XCHRX IP WING KIN v. NEXT MAGAZINE PUBLISHING LTD. AND OTHERS

HCA 12443/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 12443 OF 1999

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D E C I S I O N

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Introduction

1. This is the Plaintiff's appeal against the order of Master Wong dated 2 February 2000 whereby she dismissed the application for the striking out of some paragraphs of the Defence filed on 13 October 1999. The Plaintiff commenced this action by issuing the Writ herein on 2 August 1999 alleging that the Defendants defamed him by publishing an article on about 15 July 1999 in issue 488 of the "Next" Magazine.

2. The Plaintiff alleges (at para. 11 of the Statement of Claim) that the said article imputed the following defamatory meanings:-

(a) the Plaintiff carried on his medical practice dishonestly in that he frequently misrepresented to his patients that they were suffering from venereal diseases when they were not suffering from such diseases, so as to mislead his patients into accepting expensive and painful cryosurgery which he knew was wholly unnecessary;

(b) alternatively, the Plaintiff was incompetent in that he frequently misdiagnosed his patients to be suffering from venereal diseases when they were not suffering from such diseases, resulting in his patients taking expensive and painful cryosurgery which was wholly unnecessary;

(c) the Plaintiff's only or main concern was to rip-off his patients, and in so doing he wilfully or recklessly disregarded their health and welfare;

(d) the Plaintiff had a rotten reputation which was well-known within his profession;

(e) the Plaintiff was a scoundrel, a cheat, unscrupulous and/or wholly unfit to be a medical practitioner.

3. The Defence filed herein consists of 27 paragraphs. Two lines of defence are put forward: justification (paras 11 and 13 thereof) and fair comment (para. 14 thereof). Para. 12 thereof sets out in 48 sub-paragraphs the "facts and matters in support of the plea of justification". These "facts and matters" are also referred upon in relation to the fair comment defence.

4. The Plaintiff asks for the striking out of the following paragraphs:-

(a) paras 12(6) to (11), (33), (38) to (41) and (42) to (47);

(b) paras 12(25) to (28), (29) to (32) and (34) to (37);

(c) para. 14.

5. As the paragraphs in issue in this appeal can be conveniently grouped into different categories, they will be dealt with below under separate headings.

(1) The Named Patients

6. Paras 12(6) to (11), (33), (38) to (41) and (42) to (47) of the Defence set out incidents in which the Plaintiff allegedly misrepresented the position to patients who are identified by name in the Defence. These paragraphs refer to incidents involving a Mrs So, a Mr Hugh and an infant Master Lam, all said to have been the Plaintiff's patients.

7. Several grounds were advanced in the Plaintiff's skeleton argument in support of this part of the appeal:-

(a) since the Defendants have failed to inform the Plaintiff whether they have the named patients' consent to refer to incidents involving these patients, it can be inferred that no consent was given. For this reason, the Defendants would not be able to adduce evidence in support of this part of the Defence. This would amount to an abuse of the Court's process because the Defendants should have either reasonable evidence to support their plea or reasonable grounds to believe sufficient evidence would be available to do so;

(b) further to (a) above, in the absence of the patients' consent, the Plaintiff cannot properly respond to this part of the Defence without breaching his duty of confidentiality toward his patients. A fair trial therefore becomes impossible.

8. Shortly before the hearing of the appeal, the defence indicated that they had obtained signed witness statements from the patients concerned (in the case of Master Lam, from his mother) which substantiate this part of the Defence. In view of this development, Ms Eu for the Plaintiff considers it unnecessary to pursue this part of the appeal, save as regards the incidents relating to Mr Hugh and Master Lam.

9. Ms Eu's objection regarding Mr Hugh's case and Master Lam's case is related to the question of relevance. She argues that since this action is concerned with an alleged imputation that the Plaintiff misrepresented (deliberately or negligently) his patients to have been suffering from venereal diseases, these 2 cases are irrelevant. The Defence pleads inter alia that:-

(a) the Plaintiff diagnosed Mr Hugh to be suffering from Herpes Zoster Virus when he was only suffering from "contact dermatitis";

(b) Master Lam had a cherry angoima and the Plaintiff applied cryosurgery to him unnecessarily.

Ms Eu contends that these pleas should be struck out for being irrelevant to the issues in this action.

10. Mr Chow for the Defendants refers to para. 26.21 of Gatley on Libel and Slander (1998) 9th Ed.:-

"In setting out the natural and ordinary meaning of the words, the plaintiff should be as specific as he can be ... He should exercise care since a meaning which is pleaded excessively widely may cause subsequent embarrassment ... Alternatively, it may assist the defendant to introduce into a plea of justification acts of misconduct other than those referred to in the words complained of".

He argues that the above passage applies squarely to this part of the appeal. This is because the Plaintiff herein has chosen to allege various defamatory imputations, including imputations of "rip-off" and being "a scoundrel, a cheat, unscrupulous and/or wholly unfit to be a medical practitioner" (see para. 11 of the Statement of Claim referred to under the heading "Introduction"). The incidents involving Mr Hugh and Master Lam are relevant to the defence of justification relating to the above imputations.

11. I agree with Mr Chow's argument and disagree with those of Ms Eu. For this reason, this part of the appeal is dismissed.

(2) The Un-named Patients

12. A total of 8 patients were referred to in paras 12(25) to (27) (para. 12(28) will be dealt with under another heading), (29) to (32) and (34) to (37) of the Defence. 2 of those patients allegedly consulted a Dr Lam after they consulted the Plaintiff, 3 others consulted a Dr Lai and the remaining 3 consulted a Dr Cheung. In relation to Dr Lam's patients, the Defence avers that their names are unknown to the Defendants. In relation to the patients of Dr Lai and Dr Cheung, the Defence avers that their names and the dates on which they consulted the Plaintiff are unknown to the Defendants.

13. Ms Eu argues that because of the above averments, the missing information cannot be obtained by a request for further and better particulars. She further submits that the Plaintiff will be prejudiced by these paragraphs of the Defence because of the following matters.

14. A doctor is under a legal obligation not to disclose confidential information concerning a patient which he learns in the course of his professional practice: see Gurry: Breach of Confidence (1984), p. 148. This duty is subject to the following exceptions:-

"As is the case with all obligations of confidence, the doctor's duty is not absolute but is subject to the requirement of disclosure under compulsion of law and in the public interest. Furthermore, his obligation can be released with the express or implied consent of the patient": pp. 148-9 of Gurry.

15. Ms Eu argues that without information such as the patients' names, or other particulars to enable the Plaintiff to identify those patients, it would be at least oppressive to require the Plaintiff to ascertain who they were so as to respond to these allegations in the Plaintiff's pleadings. The Plaintiff's task may be impossible. Furthermore, because of the lack of the patients' consent (even if the Plaintiff could ascertain those patients), it would be impossible for the Plaintiff to disclose their cases in the pleadings without breaching his duty of confidence regarding these patients.

16. In relation to Ms Eu's argument relating to missing particulars, Mr Chow contends that this can be met by the Defendants' undertaking to make either of the following applications:-

(a) an application to issue a subpoena duces tecum against the 3 doctors to disclose their records relating to the "un-named" patients. Relying on Khanna v. Lovell White Durrant [1995] 1 W.L.R. 121, the application can be heard on a specified date well in advance of the trial of this action to enable the Plaintiff to know the identity of these patients;

(b) however, the application proposed at (a) above may be inconsistent with the Court's observations in Vibroflotation A.G. v. Express Builders Co. Ltd. [1994] 3 H.K.C. 263. In view of the potential difficulties thereby created, an application can be made pursuant to R.H.C. Ord. 38 r. 13(1) which provides:-

"At any stage in a cause or matter the Court may order any person to attend any proceeding in the cause or matter and produce any document, to be specified or described in the order, the production of which appears to the Court to be necessary for the purpose of that proceeding".

The 3 doctors can be summoned to appear and produce the relevant records through this means.

17. While this may sufficiently deal with the argument relating to the missing particulars, I agree with Ms Eu that the applications proposed by Mr Chow cannot satisfactorily solve the problem arising from the Plaintiff's duty of confidence. Had it not been for this inadequacy, I would probably have decided in the Defendants' favour. However, in view of the difficulties created by the duty of confidence, I agree with Ms Eu that these paragraphs of the Defence ought to be struck out on the ground that they may prejudice or embarrass the fair trial of this action.

18. This part of the appeal is therefore allowed.

19. For the avoidance of doubt, the above is without prejudice to the Defendants' intention to rely on the incidents regarding the un-named patients in relation to the issues of "malice", "aggravated damages" and "exemplary damages". I agree with Mr Chow's submission that these may have to be argued and determined later if and when necessary.

(3) The Defence of Fair Comment

20. Para. 14 of the Defence pleads that the following words in the said article were fair comments:-

(1) "皮膚科葉榮根醫生胡亂指病人生性病'椰菜花'";

(2) "無良醫生葉榮根亂話人有性病";

(3) "行内臭名遠播".

21. Several grounds are put forth by Ms Eu and they will be dealt with in turn below.

22. Her first argument is that the above are statements of fact and not comments. Mr Chow submits that it is not always easy to distinguish between an expression of an opinion and an assertion of fact: see also Gatley, paras 12.6 to 12.13. He further submits that the following words in the 3 sentences quoted from the said article in para. 14 of the Defence are clearly "comments":-

(a) "胡亂" in quote (1) above;

(b) "無良" and "亂" (in "亂話") in quote (2) above;

(c) "臭" (in "臭名") and "遠" (in "遠播") in quote (3) above.

Having heard the parties, I agree with Mr Chow that the statements in question are not plainly and obviously statements of fact such that they should be struck out.

23. Ms Eu's second argument can be described as a "pleading" point. She submits that the "fair comments" pleaded in para. 14 were based "upon the facts and matters pleaded in paragraph 12 [of the Defence]". With paras 12(25) to (27), (29) to (32) and (34) to (37) being struck out, the facts and matters pleaded are insufficient to support a defence of fair comment.

24. I disagree with her second argument in relation to the statements set out in quotes (1) and (2) above. Even after the references to the un-named patients have been struck out, para. 12 of the Defence still contains the incidents involving 4 named patients (including the case of D4, the reporter). 2 of them involved alleged mis-diagnosis of venereal disease.

25. As regards the statement set out in quote (3) above, Mr Chow relies on the plea at para. 12(48) of the Defence. This reads:-

"The Plaintiff has a generally bad reputation within the medical profession for abusive use of cryosurgery on his patients".

He contends that this averment is sufficient to support the plea made at para. 14 of the Defence. Insofar as the Plaintiff complains that particulars of this averment are wanting, Mr Chow states that this is more appropriate for a request for further and better particulars than for striking out: see also The Supreme Court Practice 1999, vol. 1, para. 18/19/13.

26. I agree with Mr Chow over this point. This part of the appeal is also dismissed.

(4) Para. 12(28) of the Defence

27. Mr Chow submits that para. 12(28) of the Defence is relevant to the plea of justification. This sub-paragraph avers that Dr Lam read the article in issue and wrote a letter on 16 July 1999 expressing his doubts about the ethics of the Plaintiff as a medical practitioner.

28. Ms Eu does not dispute the above submission. Her argument regarding para. 12(28) is that a defendant cannot rely on facts which were not in his mind at the time when the comment was made in order to substantiate a defence of fair comment (relying on Wheatley v. Anderson & Miller [1927] S.C. 133, 148 and Gatley, para. 12.13). Mr Chow argues that a defendant is entitled to do so, relying on Cohen v. Daily Telegraph Ltd [1968] 1 W.L.R. 916, 919G-20B and 920D-G and Duncan & Neill on Defamation (1983) 2nd Ed., para. 12.34.

29. I consider that the arguments raised by the parties over this averment ought to be dealt with at trial because the point is not so plain and obvious as to entitle the Plaintiff to have it struck out now. This part of the appeal is also dismissed.

Costs

30. The parties agreed that this is not a case suitable for a costs order nisi to be included in view that arguments on costs are likely to be necessary. For this reason, no costs order nisi will be made.