XCHRX ORIENTAL PRESS GROUP LTD. AND OTHERS v. TED THOMAS

1995, No. A5217

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

____________

_______________

D E C I S I O N

_______________

1. This was an application to strike out 2 paragraphs of the defence. Since the hearing of this application overran its allotted time and there was another case waiting to be heard, I said I would give my reasons in writing later, which I now do.

2. This action arises out of the broadcast of a television programme of the type generally referred to as a "chat show". The Plaintiffs are all directly connected with the Eastern Express Newspaper and the Defendant is well known in the news and communication industries.

3. Surprisingly, since the television programme was of course recorded, there is a dispute as to exactly what was said. That dispute is in a comparatively small compass. For the purposes of this application, I have taken the pleading of the defence to be the words of the broadcast.

4. The Plaintiffs allege that the words used in the broadcast in their natural and ordinary meaning meant:

(a) The 1st and 3rd Plaintiffs established the 2nd Plaintiff for the purpose of producing a newspaper, Eastern Express that would support the Hong Kong Government so as to obtain an amnesty for the 3rd Plaintiff's father that he may be allowed to return to Hong Kong.

(b) In order to please the Hong Kong Government, the Plaintiffs, being the persons in the management of Eastern Express, deliberately adopted a pro-Hong Kong Government attitude in the publication of Eastern Express.

(c) By reason of the facts and matters referred to in sub-paragraphs (a) and (b) above, the Plaintiffs have been guilty of misconduct rendering them unfit and unsuitable as persons in the management of a daily newspaper.

5. It will be noted that certainly as regards sub-paragraph (b), the meaning attributed to the words complained of would not appear to be defamatory. Even as regards sub-paragraph (a), as Mr. Merry for the Defendant pointed out, that paragraph skilfully avoids referring to the 3rd Plaintiff's father as being a fugitive.

6. The application in this matter is that paragraphs 7 and 8 of the defence should be struck out. Paragraph 7 seeks to raise the defence of fair comment and paragraph 8 raises a defence of justification.

7. Before turning to those paragraphs, it should be noted that the defence denies the meaning of the words as pleaded in the statement of claim. By further and better particulars, it is confirmed that the meaning, which the Defendant wishes to place upon the words complained of is that pleaded in paragraph 8 of the defence. Quite simply, that paragraph seeks to aver that a rumour was circulating as to the reasons and intention which lay behind the founding of the Eastern Express Newspaper.

8. Mr. Merry, on behalf of the Defendant, sought to distinguish cases such as Cookson v. Harewood [1932] 2 K.B. 478 at 485 and Lewis v. Daily Telegraph [1964] A.C. 234 at 283-284. Those cases demonstrate clearly that a person who publishes a rumour by repeating it, albeit stating it to be a rumour, cannot justify the libel contained in that rumour by proving the existence of the rumour. To defend an action successfully on the basis of justification, the truth of the rumour needs to be proved. Mr. Merry's argument relied upon the case of Aspro Travel Ltd. v. Owners Abroad Group PLC 7th July 1995, a decision of Stuart-Smith, Waite L.J.J. and Schiemann J. The Times Law Report of that decision had perhaps given some optimism that there was some relaxation of the strictness of the rule. However, during the course of the hearing, I was able to obtain the Lexis copy of that decision, and it was clear that the rule that a rumour cannot constitute justification for an assertion of fact that the rumour was well-founded still remained. In that case, the Defendant wished to plead that there was, in existence, a rumour rather than the truth of the rumour. Having considered the case during the course of argument, Mr. Merry indicated that he felt that he could no longer rely upon the pleading in paragraph 8 of the defence but he contemplated an amendment which he considered would be allowable.

9. In my view, paragraph 8 of the defence is plainly not allowable since it seeks to rely upon the rumour as justification for its contents. I, therefore, strike out paragraph 8. I will allow the Defendant an opportunity to submit amendments which it considers might be allowable.

10. In those circumstances, it seems to me that until there is pleaded in the defence what is said is the correct meaning of the words complained of, it is not possible to consider fully the plea of fair comment. Nevertheless, it seems to me that the general plea in paragraph 7 is in itself open to criticism. It is pleaded that the words were fair comment on "the quality of, and the motivation for the founding of and editorial approach or opinion of ... the Eastern Express".

11. Whilst the words complained of conclude with the expression "it's a fairly flabby editorial line ... ", those of themselves are not words at which the complaint is directed. Nor is the meaning attributed to the words complained of derived solely from such words. On the other hand, in so far as the fair comment is as to quality, I would say that whilst I would find it difficult to put an exact meaning upon the words I have quoted, I would not, at present, be disposed to say that further particulars should be given.

12. In my view, sub-paragraphs (21), (22) and (23) of the particulars under paragraph 7, which again relate to the rumour for the purposes of proving the truth of the rumour, appear to me to be objectionable and I would strike them out.

13. In the circumstances, as to the rest of these sub-paragraphs, again it would seem to me that paragraph 7 does not constitute a properly pleaded defence. I would, however, permit the Defendant to put forward an opportunity to seek to amend its pleading which, inevitably, it would have to do following an amendment to paragraph 8. In the circumstances, I strike out paragraphs 7 and 8 as they now stand.

14. I will give the Defendant 28 days from the date of this Decision in which to put forward an application to amend the defence if so advised. I make an order nisi that the Plaintiffs should have their costs of this application in any event.