EASTWEEK PUBLISHER LTD. and Another v. CHEUNG NG SHEONG, STEVEN

Civil Appeal No. 198 of 1994

Headnote

Damages for libel - appeal by defendant against jury's award.

Held:

(1) Per Nazareth V-P and Mayo JA - Intervention by the Court of Appeal has now to be upon the new lower test formulated in Rantzen v Mirror Group Newspapers Ltd [1994] QB 670 at 692, which replaces the former Wednesbury type test in Broome v Cassell & Co Ltd.

(2) Personal injury damages are irrelevant in the assessment of damages for libel, except (per Mayo JA) in determining whether the latter are so excessive as to warrant intervention.

(3) Per Nazareth V-P and Mayo JA - Liu JA dissenting: Juries in libel actions may be referred to judges' awards of damages for libel in present circumstances.

(4) It is desirable that juries in such actions should be given the direction recommended in Sutclifffe v Pressdram Ltd [1991] 1 QB 153.

(5) The damages awarded were excessive, and a fortiori not necessary in terms of the new test.

Appeal allowed; retrial ordered.

IN THE COURT OF APPEAL

1994, No. 198
(Civil)

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J U D G M E N T

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Nazareth, V.-P.:

Introductory

1. The plaintiff/respondent is a distinguished professor and Head of the Department of Economics at the University of Hong Kong. On 4th February 1993 he was defamed in an anonymously contributed article ("the article") in the 15th issue of "Eastweek" magazine, which has been described as a male gossip magazine. The article was in the following terms:

"CHEUNG NG SHEONG SILENCE IS GOLDEN

Professor Cheung Ng Sheong has always been one of the pillars of the University of Hong Kong. He is very well known. Although he was given the 'award for the worst teaching', it did not damage his popularity. Further, quite a few students in the Faculty of Economics regard him as their idol.

Recently, Professor Cheung's own elder brother, Cheung Ng Chow, distributed in the University canteen a document containing information pointing out directly Cheung Ng Sheong's misdeeds.

That document consisted of a total of eight pages. Its contents embraced a wide spectrum of subjects. The persons involved included Ng Sheong's brother(s), his several elder sisters and his deceased mother. The story started from the War of Resistance. It told of family disputes, commercial secrets, the history of how a fortune was made, millions of dollars of bad debts, inheritance rights, etc. There was such a wealth of materials that it could be turned into another 'Big Decade'.

Although students in general had reservations about such a one-sided version, there were quite a few students who gossiped amongst themselves in private. Recently it was rumoured that professor Cheung 'skipped lessons' and 'refused to' having group photographs with students of the Faculty of Economics taken, thus using 'silence' and 'disappearance' to counteract such gossips."

2. The plaintiff instituted proceedings for libel against the 1st and 2nd appellants/defendants who are the publisher and editor respectively of the magazine. His claim was pleaded in his Statement of Claim in the following way:

"3. In the 15th Issue of the Magazine published on 4th February, 1993 the Defendants and each of them published or caused to be published an article entitled '... (Cheung Ng Sheong - Silence is Golden) which contained the following words in Chinese of and concerning the Plaintiff: ...

4. A true translation of the said words is as follows:

'Recently, it is rumoured that Professor Cheung skipped lessons and refused to having group photographs with students of the Faculty of Economics taken'

5. In their natural and ordinary meaning the said words meant and were understood to mean:

(a) the Plaintiff failed to give lectures to his students;

(b) the Plaintiff refused to take group photographs with his students;

(c) the Plaintiff failed and/or refused to carry out or discharge his professional duties as a professor.

6. By reason of the publication of the said words, the Plaintiff has been seriously injured in his reputation and has suffered loss and damage."

That was the sum of his Statement of Claim. It should be noted that he made no complaint about the earlier part of the article.

3. The plaintiff's claim was heard by Rogers J sitting with a jury who found for the plaintiff and awarded him HK$2.4m. The respondents appealed to this Court but in the event pursued their appeal in respect only of the amount of the award, and admitted liability. Mr Michael Thomas QC who, with Mr Jat Sew Tong, appeared for the defendants, grouped their grounds of appeal under three broad heads:

1. That the award is plainly excessive;

2. That the judge in his summing-up misdirected the jury in several respects that collectively were liable to cause the jury to award more generously than the law and evidence warranted;

3. That it is to be inferred that the jury improperly took account of wholly extraneous and irrelevant material published in 'Next', a rival magazine, the evening before the closing speeches were made.

Scope for intervention on appeal

4. It is not in dispute that this Court has power to set aside the jury's award of damages and to order a new trial on damages (RSC O59 r11(1)-(4)). However, the Court has no power, unless the parties agree, to substitute its own assessment of damages. The position in England and Wales was the same until 1st January 1991 when s.8 of the Courts and Legal Services Act 1990 came into operation. It enabled rules of court to be made to provide for the Court of Appeal to have power, in place of ordering a new trial in such cases, to substitute for the sum awarded by the jury such sum as appears to the court to be proper. No such provision has been made in Hong Kong. That said, it is not in dispute that the scope for intervention by the Court of Appeal is limited.

5. In the 8th Edition of Gatley on Libel and Slander, the legal position is stated thus at pp. 621, 622:

"1515. Assessment province of the jury. 'The assessment of damages is peculiarly the province of the jury in an action of libel,' and a new trial is seldom granted on the ground that the damages awarded are either too great or too small. 'The Court of Appeal has not the advantage of seeing the witness-a matter which is of grave importance in drawing conclusions as to the quantum of damage from the evidence that they give' ...

1516. When a large sum awarded. The mere fact that the verdict is for a larger sum than the judges of the Court of Appeal would have given is not of itself a sufficient reason for granting a new trial. But the court will grant a new trial if it is clearly of opinion that, having regard to all the circumstances of the case, the damages are so large that no jury, properly applying their minds to the relevant evidence, could reasonably have given them. ...

1517. ... The verdict 'should be set aside if the court cannot find any reasonable proportion between the amount awarded and the loss sustained,' or if the damages are 'out of all proportion to the circumstances of the case.'"

6. Lord Hailsham in Broome v Cassell & Co Ltd (HL(E)) [1972] AC 1027 at 1065D-H put it this way:

"A number of factors lead me, however, to the belief that the verdict should not be disturbed. The first, and paramount, consideration in my mind is that the jury is, where either party desires it, the only legal and constitutional tribunal for deciding libel cases, including the award of damages. I do not think the judiciary at any level should substitute itself for a jury, unless the award is so manifestly too large, as were the verdicts in Lewis v Daily Telegraph Ltd [1963]1 QB 340 or manifestly too small, as in English and Scottish Co-operative Properties Mortgage and Investment Society Ltd v Odhams Press Ltd [1940]1 KB 440, that no sensible jury properly directed could have reached the conclusion. I do not think much depends on the exact formula used to describe the test to be applied, whether the traditional language so large (or small) 'that twelve sensible men could not reasonably have given them': per Lord Esher MR in Praed v Graham (1890)24 QBD 53, 55 or that of Palles CB in M'Grath v Bourne (1876) IrR 10 CL 160, 164 cited by Lord Wright in Mechanical and General Inventors Co Ltd and Lehwess v Austin and Austin Motor Co Ltd [1935] AC 346, 378, that 'no reasonable proportion existed between it and the circumstances of the case'. The point is that the law makes the jury and not the judiciary the constitutional tribunal, and if Parliament had wished the roles to be reversed in any way, Parliament would have said so at the time of the Administration of Justice (Miscellaneous Provisions) Act 1933, since section 6 of that Act expressly excepts defamation actions (otherwise than in a limited class of case) from the general change which it then authorised."

7. The last sentence in that passage preceded the commencement of s.8 of the Courts and Legal Services Act 1990 and presumably refers to the right to opt for a jury trial in libel cases. That is also the position in Hong Kong under s.33A of the Supreme Court Ordinance, Cap. 5.

8. More recently, Lord Donaldson in Sutcliffe v Pressdram Ltd [1991]1 QB 153 at 176, 177 said:

"What then is the test to be applied? Various formulations occur in the reported cases: 'the damages are so excessive that no 12 men could reasonably have given them,' per Lord Esher MR in Praed v Graham (1889)24 QBD 53, 55. 'There must be some reasonable relation between the wrong done and the solatium applied' per Hamilton LJ in Greenlands Ltd v Wilmshurst and the London Association for Protection of Trade [1913]3 KB 507, 532-533 and Scrutton LJ in Tolley v J. S. Fry and Sons Ltd [1930]1 KB 467, 476. The damages are 'out of all proportion to the circumstances of the case,' per Morris LJ in Scott v Musial [1959]2 QB 429, 437. 'It is out of all proportion to the facts or such that 12 reasonable men could not have made such an award' per Holroyd Pearce LJ in Lewis v Daily Telegraph Ltd [1963]1 QB 340, 380. The jury's award was divorced from reality,' per Willmer LJ in McCarey v Associated Newspapers Ltd (No. 2) [1965]2 QB 86, 111.

Lord Kilbrandon, in Broome v Cassell & Co Ltd [1972] AC 1027, 1135, having made the point that it was not sufficient for the court to conclude that the award is excessive, since the assessment of damages in libel cases is more of a social than a judicial function and there is no reason to suppose that a judicial view is more likely to be correct than the collective view of 12 sensible men and women, continued:

'When one looks at a jury's award in such a case one has to ask, whether it could have been made by sensible people acting reasonably, or whether it must have been arrived at capriciously, unconscionably or irrationally.'

In the light of these authorities which, as Mr Lightman rightly submitted, point to something in the nature of a Wednesbury test (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]1 KB 223), I approach the matter by assuming that the jury resolved every doubt in favour of Mrs Sutcliffe and then ask myself whether the size of the award points ineluctably to the fact that they must have misunderstood the judge's very clear directions as to the law or must in some other way have fallen into error. I have also thought it useful to consider, admittedly on a speculative basis, what could be the source or sources of any such error because, if none can be identified, it is less likely that the jury lost its way."

Impact of right of freedom of expression

9. The criterion for intervention, as can be seen from the foregoing, was something in the nature of the well-known Wednesbury test. But after Sutcliffe was decided, s.8(1) of the 1990 Act came into operation and its application was considered by the Court of Appeal in Rantzen v Mirror Group Newspapers Ltd [1994] QB 670, with reference to Article 10 of the European Convention on Human Rights. That Convention does not apply to Hong Kong. However, Article 10 is broadly to the same effect as Article 16 of the Hong Kong Bill of Rights which is in the following terms:

"Article 16

Freedom of opinion and expression

(1) Everyone shall have the right to hold opinions without interference.

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary -

(a) for respect of the rights or reputations of others, or

(b) for the protection of national security or of public order (ordre public), or of public health or morals."

Lord Donaldson, giving the judgment of the Court of Appeal in Rantzen, at p.692 said this:

"How then should the Court of Appeal interpret its power to order a new trial on the ground that the damages awarded by the jury were excessive? How is the word 'excessive' in section 8(1) of the Act of 1990 to be interpreted? After careful consideration we have come to the conclusion that we must interpret our power so as to give proper weight to the guidance given by the House of Lords and by the European Court of Human Rights. In particular we should take account of the following passage in Lord Goff's speech in Attorney-General v Guardian Newspapers Ltd (No. 2) [1990]1 AC 109, 283-284:

'The exercise of the right to freedom of expression under article 10 may be subject to restrictions (as are prescribed by law and are necessary in a democratic society) in relation to certain prescribed matters, which include "the interests of national security" and "preventing the disclosure of information received in confidence." It is established in the jurisprudence of the European Court of Human Rights that the word "necessary" in this context implies the existence of a pressing social need, and that interference with freedom of expression should be no more than is proportionate to the legitimate aim pursued. I have no reason to believe that English law, as applied in the courts, leads to any different conclusion.'

If one applies these words it seems to us that the grant of an almost limitless discretion to a jury fails to provide a satisfactory measurement for deciding what is 'necessary in a democratic society' or 'justified by a pressing social need.' We consider therefore that the common law if properly understood requires the courts to subject large awards of damages to a more searching scrutiny than has been customary in the past. It follows that what has been regarded as the barrier against intervention should be lowered. The question becomes: 'Could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation?' "

I concur in and adopt that view. Subsequently the European Court of Human Rights in Tolstoy Miloslavsky v United Kingdom (Case No. 8/94/455/536) TLR 19th July 1995, held that libel damages of ￡ 1.5m in conjunction with the state of English law at the relevant time gave rise to a violation of the right to freedom of expression as guaranteed by Article 10 of the European Convention on Human Rights. In doing so, the European Court expressly endorsed the observations of the Court of Appeal in Rantzen to the effect that the scope of judicial control at trial and on appeal did not afford adequate and effective safeguards against disproportionately large awards.

10. Article 10 of the European Convention on Human Rights does not apply to Hong Kong, although similar provision is to be found in Article 16 of the Hong Kong Bill of Rights. But s.7 of the Hong Kong Bill of Rights Ordinance provides that the Ordinance, from which the Hong Kong Bill of Rights derives its sanction, binds only the Government, public authorities and persons acting on behalf of them. At first sight therefore, it would seem that the considerations in Rantzen do not apply in cases of the present sort, i.e. between private individuals. However, it can be seen from pp.690C-692C of Rantzen that there, too, a similar situation had to be addressed, in that Article 10 of the European Convention on Human Rights was not part of the municipal law of England. The difficulty was overcome in two ways. First, the Court held (at pp.691C-692C) that Article 10 "can properly be regarded as an articulation of some of the principles underlying the common law", quoting Lord Goff's speech in Attorney General v Guardian Newspapers(No.2) in which he saw no inconsistency between English law and Article 10 (at p.691D). And second, by reference to the following words of Lord Goff in the same speech (at p.691F):

"In any event I conceive it to be my duty, when I am free to do so, to interpret the law in accordance with the obligations of the Crown under this treaty [The European Convention on Human Rights]".

11. There is a very close parallel here. While Article 10 of the European Convention does not apply to Hong Kong, the International Covenant on Civil and Political Rights does. Indeed, the Hong Kong Bill of Rights Ordinance is expressly stated in its long title to be an ordinance to provide for the incorporation in the law of Hong Kong of provision of the International Covenant as applied to Hong Kong. Article 19 of the International Covenant contains provision corresponding to Article 10 of the European Convention and, as is to be expected, Article 16 of the Hong Kong Bill of Rights. I do not read s.7 of the Hong Kong Bill of Rights Ordinance as limiting fundamental human rights otherwise provided or recognised particularly in the light of ss.2(3) and 3(1) of the Ordinance, and most of all, s.2(5) of the Ordinance which provides that:

"2 (5) There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in Hong Kong pursuant to law, conventions, regulations or custom on the pretext that the Bill of Rights does not recognize such rights or that it recognized them to a lesser extent."

I can see no reason, nor has any been brought to the attention of this Court, why we should not be free to interpret the law in accordance with treaty obligations applying to Hong Kong. Even if I am wrong in that view, this Court would plainly be entitled and be right to adopt the approach in Rantzen in reliance upon Article 16 of the International Covenant on Civil and Political Rights, on the authority of Lord Goff's dictum, being an articulation of relevant principles of common law.

12. Continuing with the scope of intervention in awards of damages by juries in defamation cases, yet another consideration that in Hong Kong militates against the severity of the non-intervention principles in the courts of England is the historical situation in Hong Kong. Although there has here long been the right to opt for jury trials, actions for defamation appear to have been almost invariably tried by judges in contrast to the situation in England; so much so, that the parties' legal advisers in this appeal have not been able to trace any other defamation trial by jury in Hong Kong during the last eighty years or so. It is accordingly judges, and not juries, who have established the existing levels of damages in Hong Kong, such as they are. Those levels fall to be reviewed by this Court in the ordinary way, as does any award made by a jury since it is to this Court that any appeal lies, albeit that the scope for intervention is rather more limited.

13. Returning then to the position in Hong Kong, in the absence of provision comparable to s.8(1) of the Courts and Legal Services Act 1990, this Court does not have the power to substitute its own awards nor the guiding role of the English Court of Appeal that flows from that provision (see Rantzen at p.696A). Although the result is a lesser role for this Court (though somewhat amplified by rarity of jury trials mentioned) it does not derogate from the requirement to subject large awards of damages to appropriate scrutiny referred to by Lord Donaldson in Rantzen. The test therefore to be applied is that embodied in the question posed by Lord Donaldson in the foregoing passage quoted from Rantzen; it provides a lower threshold for intervention than did the former Wednesbury type test.

Relevance of libel awards by judges

14. It is necessary in this context to recall that the relevant legal and statutory regime is the same as that in England when the House of Lords decided Broome and Lord Hailsham said that:

"... the jury is, where either party desires it the only legal and constitutional tribunal for deciding libel cases, including libel awards"

in the passage I have already cited. That opinion arguably is a decision on the interpretation of recent legislation that is common to Hong Kong and England and in that way must be accepted as binding upon Hong Kong courts (de Lasala v de Lasala [1980] AC 546 at 558 A-E). But it has been relied upon before us as an obstacle to both the intervention of this Court, and to Hong Kong juries deriving guidance, in assessing damages, from the libel damages awards made by Hong Kong judges.

15. It was accepted before us, so far as I understood the position, that it would not be proper for a jury in England to be referred to libel awards made by judges, and that this was a matter of practice. If the latter be right, then, being entitled to regulate their own practice, the Hong Kong courts are not bound to follow. And if, as it seems to me, it is more than that, and is a matter of the divergent development of the common law, be it in Hong Kong arising out of the non-resort to juries or for whatever reason, likewise conformity with the position in England is not necessarily required. Assuming that the relevant rules of the common law were received under the Application of English Law Ordinance without limitation arising out of the circumstances of Hong Kong or its inhabitants or modification as such circumstances required, such circumstances may yet render "it inappropriate that the common law in that field should have developed on the same lines as in Hong Kong" (de Lasala p.558 B).

16. What then are the relevant circumstances? To all intents and purposes, this is the first jury award of libel damages in Hong Kong. It has been held that such awards made in England are not to be followed here (Chan Kwong Wai v Lo Sau King [1963] HKLR 692, 699). The only local guidance available in fact is that from libel awards made by judges. These naturally are reasoned, and by reference to precedent have established a standard over a very long period; a standard that is known and accepted, and one with which the legislature has not interfered. Moreover the standard, although criticised for being low, also prima facie does not appear to be of an order that is likely to infringe rights of freedom of speech enshrined in Article 16 of the Hong Kong Bill of Rights.

17. In these circumstances, and at least until there is in Hong Kong resort to jury trials in libel actions on a significant scale, I have no doubt that it would be right that a jury in addressing the quantum of libel damages, should be afforded such guidance as may be available from libel awards made by judges.

Relevance of personal injury awards

18. I come then to Mr Thomas' submission that in the jury's assessment of damages for defamation, regard should have been had to personal injury awards. There is overwhelming authority that this is impermissible; see e.g. Broome and also Rantzen. The former as a judgment of the House of Lords is binding upon Hong Kong courts in the manner already mentioned, unless local circumstances or the divergent development of the common law in Hong Kong otherwise warrant. Nothing credible of that sort has been drawn to our attention. True the disparity between enormous awards made for relatively inconsequential and ephemeral defamation and the modest awards for the most damaging personal injuries that are moreover permanent can only be viewed as scandalous. Diplock LJ, as he then was, referred to this aspect in McCarey v Associated Newspapers [1965] 2 QB 86 at 108-110, and less forcefully in Broome at p.1130H. Mr Thomas relied upon those references, and upon the dissenting judgments of Sir Anthony Mason CJ and Deane J in Coyne v Citizen Finance Limited (1990-1991) 172 CLR 211.

19. But none of that is any answer to the binding authority of Broome, nor to the reasons there and in Rantzen. The nature of the injury in libel is very different to that in personal injury so are the consequence and the nature of what is sought to be met or provided for by relevant damages. Unlike the mixture of inextricable considerations, the punitive element, the conduct and attitude of the defendant, the vindication of the plaintiff to the public both at the time and in case the libel driven underground should emerge from its lurking place at some future date, and adequate solatium that all weigh in damages for libel, those for personal injury are relatively few and straightforward. Plainly, the dangers of using awards for one to assess those for the other would be great, particularly for juries. Moreover, in Hong Kong, personal injury awards levels, which we are told are in the process of being reconsidered by another Division of this Court, relative to libel damages awards by judges, may be much lower than they should be. Ultimately, it seems to me that there is no escaping the conclusion reached by the Court of Appeal in Rantzen at p.694 D that "there is no satisfactory way in which conventional awards in actions for damages for personal injuries can be used to provide guidance for an award in an action for defamation".

20. However that may be, I do not think that on the authorities it would be open to this Court to accept Mr Thomas' submission, even if I were attracted to it, which I am not. The answer to the disparity itself, and to it favouring the transient and less damaging injury, repugnant as all that undoubtedly is, does not seem to me to lie that way.

Nature of the libel

21. It can be seen that the plaintiff complains only of the last sentence in the article. Assuming, as one must do on the authorities, that the jury found in favour of the plaintiff in every respect that was necessary to support the verdict, the libel is yet plainly one of merely marginal seriousness, notwithstanding the plaintiff's testimony that it was a most serious insult. As to the plaintiff's plea that he was seriously injured in his reputation, there was no evidence whatsoever, even from the procession of his own witnesses to his character and high reputation. But there was evidence that two American academics and one economist from the United States asked him if it was true that he had been skipping classes. This was about a year after the article was published. From that equivocal and minimal evidence it was sought to infer that the article or its contents had reached the United States. No evidence whatsoever was presented in support. Plainly, the conclusion contended for would be unacceptably speculative.

22. Mr Martin Lee QC, for the plaintiff, submitted that the libel was a serious one, in that it was not confined to the actual words complained of because they brought in the reference to the family dispute pamphlet, and moreover did so in a way that suggested that the plaintiff avoided answering the derogatory references to the family dispute by absenting himself from lectures and a group photograph, implying thereby that all these matters were true. However, no such innuendo was pleaded nor, in my view, could it be accepted.

23. Mr Lee, rightly on the authorities, submitted that damages for libel must provide for several disparate elements, not only damage to esteem and reputation. They also "must be sufficient to publicly and demonstratively and absolutely vindicate the plaintiff and to compensate for seriously injured feelings (Yu Kwong Chu v Consolidated Newspapers Ltd (HCA No. A258/86) at p.30 not only caused by the original libel but all the subsequent aggravation thereof down to the verdict, which would restore the plaintiff's "pride and confidence" (McCarey at p.104G). They must enable the plaintiff "to convince a by-stander the baselessness of the charge" if "the libel driven underground, emerges from its lurking place at some future date" (Broome v Cassell at p.1071 C-D).

Aggravation and mitigation

24. Mr Lee pointed to the following conduct of the defendants as aggravating the injury to his feelings. Having originally put in their defence without any reliance on justification, the defendants subsequently introduced the latter by amendment though later deleting it, but nonetheless, thereafter and despite such deletion their defence was conducted in a manner that persisted in the justification defence by interrogatories, by their counsel's opening and closing addresses, and by the cross-examination of witnesses. It has to be said that it is difficult to understand that strategy behind the defence, which however smacks of confusion or ineptitude rather than malice.

25. Mr Lee also complains that the defendants unnecessarily and deliberately brought the "worst teacher award" and the family dispute pamphlet to the attention of the jury. It has to be noted that the former was made by students acting on their own. Mr Lee referred also to the anonymous submission of the article which, he said, was plainly defamatory and yet was met with a total failure on the part of the defendants to check its accuracy. The member of the Eastweek Magazine staff who dealt with the section of the magazine in which the article was published admitted that she did not check its accuracy because, she said, she was aware of the pamphlet and observed that the article was accurate in reference to it. She assumed therefore that the remainder of the article was also accurate. That was clearly careless, but not, in my view, reckless, so as to invite exemplary or punitive damages.

26. Against the foregoing and in favour of the defendants, it is to their credit that a fortnight after publication of the article they published in the 17th issue on 18th February 1993 without alteration and with prominence similar to that given to the article, a letter from a Hong Kong student pointing out the falsity of the earlier report that the plaintiff had absented himself from lessons and missed the group photograph. The student enclosed a photograph actually showing the plaintiff in the group photograph, which was also reproduced by the defendants with the following comment added by the editor:

"Absolutely supports the remarks of Tai [the student] also hope the students will be self-discipline and not take to rumours for real facts".

27. The plaintiff in his evidence contended that the editor's comments made the situation worse. It is difficult to see how that could be. While the article was hardly in the form of retraction usually encountered, it was a correction and set the record straight. That must certainly count for something.

28. Also, some 18 months after the article the defendants published with equal prominence an apology. However, coming so late and undermined to some degree as it was by the plea of justification, it cannot count for very much.

Whether the award was excessive

29. The following conclusions flow from the foregoing matters.

30. The jury's award is well above the general level of awards made by judges in libel cases in Hong Kong, as Mayo JA has demonstrated in his judgment.

31. The libel here can be seen not to be a serious libel by any standard. Moreover, it was corrected within two weeks. It is unlikely to have had any effect upon the plaintiff's high professional standing and reputation. Given the high standing and reputation of the plaintiff, and the petty nature of the defamatory statements pleaded, it seems to me that a very minor fraction of the HK$2.4m awarded would amply serve to compensate the plaintiff for any injury to his reputation and esteem; and likewise also to publicly and absolutely vindicate him and to compensate his undoubtedly injured feelings.

32. An award of the size in question is likely to have a serious effect on the freedom of expression, and cannot be regarded as necessary to protect the reputation of the plaintiff, adopting the approach in Rantzen and in Tolstoy, and of Mason CJ and Deane J in Coyne v Citizen Finance Ltd at p.218.

33. In all the circumstances I am satisfied that the award is so excessive as clearly to meet the several formulations in the authorities of the criteria for intervention by this Court, e.g. so excessive that no seven jurors could reasonably have made it, out of all proportion to the circumstances of the case, and clearly divorced from reality, and above all, such that no reasonable jury could have thought the award necessary to compensate the plaintiff and to re-establish his reputation.

34. It is therefore not necessary to address the defendants' other grounds of appeal which fall within Mr Thomas' second and third categories. However, in deference to counsel's researches and comprehensive submissions and to the occasion, if such it be, of the first jury award in almost a century, I propose to deal briefly with those grounds.

Judge's alleged misdirections

35. In this category, Mr Thomas referred to numerous minor "misdirections", contending, apart from one, that their cumulative effect was to unduly tilt the summing-up against the defendant and to occasion a substantial wrong or miscarriage by aggravating the jury's view of the libel and the defendant's conduct. Having carefully considered Mr Thomas' submission, I find no merit in it. Indeed, I am not persuaded that the bulk of the alleged misdirections can be regarded as such. The one exception I would refer to was a general ground that Mr Thomas submitted could stand on its own. This was that the judge failed to give any form of guidance as to how the jury should relate the purchasing power of money to the sum necessary to provide adequate compensation and to re-establish the plaintiff's reputation. It has been, Mr Thomas submitted, the duty of judges to give some sort of practical guidance to a jury since the decision of the English Court of Appeal in Sutcliffe. Mr Thomas relied particularly upon the views of Lord Donaldson MR on improved guidance for juries at pp.178G-179C:

"I do, however, think that there is one respect in which further assistance can be given. In the instant case I cannot believe that the jury appreciated the true size of the award which they were making. This is understandable. Despite the inflation which has occurred in the post-war years, sums of money of ￡ 100,000 or more, and in many cases less, still lack the reality of the ￡ 1 coin or the ￡ 5 note. In the lives of ordinary people they are unlikely ever to intrude except in the form of the nominal sale or purchase price of a house. I say 'nominal' because in such transactions the only sense in which these sums are real is in the effect which they have in determining the amount of the mortgage payments and the size of the relatively small sum which the purchaser has to pay in cash. Even to the vendor, they do not usually spell wealth, but only the means of reducing the amount of the mortgage payments on his new home.

What is, I think, required, is some guidance to juries in terms which will assist them to appreciate the real value of large sums. It is, and must remain, a jury's duty to award lump sums by way of damages, but there is no reason why they should not be invited notionally to 'weigh' any sum which they have in mind to award.

Whether the jury did so, and how it did so, would be a matter for them, but the judge could, I think, properly invite them to consider what the result would be in terms of weekly, monthly or annual income if the money were invested in a building society deposit account without touching the capital sum awarded or, if they have in mind smaller sums, to consider what they could buy with it. Had that been done by the judge in the present case - and I stress that it would have represented a total departure from the existing practice, which he could not be expected to undertake -- I think that the result would have been a very large award -- but not as high as ￡ 600,000 -- and one with which this court would not have wished to interfere."

36. Mr Thomas also relied upon the judgment of Russell LJ, as he then was, at pp.190A-191A in which, inter alia, he endorsed Lord Donaldson's view that juries could be assisted in appreciating the true size of the award they were making in the way Lord Donaldson suggested, adding that there is little more than judges can do to ensure that awards do not go beyond what is acceptable by any standards save reference to financial implications. Mr Thomas relied further upon the judgment of the English Court of Appeal in Rantzen at pp.681A-682B:

"The first complaint of misdirection put forward was that the judge had failed to give sufficient guidance to the jury about the financial implications of their award in accordance with the guidance set out in Sutcliffe v Pressdram Ltd [1991] 1 QB 153. Lord Donaldson of Lymington MR said, at pp.178-179:

[Here followed the passage already reproduced in this judgment.]

In addition we were referred to the judgment of Russell LJ in the same case, at p.190.

In the present case the judge quite correctly followed the current practice of explaining to the jury that the law does not allow either the judge or counsel to indicate what damages would be appropriate. He told them, again quite correctly, that he was not permitted to tell them by way of comparison what awards are received by a plaintiff who has been totally or partially paralysed as a result of an accident or who has lost a limb. He explained the purpose of compensatory damages and the continued:

'The figure you come up with, if you get to that point, must be a fair and reasonable one. It must not be miserly otherwise the suspicion will linger. On the other hand, the figure must not be wildly excessive. Be reasonable. Keep your feet on the ground. In so arriving at a figure you are entitled to take into account the value of money, what it can buy - a house, a car or a holiday. The question of costs might cross your mind. They are totally irrelevant to the question of damages. The question of costs is for me to determine depending on your verdict. You will arrive at a reasonable figure having balanced out the factors which you think may aggravate and so increase the figure or mitigate and so reduce the figure.'

It is true that in this passage the judge did not direct the jury's attention to the fact that a large sum of money could produce an income which could be enjoyed while the principal sum was left intact. In our judgment, however, the judge gave sufficient guidance to the jury by telling them to take into account the value of money and to relate it to its purchasing power by reference to a house, a car or holiday. He might have gone further but we are satisfied that this suggestion of misdirection is not made out."

37. Directions of the sort commended are clearly desirable, a fortiori since 1991 when the Hong Kong Bill of Rights Ordinance came into force. I do not think the higher educational qualifications required of jurors in Hong Kong and their very likely higher appreciation of the real value of large sums of money mean that they would not benefit significantly from such directions, as suggested by Mr Lee. He also cast doubt (with reference to the mention Nourse LJ made to the values of houses, motor cars, foreign holidays and life insurance policies at p.185G of Sutcliffe with respect to the award of ￡ 600,000 there) upon what assistance the guidance suggested in Sutcliffe would provide. It need only be said in response that the judges in Sutcliffe would, I think, be surprised if it were put to them that the guidance was to be provided (particularly with reference to Hong Kong) in terms of the items mentioned and e.g. not in respect of how many years it would take ordinary people to earn HK$2 million.

38. However that may be, I do not think that "Sutcliffe" type directions are to be regarded as necessary in every case in the sense that their absence results in a misdirection. In the circumstances in this case, I am not persuaded that the absence of a "Sutcliffe" type direction resulted in a risk of injustice or substantial wrong or a misdirection in any other way. That said, since I have already reached the conclusion that the damages awarded are so excessive as to require this Court to set them aside, I merely add that that result may just possibly have been prevented or mitigated by the sort of directions recommended in Sutcliffe, and in Rantzen. It remains to say that although those authorities were drawn to the judge's attention, this does not appear to have been done with specific reference to the passages relied upon nor were directions of the sort now contended for sought.

Whether the jury improperly took account of the "Next" magazine article

39. On the evening before counsel's closing speeches, the rival "Next" magazine published an article about the plaintiff and his action entitled "Cheung Ng Sheong invested heavily to fight 'Eastweek'". It stated that the expenses were very substantial; apart from spending HK$2m odd to retain Mr Lee, considerable other expenses were incurred in inviting an overseas expert. The lawsuit, it said, was estimated to last six days and the bill would be at least "$2,400,000".

40. The jury's award, having turned out to be precisely that amount, the defendants believe that the jury must have taken that very amount into account and contend that this could only be improper. They applied for leave to adduce evidence of the "Next" article at the hearing of the appeal. Their application was opposed but, it was agreed that the evidence should be received de bene esse pending the court's decision. There is no evidence that any of the jurors actually saw the article. Any conclusion that the jury had seen or become aware of the article and its contents can therefore be labelled as speculative, as contended on behalf of the plaintiff. In reality, however, the jury must have wondered what it was that they might have read "yesterday" and are most likely to have looked for it, having had the best part of 3 days to do so before giving their verdict. The coincidence is so remarkable that it is difficult to believe that the sum mentioned in the "Next" article did not have something to do with the sum they so remarkably settled upon. No other explanation or even suggestion has been made to account for it.

41. As to the legal criteria for admitting fresh evidence, the well-established conditions in Ladd v Marshall (see para.59/10/9 of Vol. 1 of the Supreme Court Practice 1995) do not sit comfortably with the present situation. Certainly, the article was available, the defendants knew about it, and in terms of physical possibility, could have adduced evidence of it. But with equal certainty any application at that stage for leave to do so would have been refused for the evidence would not have been then relevant. Its relevance emerges only from any improper use of it made by the jury. In those circumstances, it seems to me, a fortiori, in the interest of justice, that the defendants should be treated as if the evidence could not have been obtained or exceptionally that these are special circumstances that are an exception to the rule in Ladd v Marshall. As to the second condition in Ladd v Marshall, the evidence, if admitted, would probably have an important influence on the result of the case though it would not be decisive. With reference to the third condition, the evidence is clearly credible; indeed, it is not disputed. I would, therefore, have myself admitted the evidence. I recognise nonetheless that it is far from being such as to warrant the appeal being allowed on its own. But it would, in my view, have provided support for the conclusion I have already reached in relation to the quantum of the award.

42. Before I leave the matter, the action of the publishers in publishing such an article, and at the time in question, can only be regarded in a most serious light, and I direct that a copy of this judgment and of the article be sent to the Attorney General by the Registrar.

Conclusion

43. Notwithstanding the conclusions which I have already recorded, in particular that the award was so excessive that no reasonable jury could properly have made it, a fortiori that no reasonable jury could have thought the award was necessary to compensate the plaintiff and to re-establish his reputation, it seems to me to be necessary to address the anxiety and particularly the additional costs a re-trial of the issue of quantum would inflict upon the plaintiff. Having done so and had regard to the extent to which I think the award excessive, and to the view I have formed upon careful consideration, that a far more modest award would amply compensate the particular libel in its circumstances, vindicate the plaintiff and provide for the entire mixture of inextricable considerations in point, it seems to me that a re-trial must be ordered.

44. In reaching that conclusion, I have also taken into account the possibility that a new jury may not significantly reduce the award or may even increase it. Having done so, I will only echo what Lord Diplock said at p.1123 of Broome, " ... I should not be deflected from setting aside a jury's verdict as unreasonable by the fear sometimes expressed by appellate judges, that another unreasonable jury might make a similar unreasonable award of damages on the new trial."

45. For the reasons I have given, I would allow the appeal, set aside the award of damages and remit the matter to the High Court for damages to be re-assessed. As to the precise directions to be made, which are of some importance, counsel will have to be heard; likewise on costs. The matter will therefore have to be re-listed before this Court for a hearing on those matters.

Liu, J.A.:

46. I gratefully adopt the facts set out in the judgment of the Vice President, which I have had an opportunity to read in draft.

47. In this appeal, the court has no ready comparables for use with respect to the quantum awarded by the jury to the plaintiff who was libelled. No parallel can be strictly drawn between awards made by a judge and those made by a jury. In Sutcliffe v Pressdram Limited [1991]1 Q.B. 153, the suggestion of resorting to personal injuries cases was rejected at a time when "the law [made] the jury and not the Judiciary the constitutional tribunal", at the option of the litigant, for assessing damages in defamation cases. Hong Kong is in the same situation as was the United Kingdom before the Courts and Legal Services Act, 1990. In Australia, in their dissenting judgment in Coyne v Citizen Finance Limited, (1990 - 1991) 172 CLR 211, Mason CJ and Deane J rallied to the support of the use of personal injuries awards for guiding assessment of damages in action for defamation. I do not find their rationale irresistible in the Hong Kong context. As long ago as 1972, Lord Hailsham expressed the view in Broome v. Cassell Limited (H.L.(E.)) [1972] A.C. 1027 at p. 1071E that it would not necessarily be "fair to compare awards of damages in [the defamation] field with damages for personal injuries". In Broome v. Cassell, Lord Diplock did not seem to have held steadfastly to the stance he took in McCarey v. Associated Newspapers Limited (No. 2) [1965]2 Q.B. 86, favouring the use of personal injury awards as reference. The law Lord was content to comment: "I think too that an evanescent sense of grievance at the defendant's conduct is often grossly over-valued in comparison with a lifelong deprivation due to physical injuries caused by negligence". See Broome v Cassell, supra p. 1130 G/H. Hong Kong would be well advised to regard herself as guided by the principles enunciated in the leading opinion in Sutcliffe. See advice of the Board in De Lasala v De Lasala [1980] A.C. 546 at p. 558 A/B - B/C, E/F and Tai Hing Cotton Mill Limited v. Liu Chong Hing Bank Limited & Others, [1985] 2 AER 947 at p. 958 b - e.

48. The English Court of Appeal has lately disapproved of the use of personal injuries awards as references for defamation damages. Neither the approach of Diplock, LJ, as he then was, in McCarey's case nor the rationale given in the dissenting judgment of Mason, C.J. and Deane, J in the High Court of Australia in Coyne's case was preferred. See Rantzen v. Mirror Group Newspaper Limited [1994] Q.B. 670 at pp. 694 D - H and 695 G. Want of ready reference material is hardly good justification for turning inaptly to personal injuries awards, the evaluation basis and conceptual content of which are vastly dissimilar to the elements of solatium and restitution in defamation damages. Hong Kong must be patient for her own standards to be set by awards made in jury trials, which are successfully defended on appeal, in due course of time. Awards by juries in previous case are not of themselves permissible references for jury deliberation. See Rantzen, supra p.694 A/B.

49. In addition to the Vice President's analysis of the restriction placed upon the jury's discretion in awarding defamation damages, I wish to focus on the recognition given by the English Court of Appeal to the impact of the common law right of freedom of speech on the jury's discretionary power. See Rantzen v. Mirror Group Newspaper Limited, supra at pp. 685 C/D (counsel's submission) and 691 D & F. This common law right has not been abrogated in Hong Kong. Too wide a discretion or an absolute one to penalise the use of written or spoken words would impinge upon its terrain. Clearly an unfettered discretion in a competent body like a jury in a libel case is inconsistent with a presumption in favour of the right of freedom of speech. Our courts should exhibit less aversion to interfering with an excessive award.

50. Subject to the views expressed above, I agree with the factual evaluation of the Vice President and the conclusion as to quantum reached by my Lord and Mayo, J.A. Of course, it would be legitimate to take into account high-handedness and oppressive or contumelious behaviour which added mental pain and suffering to the defamed. But in whatever way the $2.4 m. award is examined --- "so excessive that no 12 men could reasonably have given them" as in Praed v. Graham (1889)24 Q.B.D. 53 at p. 55, per Lord Esher MR; "some reasonable relation between the wrong done and the solatium applied" as in Greenlands Limited v. Wilmshurst and the London Association for Protection of Trade [1913]3 KB 507 at pp. 532 - 533, per Hamilton L.J.; "out of all proportion to the facts or such that 12 reasonable men could not have made" as in Lewis v. Daily Telephone Limited [1963]1 Q.B. 340 at p. 380, per Pearce L.J.; "divorced from reality" as in McCarey v. Associated Newspapers Limited (No. 2) supra p. 111 per Willmer L.J.; "so large that no reasonable jury could have arrived at that figure if they had applied proper principles" as in McCarey, supra p. 111, per Diplock L.J.; "arrived at capriciously, unconscionably or irrationally" as in Broome v. Cassell & Co. Limited, supra at p. 1135, per Lord Kilbrandon; "excessive" as in Rantzen, supra p. 692 & O. 59r11(4) RSC; and where "some substantial wrong or miscarriage has been occasioned" as in O. 59 r11(2) RSC --- for the evaluation the Vice President makes on the facts of the suffering and injury caused, this award is clearly insupportable. In Broome v. Cassell, supra, Lord Reid spoke of the wide bracket within which a jury might fix a sum, but in my view the $2.4m award is, as judged on the relevant facts even in the absence of what may properly be regarded as precedents, plainly irrational. I too would allow the appeal, set aside the jury's award and order a re-assessment of damages.

51. It is unnecessary therefore to deal with the other issues canvassed before us in this appeal.

Mayo, J.A.:

52. This appeal is now limited to the amount of the damages which were awarded by the jury to the respondent.

53. It is common ground that the powers of the Court of Appeal to interfere with any award that is made by a jury is severely circumscribed. By virtue of Order 59 Rule 11(i) and (ii) the Court of Appeal must be of the opinion that there has been a substantial wrong or that if the court does not intervene a miscarriage of justice will occur.

54. Ground 7 of the Notice of Appeal claims that the award of $2.4 million was manifestly excessive and or is out of proportion to all of the circumstances of the case.

55. The House of Lords fully ventilated the circumstances when a jury award could be interfered with in Cassell & Co. Ltd. v. Broome and Another [1972] AC 1027. All of the Law Lords agreed that the Court should be extremely reluctant to interfere.

56. The rationale for this reluctance is conveniently contained in the speech of Lord Hailsham at 1065.

" A number of factors lead me, however, to the belief that the verdict should not be disturbed. The first, and paramount, consideration in my mind is that the jury is, where either party desires it, the only legal and constitutional tribunal for deciding libel cases, including the award of damages. I do not think the judiciary at any level should substitute itself for a jury, unless the award is so manifestly too large, as were the verdicts in Lewis v. Daily Telegraph Ltd. [1963]1 Q.B. 340 or manifestly too small, as in English and Scottish Co-operative Properties Mortgage and Investment Society Ltd. v. Odhams Press Ltd. [1940] 1 K.B. 440, that no sensible jury properly directed could have reached the conclusion. I do not think much depends on the exact formula used to describe the test to be applied, whether the traditional language so large (or small) 'that twelve sensible men could not reasonably have given them': per Lord Esher M.R. in Praed v. Graham (1890) 24 Q.B.D. 53, 55 or that of Palles C.B. in M'Grath v. Bourne (1876) Ir.R. 10 C.L. 160, 164 cited by Lord Wright in Mechanical and General Inventors Co. Ltd. and Lehwess v. Austin and Austin Motor Co. Ltd. [1935] A.C. 346, 378, that 'no reasonable proportion existed between it and the circumstances of the case'. The point is that the law makes the jury and not the judiciary the constitutional tribunal, and if Parliament had wished the roles to be reversed in any way, Parliament would have said so at the time of the Administration of Justice (Miscellaneous Provisions) Act 1933, since section 6 of that Act expressly excepts defamation actions (otherwise than in a limited class of case) from the general change which it then authorised."

57. There are however circumstances when the award by the jury is so far removed from the amount which should be awarded that the intervention of an appellate court is required.

58. Lord Donaldson considered such a situation in Sutcliffe v. Pressdram Ltd. [1991] 1 QB 153 at 176.

" What then is the test to be applied? Various formulations occur in the reported cases: 'the damages are so excessive that no 12 men could reasonably have given them,' per Lord Esher M.R. in Praed v. Graham (1889) 24 Q.B.D. 53, 55. 'There must be some reasonable relation between the wrong done and the solatium applied' per Hamilton L.J. in Greenlands Ltd. v. Wilmshurst and the London Association for Protection of Trade [1913]3 K.B. 507, 532-533 and Scrutton L.J. in Tolley v. J. S. Fry and Sons Ltd. [1930] 1 K.B. 467, 476. The damages are 'out of all proportion to the circumstances of the case,' per Morris L.J. in Scott v. Musial [1959] 2 Q.B. 429, 437. 'It is out of all proportion to the facts or such that 12 reasonable men could not have made such an award' per Holroyd Pearce L.J. in Lewis v. Daily Telegraph Ltd. [1963] 1 Q.B. 340, 380. The jury's award was divorced from reality,' per Willmer L.J. in McCarey v. Associated Newspapers Ltd. (No. 2) [1965] 2 Q.B. 86, 111.

Lord Kilbrandon, in Broome v. Cassell & Co. Ltd. [1972] A.C. 1027, 1135, having made the point that it was not sufficient for the court to conclude that the award is excessive, since the assessment of damages in libel cases is more of a social than a judicial function and there is no reason to suppose that a judicial view is more likely to be correct than the collective view of 12 sensible men and women, continued:

'When one looks at a jury's award in such a case one has to ask, whether it could have been made by sensible people acting reasonably, or whether it must have been arrived at capriciously, unconscionably or irrationally.'

In the light of these authorities which, as Mr. Lightman rightly submitted, point to something in the nature of a Wednesbury test (see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948]1 K.B. 223), I approach the matter by assuming that the jury resolved every doubt in favour of Mrs. Sutcliffe and then ask myself whether the size of the award points ineluctably to the fact that they must have misunderstood the judge's very clear directions as to the law or must in some other way have fallen into error. I have also thought it useful to consider, admittedly on a speculative basis, what could be the source or sources of any such error because, if none can be identified, it is less likely that the jury lost its way."

59. Other factors need to be borne in mind when deciding whether this threshold has been passed. One of them is if excessive awards are allowed to stand there is a risk that they will constitute an impediment to freedom of opinion and expression as laid down in Article 16 of the Bill of Rights.

60. Article 16 provides:

"Freedom of opinion and expression

(1) Everyone shall have the right to hold opinions without interference.

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary -

(a) for respect of the rights or reputations of others, or

(b) for the protection of national security or of public order (ordre public), or of public health or morals."

61. The Court of Appeal considered this possibility in the context of the United Kingdom's obligation to respect the provisions of Article 10 of the European Convention in Rantzen v. Mirror Group Newspapers Ltd. [1994] QB 670 at 692.

" How then should the Court of Appeal interpret its power to order a new trial on the ground that the damages awarded by the jury were excessive? How is the word 'excessive' in section 8(1) of the Act of 1990 to be interpreted? After careful consideration we have come to the conclusion that we must interpret our power so as to give proper weight to the guidance given by the House of Lords and by the European Court of Human Rights. In particular we should take account of the following passage in Lord Goff's speech in Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1990] 1 A.C. 109, 283-284:

'The exercise of the right to freedom of expression under article 10 may be subject to restrictions (as are prescribed by law and are necessary in a democratic society) in relation to certain prescribed matters, which include 'the interests of national security' and 'preventing the disclosure of information received in confidence.' It is established in the jurisprudence of the European Court of Human Rights that the word 'necessary' in this context implies the existence of a pressing social need, and that interference with freedom of expression should be no more than is proportionate to the legitimate aim pursued. I have no reason to believe that English law, as applied in the courts, leads to any different conclusion.'

If one applies these words it seems to us that the grant of an almost limitless discretion to a jury fails to provide a satisfactory measurement for deciding what is 'necessary in a democratic society' or 'Justified by a pressing social need.' We consider therefore that the common law if properly understood requires the courts to subject large awards of damages to a more searching scrutiny than has been customary in the past. It follows that what has been regarded as the barrier against intervention should be lowered. The question becomes: 'Could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation?'"

62. I have no doubt that we should adopt a similar approach to this in Hong Kong notwithstanding that s7 of the Hong Kong Bill of Rights Ordinance Cap. 383 binds only the Government and all public authorities. It is a proper function of the Court to uphold the Bill so far as this is possible. This is in accordance with s6 of the Ordinance.

63. The effect of this is to lower the threshold referred to by Lord Donaldson.

64. In my view ground 7 is amply made out.

65. The libel in this case was not a particularly serious one. Put simply the matters complained of in the offending article were that the respondent "skipped" his lectures and refused to participate in a group photographing session.

66. It has at all times been accepted by the appellants that the respondent is a distinguished economist and this has not been in dispute. It is also clear from the evidence that a retraction of the allegations was published in the next issue of the publication although this clearly did not constitute an apology. A belated apology was published some 18 months later but it was in dispute between the parties as to whether this was a genuine apology or whether it amounted to an additional insult to the respondent.

67. Mr Martin Lee QC is correct in his submission that we must assume that so far as any dispute of fact remained unresolved we must proceed upon the assumption that the jury were favourably disposed towards the respondent and placed the worst possible interpretation upon the appellant's conduct.

68. Mr Lee placed considerable reliance upon the way in which the respondents had conducted the litigation in the court below. He submitted that they had in fact persisted in attempting to justify the libel. They had also by defending the case as vigorously as they did considerably aggravated the libel.

69. It was undoubtedly the case that the jury might well have concluded that the retraction of the libel in the next issue of the paper was not a genuine retraction. They may have come to this conclusion as a result of the way in which the appellant chose to run its defence at the trial. There are passages in counsel's submission which could readily be interpreted as continued efforts to justify the libel right up until the later stage in the trial.

70. It is however necessary to maintain a sense of proportion. This was not a case where there was any question of exemplary or punitive damages being appropriate. The damages awarded should have been compensatory and designed to assuage the respondents hurt feelings and loss of dignity. They should also be such as to provide a vindication of his character. They should not have been calculated on the basis of punishing the appellants.

71. Even if the worst possible view is taken of this libel and of the way in which the appellants chose to conduct their case below it still remains a fact that the amount which was awarded by the jury was out of all proportion to awards which have been made by judges in other defamation actions in Hong Kong.

72. It would appear that this is the first occasion in recent times when a jury has made an award in a defamation case and so no comparisons can be made with other Hong Kong jury awards.

73. Mr Michael Thomas QC took us through a table of awards which had been prepared and the only case where a comparable amount had been awarded was Choy Bing-wing v. Ng Yat-chi [1992] HKLD 1124.

74. That was however a far more serious case then the present one. Allegations had been made that the plaintiff was not qualified to perform the work he had been undertaking and that he was both dishonest and guilty of acts of corruption.

75. The next highest award was made in Ng Man-sun v. Law Wai (unreported) being HCA 182 and 826 of 1989. The amount awarded was $350,000.00. Here an allegation was made that the plaintiff was a triad leader and involved in unlawful activities. Again these allegations were far more serious than the complaint made in the present case which did not amount to much more than that the respondent had been derelict in his duties as a lecturer. So far as awards made by judges in other libel cases a number of them were less than $100,000.00.

76. There was no suggestion in the libel complained of that the respondent had been in any way dishonest or guilty of infamous behaviour. The award made by the jury should be in the lower range of awards.

77. Whatever yardstick is adopted an award of HK$2.4 million was out of all proportion to the injury suffered by the respondent. Although there are obviously great differences between the injuries suffered by a party who has been defamed and the person who has been injured in an accident it is instructive to consider awards which have been made by the courts in personal injury cases. The Court of Appeal attempted to set out guidelines in A.G. v. Chun Yat-nam [1995]1 HKC 218. It held that for a serious injury the award should be $250,000 to $335,000 for substantial injury $335,000 to $415,000 for gross disability $415,000 to $630,000 and for disaster $630,000 upwards.

78. The purpose of citing these injuries is not to suggest that they should be included in directions given to a jury. It is to illustrate the enormity of the award made by the jury in the present case.

79. For the reasons given this award must in my opinion be set aside.

80. It is claimed in the grounds of appeal and Mr Thomas submitted that there were numerous misdirections by Rogers J and that he failed to give a number of other directions.

81. For the most part these criticisms are not justified. Taken as a whole the summing-up was fair and accurate.

82. The criticisms do however have some validity in respect of the following matters:

(a) Having regard to the evidence given by the respondent it would not have been fair to direct the jury that there was evidence to indicate that attendance at his lectures had been depleted as a result of the libel.

(b) He should not have directed the jury that there was any evidence to indicate that the North American Economists source of information concerning his "skipping" lectures derived from the offending article.

83. However more important than these misdirections was the failure of the trial judge to give any assistance to the jury on the purchasing power of money to the sum necessary to provide adequate compensation and vindication of his reputation.

84. What I have in mind are the remarks made by Lord Donaldson in Sutcliffe v. Pressdram Ltd. at 178 and 179.

" I do, however, think that there is one respect in which further assistance can be given. In the instant case I cannot believe that the jury appreciated the true size of the award which they were making. This is understandable. Despite the inflation which has occurred in the post-war years, sums of money of ￡ 100,000 or more, and in many cases less, still lack the reality of the ￡ 1 coin or the ￡ 5 note. In the lives of ordinary people they are unlikely ever to intrude except in the form of the nominal sale or purchase price of a house. I say 'nominal' because in such transactions the only sense in which these sums are real is in the effect which they have in determining the amount of the mortgage payments and the size of the relatively small sum which the purchaser has to pay in cash. Even to the vendor, they do not usually spell wealth, but only the means of reducing the amount of the mortgage payments on his new home.

What is, I think, required, is some guidance to juries in terms which will assist them to appreciate the real value of large sums. It is, and must remain, a jury's duty to award lump sums by way of damages, but there is no reason why they should not be invited notionally to 'weigh' any sum which they have in mind to award.

Whether the jury did so, and how it did so, would be a matter for them, but the judge could, I think, properly invite them to consider what the result would be in terms of weekly, monthly or annual income if the money were invested in a building society deposit account without touching the capital sum awarded or, if they have in mind smaller sums, to consider what they could buy with it. Had that been done by the judge in the present case-and I stress that it would have represented a total departure from the existing practice, which he could not be expected to undertake-I think that the result would have been a very large award-but not as high as ￡ 600,000-and one with which this court would not have wished to interfere."

and the guidance given by the Court of Appeal at 681 of Rantzen v. Mirror.

" In the present case the judge quite correctly followed the current practice of explaining to the jury that the law does not allow either the judge or counsel to indicate what damages would be appropriate. He told them, again quite correctly, that he was not permitted to tell them by way of comparison what awards are received by a plaintiff who has been totally or partially paralysed as a result of an accident or who has lost a limb. He explained the purpose of compensatory damages and then continued:

'The figure you come up with, if you get to that point, must be a fair and reasonable one. It must not be miserly otherwise the suspicion will linger. On the other hand, the figure must not be wildly excessive. Be reasonable. Keep your feet on the ground. In so arriving at a figure you are entitled to take into account the value of money, what it can buy-a house, a car or a holiday. The question of costs might cross your mind. They are totally irrelevant to the question of damages. The question of costs is for me to determine depending on your verdict. You will arrive at a reasonable figure having balanced out of factors which you think may aggravate and so increase the figure or mitigate and so reduce the figure.'

It is true that in this passage the judge did not direct the jury's attention to the fact that a large sum of money could produce an income which could be enjoyed while the principal sum was left intact. In our judgment, however, the judge gave sufficient guidance to the jury by telling them to take into account the value of money and to relate it to its purchasing power by reference to a house, a car or holiday. He might have gone further but we are satisfied that this suggestion of misdirection is not made out."

85. I think that it is important that some guidance should be given to jurors along these lines. It is not right to argue that because Hong Kong juries may have higher educational attainments than their counterparts in England they have no need for such assistance. The award made in the present case would appear to bear this out.

86. The final matter to be dealt with is the article appearing in "NEXT" magazine which may have been seen by jurors when they deliberated. As we propose to set aside this award it is not necessary in my opinion to make an adjudication on this ground of appeal. Suffice it to say that this article may well have constituted a contempt of court. It will never be known the extent (if any) to which this may have influenced them.