in a society in which there is a constitutional guarantee of freedom of expression, no narrow approach should be taken to the scope of fair comment on a matter of public interest as a defence to an action of defamation. And, in any event, it is likely that an honest person's opinion would necessarily take into account the need for added caution when an accusation of corrupt or dishonourable conduct is made.

63. In this case, however, it is unnecessary to decide this vexed question or the question whether the special rule would apply to a case such as the present. It cannot be said that the entire concluding comment is such that no person, whether fair-minded or not, could honestly hold that opinion.

64. I agree with the orders proposed by Mr Justice Litton PJ.

Chief Justice Li:

65. The Court unanimously allows the defendants' appeal and restores the trial judge's order, with costs to the defendants here and below.