ROBERT HUNG YUEN CHAN v. SING TAO LTD AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. This is a libel action brought against Sing Tao Daily and came on for hearing immediately after the conclusion of the Plaintiff's libel action against Hongkong Standard Newspapers ("the 1st Action"). In the present case, liability is not disputed. The only question for the court is the assessment of damages.

2. The article in question, like the article in the 1st Action, was published on September 15,1994. It appeared on the inside back page of the main part of the newspaper. Both the first and last pages of that part were taken up by full-page advertisements. The heading and text of the article are set out below with an English translation which is not disputed.

3. On the day that the article was published, a letter before action was sent by the Plaintiff's solicitors seeking, inter alia, an apology. This was not forthcoming. Accordingly the writ was issued on September 20, 1994 followed by a Statement of Claim on October 20,1994. It complained that the article under the heading "Honorary Consul(s) sacked again in connection with selling of passports" referred and was understood to refer to the Plaintiff and was highly defamatory.

4. In January 1995, the Plaintiff gave notice of intention to amend the Statement of Claim. The amendment sought was to insert most of the text of the article into the pleadings. Leave to amend was granted in February 1995. The Amended Defence relied on justification, fair comment, the fact that the article was not defamatory, and that part of the article did not refer to the Plaintiff. Some 14 months later, in April 1996, the Defence was withdrawn.

5. In his Statement of Claim, the Plaintiff pleads that by the words complained of in their natural and ordinary meaning the Defendants meant and were understood to mean that the Plaintiff was involved in the unlawful or unauthorised selling of Paraguay passports which had resulted in his being dismissed or sacked from his office as Honorary Vice Consul(s) of Paraguay in Hong Kong and that the Plaintiff has, as a result, been injured in his character, credit and reputation and has been brought to public scandal, odium and contempt and has suffered loss and damage.

6. Mr Yu, Q.C., for the Plaintiff submitted that the libel is very serious indeed. The heading could not have been more explicit about the alleged wrong-doing by the Paraguayan Honorary Consuls, for which they were sacked : it was the "selling of passports" which necessarily implied a gross breach of trust and abuse of position for profit. There is no escaping the fact that the article seriously impugned the integrity of the Plaintiff, with overtones of corruption and even embezzlement.

The Plaintiff's evidence

7. The Plaintiff's application that the evidence given by him in the 1st Action stand as evidence in this case was granted, there being no objection on the part of the Defendants. Reference should be made to the Plaintiff's evidence in the 1st Action for the relevant facts. The Plaintiff supplemented the evidence given in the 1st Action in the following respects.

8. He testified that the Sing Tao Daily is an established newspaper in the same group as the Hongkong Standard. It has a special education section. The Plaintiff is the legal advisor of the Hong Kong Council of Education Administrators which is the Hong Kong branch of the Commonwealth Institute headquartered in London. Because of its education section, the Sing Tao Daily is popular within the education field.

9. The Plaintiff had no contact with the Sing Tao Daily prior to the publication of the article. The part of the article that reported a conversation between Mr S. S. Chan and the Standard would appear to have been a mistake, it being accepted that the Chinese article was based on the Hongkong Standard article. The Plaintiff saw both articles at the same time. He was shocked. He confirmed that when he spoke to Mr David Wong, the Editor of Chief of the Hongkong Standard that morning, it was with reference to both articles.

10. The Plaintiff became a China-appointed attesting officer in June 1995. Altogether there are about 207 solicitors in Hong Kong who have been appointed by the Ministry of Justice of the People's Republic of China to have the authority to attest legal documentation used in China. They effectively undertake the function of a Chinese consul outside China and one of the criteria for appointment is for the solicitor in question to demonstrate a significant PRC practice. The Plaintiff testified that he did have a significant PRC practice and his clients being individuals as well as institutions.

The Defendants' apology

11. At the commencement of this hearing, on behalf of his clients, Mr Whitehead apologised to the Plaintiff in open Court for the distress and embarrassment that the article had caused the Plaintiff. He said that the suggestions made in the article and complained of in the Statement of Claim are totally unfounded and were never intended and that his clients were glad to say so publicly. Counsel for the Defendants accepted that this apology was very late in the day but he hoped that it would in some way be comforting to the Plaintiff that the Defendants are acknowledging that he had been wronged by the article and apologising for it.

12. An apology can be relied upon in the defence and in mitigation of damages if it complies with the provisions of the Defamation Ordinance Cap.21. But the apology tendered is not within the terms of either s.3 or s.4 of the Defamation Ordinance. It was suggested that the notice requirement in s.3 is not adhered to in practice in England under the comparable statutory provision there.

13. In Chan Kwong Wai v. Lau Sau King [1963] HKLR 692, an apology was tendered by counsel for the defendants at the beginning of the trial. The Plaintiff complained about the libel seven months after its publication but the defendants did not make an offer of apology for three months, and when they did, there was no admission of the untruth of the article. Huggins J. who was the trial judge found the further apology made at the hearing to be sufficient in form and even allowing that evidence of it is admissible without notice, he thought it was so late as to be practically worthless especially when one considered the conduct of the defendants up to that time. He said (at p.694) :

"An apology can be a sincere expression of regret or mere admission of guilt. I am not satisfied that what the defendants have done in this case amounted to much (if anything) more than an admission of guilt : I am certainly not persuaded that the damages should be reduced on account of what the defendants have now seen fit to say."

I respectfully adopt that sentiment in relation to the present case.

Damages

14. The principles applicable when assessing the quantum of damages are set out and considered in the 1st Action to which reference should be made. Those principles also apply to this case.

15. There was some suggestion that the libel could not have affected the Plaintiff's reputation as the Plaintiff's appointments as a China-appointed attesting officer and member of the Hong Kong Council of Education Administrators were made after the publication of the libel. Mr Yu Q.C. pointed out that in the case of Morris Manning and Church of Scientology of Toronto v. S. Casey Hill, Supreme Court of Canada, July 20, 1995 (unreported) the person libelled went on to become a judge. The fact that the appointments were made after the date of the libel does not mean that the Plaintiff did not suffer any damage. Rather, it goes to show that the Plaintiff is a man of repute and there is in fact no way of knowing what else he could have achieved but for the libel. I am inclined to agree.

16. So far as the facts are concerned, the following differ from those in the 1st Action and the damages to be awarded must reflect the difference. The libel is far more serious in nature in this case in that the ordinary reader is invited to conclude that the Plaintiff abused his position by selling passports for personal gain. In short, he was corrupt. This goes far beyond being implicated or associated with a scam. The newspaper is a well-respected and established Chinese newspaper and has a larger circulation than its English counterpart, the average monthly circulation for the second half of 1994 being some 65,000 copies as opposed to 52,000 odd. As the Plaintiff does have a substantial PRC practice, it is not unreasonable to infer that there may be more clients or potential clients and fellow solicitors to be found amongst the readership of Sing Tao Daily than the Standard. Although the Defendants chose not to give evidence, they accepted that no one from the newspaper ever spoke to the Plaintiff prior to publication. In these circumstances, it is not unreasonable to infer that this article was based on the article which was published in the Standard and which was the subject matter of the 1st Action, at least, in the absence of any evidence as to how the article under consideration came to be published. As I understand it, this is accepted.

17. It is beyond question that the Defendants have acted wholly irresponsibly and without the least regard for the truth and accuracy of the article when it was published. To impugn the integrity of a professional man without any steps, let alone reasonable steps, being taken to verify the accuracy and truth of the statements made is both callous and wanton. It is conduct that cannot be condoned.

18. The Plaintiff has had to endure many months of anxiety, humiliation and stress. Upon the withdrawal of the defence, the Defendants did not have the good grace to tender an apology in public. When they did tender an apology, that apology, lacked sincerity and failed to attract any meaningful publicity. Its effect is clearly not the same as a full apology inserted in the newspaper. This is a case where the Defendants' conduct verged on the egregious.

19. To add insult to injury, the Defendants sought to describe the Plaintiff's prosecution of this action as an exercise in "gold-digging", latching on to a word which appeared in the judgment of Huggins J. in Chan Kwong Wai. On a closer perusal of the context of the judgment of Huggins J. in which the word "gold-digging" appeared, I can but agree with his observations (at p.701) that :

"those who publish this type of matter do so at their peril and should not be surprised if those who are libelled expect something more than an apology."

20. In all the circumstances, applying the principles reviewed in the 1st Action including an adjustment for double recovery, a proper award of damages in this case is the sum of $900,000 and there will accordingly be a judgment for the Plaintiff in this sum. The Plaintiff is also entitled to the injunction sought. There will be an order for costs in favour of the Plaintiff.