CHRISTIAN ZHENG SHENG ASSOCIATION LTD AND OTHERS v. NEXT MAGAZINE PUBLISHING LTD AND ANOTHER

HCA 563/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 563 OF 2010

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REASONS FOR  DECISION

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Introduction

1.  At the end of the pre‑trial review hearing, (among other things) I made an order in terms of the defendants’ summons to withdraw the plaintiffs’ interrogatories with costs (RHC Ord 26 r 3(2)) (“this application”).

2.  Below are the brief reasons for the above decision.

Background

3.  The plaintiffs commenced this action in April 2010 suing the defendants for libel.  The libel is said to be contained in 3 articles of a weekly magazine respectively published on 13 August, 27 August and 31 December 2009.  The defendants deny the libel.

4.  Among the relief sought is a claim for exemplary damages.

The interrogatories and this application

5.  It is common ground that the interrogatories were served without leave principally in relation to the defendants’ alleged liability for, and (if liability is established) the quantum of, exemplary damages.

6.  The information sought in this application can be categorized into:

(1)   the number of magazine distributed in and outside Hong Kong for each issue from 1 February 2009 to 30 June 2010 (a period of one year and five months);

(2)   the number of subscribers to the internet version of the subject magazine, and the hit‑rate of the same, for each issue for the above period; and

(3)   the advertising income from each issue (of both the printed and internet versions) of the subject magazine for the above period.

7.  In this connection, the plaintiffs referred (among other things) on the following passage in Gatley on Libel and Slander (2008) 11^th Ed:

“To attract exemplary damages under the third category in Rookes v Barnard the publisher must have acted in the hope or expectation of material gain. It is not enough that he is motivated by a desire to injure or ruin the claimant. . . The fact that the defendant is engaged in an activity aimed at profit. . . does not of itself justify an award of exemplary damages. . . ” (emphasis supplied) (para 9.18).

8.  On the issue of quantum, Gatley states:

“Where the libel is published in a well‑known newspaper with which the jury is likely to be familiar, there is authority that the plaintiff cannot interrogate. . . the proprietors as to the number of copies which were printed and published, because the exact circulation figure is unlikely to be important and the jury will be well enough aware of the general type and extent of circulation to be able to assess damages. . . In practice, however, disclosure of circulation is routinely given and evidence of circulation (and readership) is invariably admitted at trial” (emphasis supplied) (para 33.36).

9.  The footnote to Gatley, para 9.18 appears to echo the above:

“The English approach supports the view that a function of exemplary damages is to strip the defendant of the profits of his wrongdoing, but if that is right they only do so in a very rough and ready manner: see para 9.22, below” (emphasis supplied) (n 203, para 9.18).

10.  The salient features relevant to this application are largely undisputed:

(1)   the subject magazine is well‑known and is likely to be familiar to the jury;

(2)   the average circulation figures have been stated on the cover of the subject magazine (and, according to one of the defendants’ letters, also available from the website of the Hong Kong Audit Bureau of Circulations); and

(3)   there were other articles in the subject magazine besides the allegedly libelous articles.

11.  I have adopted the summary of the legal principles stated in Gatley when deciding this application, and conclude that it is not the policy of the law, as it present stands, to encourage extensive and/or detailed investigation by way of interrogatories for the purpose of establishing exemplary damages (whether the same applies to the discovery of documents is not a matter for discussion on this occasion (Morinda International Hong Kong Ltd v Next Magazine Publishing Ltd and Others HCA 4471/2000 (4 October 2002), referred to by the defendants, was a decision about specific discovery)).

12.  In view of the salient features above, the above legal policy applies with even more vigour:

(1)   there is no suggestion that the typical presentation, or the editorial and/or writing style, of the three issues under complaint has departed from the other issues of the subject magazine;

(2)   there is no evidence to suggest any substantial variation in the circulation figures for the three issues under complaint by reason of their being more attractive to the readers (or advertisers) of the subject magazine;

(3)   it would therefore be over‑simplistic to conclude that, should there be any change to the subject magazine’s circulation and/or advertising income, the same was a result of the publication of the alleged libel; and

(4)   the interrogatories cannot be justified on the ground that the jury would need to be informed of the circulation figures of a new and/or obscure publication.

Conclusion

13.  For the reasons set out above, this application was granted.