ORIENTAL DAILY PUBLISHER LTD AND ANOTHER v. MING PAO HOLDINGS LTD AND OTHERS

FACV No. 1 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2012 (CIVIL)

(ON APPEAL FROM CACV NO. 139 OF 2010)

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Chief Justice Ma:

1.  I agree with the Judgment of Mr Justice Ribeiro PJ, I also agree with the observations of Lord Neuberger of Abbotsbury NPJ on the single meaning rule.

2.  As Mr Justice Ribeiro has reiterated, damages in libel actions are compensatory in nature.  Accordingly, in order to compensate the injured party for a defamatory statement, the effect and extent of the relevant statement must be considered.  Here, principle (as well as common sense) dictate that where a low credence is to be attributed to a statement, the damaging effect of it on the injured party must obviously be less than a case where the opposite is true.

Mr Justice Bokhary PJ:

3.  Despite the able arguments advanced in support of it, this appeal must be dismissed with the order as to costs proposed by Mr Justice Ribeiro PJ.  The material facts are clear.  So are the relevant legal principles – if not prior to this Court’s decision in Blakeney-Williams v. Cathay Pacific Airways Ltd, FACV Nos 13 & 14 of 2011, 26 September 2012, then since that decision.

4.  This does not begin to be a case for aggravated damages.  As to general damages, however, I have some sympathy for the plaintiffs.  The extent to which their general damages were reduced (by a majority) on intermediate appeal leaves them with awards of such damages which I regard as distinctly on the low side.  But there were errors of approach on the part of the trial judge – not least of all the error underlined by Mr Justice Chan PJ – which errors made it necessary for the Court of Appeal to look at the question of general damages afresh, subject only to the respect due to any finding of fact dependant on a trial court’s advantage of receiving the evidence at first-hand.  In arriving at the awards of general damages which it made, the Court of Appeal has not committed any error of approach that opens the way for this Court to take a fresh look at the question of such damages. So we cannot accede to the plaintiffs’ call for an increase of the general damages awarded by the Court of Appeal unless those awards are plainly too low in that they fall below the range of reasonable choices.  Such is the nature of general damages for defamation that the range of reasonable choices is especially wide where they are concerned.  The choice made by the Court of Appeal cannot be said to fall below the wide range open to it.  Being at the low end of a range is, axiomatically, to be within that range.

5.  Defamation law must accommodate both the right to reputation and the right to free speech.  So it is an important part of our legal system.  Not many defamation cases reach our courts.  But there may be – as there certainly was when I was at the bar – very many defamation claims which are settled without a writ being issued.  Perhaps – although it is unnecessary to decide the point in the present case – an appellate court should be even slower to increase a defamation award than to reduce it.  After all, excessive defamation awards imperil free speech.  And what a court can do for victims of defamation is not confined to awarding damages.  It includes stressing – whether in a judgment or in the rider to a jury’s verdict – that no truth is to be ascribed to what has been said against the victim or victims.  This Court is certainly stressing that in favour of the plaintiffs in the present case.

6.  The last point I add is this.  Each case depends on its own facts.  The result of this appeal should not be taken to suggest that liability for reporting defamatory statements of little or no credibility will never attract a high award of general damages.  Depending on the circumstances, it might do so.

Mr Justice Chan PJ:

7.  I agree with the judgment of Mr Justice Ribeiro PJ.  I would only add one observation.  When considering the amount of damages to be awarded, the trial judge simply referred to awards of damages in previous cases.  He did not indicate, as he should have indicated, how relevant they are and whether they are comparable to or different from the case before the court.  This is unhelpful.  Lest this might become an easy option for trial judges, I would respectfully suggest that this should be avoided

Mr Justice Ribeiro PJ:

8.  In this appeal, principles concerning the assessment of libel damages in a case involving a newspaper’s reporting of defamatory statements call for examination.  The question whether corporations can in law claim aggravated damages for libel also arises.

A.  The parties

9.  The 1st plaintiff, Oriental Daily Publisher Limited (“ODP”) is the publisher of the Oriental Daily News (“ODN”), a Chinese language daily with a wide Hong Kong readership.  It is a subsidiary of the Oriental Press Group Limited, a listed company, of which the 2nd plaintiff, Ma Ching Kwan (“C K Ma”), is honorary chairman.  They are the present appellants.

10.  The defendants are concerned with the publication of Ming Pao, another Chinese language daily, which had a Hong Kong readership of 110,000 at the material time.   The 1st, 2nd and 3rd defendants are, respectively, Ming Pao’s proprietor, publisher and chief editor.  They are the respondents.

B.  The article complained of

11.  The article complained of (“the Article”) appeared in Ming Pao on 10 April 1998.  It was published on an inside page in the local news section, and consisted of a photograph, a caption and the text in the body of the Article.

12.  The caption stated[1] :

“‘Hong Kong bid Laden’ Ma Chiu Sing demonstrated and distributed leaflets outside the entrance of the High Court Building yesterday, alleging that earlier someone had planted evidence to frame him resulting in his wrongful imprisonment.”

13.  The body of the Article ran as follows:

“Hong Kong bin Laden protested outside the High Court that he had been framed

[Ming Pao news] Naming himself the ‘Hong Kong bin Laden’, Ma Chiu Sing was sentenced last year to 9 months’ imprisonment for criminal intimidation against the Oriental Press Group. As soon as he was released from prison this year in March, he was beaten up by people with sticks. Ma Chiu Sing yesterday demonstrated at the entrance of the High Court Building and displayed a banner and distributed leaflets to people walking by, alleging that he had been framed up in the criminal intimidation case.

Would still go ahead even if (he) was in a wheelchair

Ma said the High Court was a place where the rule of law was upheld so he deliberately chose to demonstrate in the High Court. He said he was not afraid of being beaten up again and maintained that he ‘would still go ahead even if he was in a wheelchair’.

Ma Chiu Sing also stated that he really wanted to see whether there would be people who would ignore the law and dare to beat him in front of the High Court Building.”

14.  The Article was dominated by the photograph which showed Ma Chiu Sing, wearing a cap, dark glasses and a surgical mask, standing next to and gesturing towards a banner which he had erected.  The banner contained accusations against the defendants written in Chinese characters which were plainly legible.  The photograph did not show the banner in its entirety, but the visible characters stated as follows:

“Is there still rule of law in Hong Kong

Wrongful imprisonment! Bribery! Contract Killing!

Since I, Ma Chiu Sing, was discontented that the founders of Oriental Daily News, Ma Sik Yu and Ma Sik Chun, despite being members of a narcotics trading family and having caused harm to countless people and are on the wanted list, could still get off scot-free and enjoy the rest of their lives and pass their fortunes to their descendants, I had thus submitted an article to the complaint column (‘Hot-Blood Victoria Park’) of Oriental Daily News and produced a banner to inform the public of this story.  (Freedom of) expression and speech is a legal right conferred by the Basic Law to each and every Hong Kong citizen.  To my astonishment, Oriental Daily News and members of the Ma Family such as Ma Ching Kwan (馬澄坤) did not deal with the relevant complaint by lawful means, for instance, if (they) considered what I stated to be fabrications, they could have commenced a civil suit against me.  Instead, not only did they fail to handle the matter by such means, they went so far as to fabricate a blackmail letter for 5 million to frame me up.  Further, senior inspector Yau Nai Keung (游乃強), who pretended to be an assistant to the chairman of Oriental Daily News, called me up.  However, genuine gold does not fear fierce fire (ie the truth always prevails), and the conversation between us was the best evidence to prove that I was innocent.  To my astonishment, Yau Nai Keung (游乃強) was bribed and falsely alleged that the conversation between us was not recorded, and further fabricated false testimony alleging that I had committed acts of criminal intimidation. Subsequently, the Magistrate even considered Yau Nai Keung as a …..”

15.  The plaintiffs’ case was that the Article’s defamatory meaning was that they had forged evidence in order falsely to incriminate Ma Chiu Sing; entered into a conspiracy with a prosecution witness, bribing him to give false evidence against Ma; and perverted the course of justice, resulting in Ma’s imprisonment for criminal intimidation.  Such imputations derive from the accusations in Ma’s banner shown in the photograph, rather than from anything appearing elsewhere in the Article.  The plaintiffs’ case was therefore that Ming Pao is liable for repeating Ma’s defamatory statements by publishing the photograph.

C.  The proceedings below

16.  At the trial, Ming Pao’s sole defence was that the words complained of, taken in their context, were not defamatory of the plaintiffs.  Two other defences had been pleaded.  The first was that the Article did not refer to the plaintiffs.  That was untenable since the banner referred to C K Ma and the ODN by name.  The second was the “Reynolds defence”, that is, qualified privilege in the context of responsible journalism.[2]  It was not pursued at the trial. 

17.  A striking and prominent feature of the Article is its reference to Ma Chiu Sing as “the Hong Kong bin Laden”, appearing in the heading and body of Article, as well as in the caption.  The Article says that “Hong Kong bin Laden” is a name Ma gave to himself but does not state why or in what circumstances it was adopted.  Ming Pao’s case was that the accusations, made by someone describing himself as “the Hong Kong bin Laden”, particularly when the circumstances in which he had acquired that name (set out in Ming Pao’s pleadings) were of great notoriety, would have been given no credence by any reasonable reader. His words would therefore not have lowered the plaintiffs in the estimation of reasonable members of society and so were not defamatory of the plaintiffs.

18.  Chung J[3] rejected that defence and awarded C K Ma and ODP general damages in the respective sums of HK$1.5 million and HK$150,000.  Additionally, he awarded each plaintiff HK$75,000 by way of aggravated damages.

19.  The Court of Appeal[4] dismissed the plaintiffs’ appeal on liability.  Tang Ag CJHC (with whom the other members of the Court agreed) held that Ming Pao’s defence could only succeed if the article was so incredible that no reasonable reader could believe it.  While his Lordship was prepared to accept that “very few people would believe the allegations”, he was unable to conclude that “no reasonable reader of the article could possibly believe Ma’s allegations”. [5]  The trial Judge’s finding of liability was therefore upheld.

20.  However, the contents of and background to the Article and an examination of the range of previous libel awards led the Court of Appeal to hold unanimously that Chung J’s general damages awards of HK$1.5million and HK$150,000 were manifestly excessive.  Tang Ag CJHC and Le Pichon JA ordered that they should be reduced to the sums of HK$150,000 and HK$50,000 in favour of C K Ma and ODP respectively.  Cheung JA dissented to the extent that he thought it appropriate to substitute an award of HK$500,000 for C K Ma. 

21.  The awards of aggravated damages were unanimously set aside.  The Court noted the defendants’ submission that such damages are not in law available to corporate plaintiffs but considered it unnecessary to deal with the point since they held that this was not in any event a case for such damages.

D.  The background and course of events

22.  Ma Chiu Sing styled himself “the Hong Kong bin Laden” when carrying out criminal activities in 2001, described in the Court of Appeal’s 2004 judgment in HKSAR v Ma Chiu Sing.[6] 

23.  On 28 September 2001, Ma telephoned the police to say that he had put poison into cup noodles which were on sale on the shelves of a certain supermarket.  Police investigations led to the discovery of one item containing potentially very harmful poison.  On the same day, the Oriental Press Group received a letter written by Ma, signed “Hong Kong bin Laden”.  That was obviously a reference to Osama bin Laden who had orchestrated the then very recent September 11, 2001 terrorist attacks in the United States.

24.  In the letter, he stated that he had poisoned the food and had told the police of the location as a warning.  He demanded the resignation of certain public figures headed by the then Chief Executive, or else “no notice will be given next time when poison is administered”.  He continued :

“And the poison used will not be the kid’s stuff like this time. The locations of the poisoning next time may be in restaurant(s), may be the water heater in canteens, and etc. ... One person, ten persons, or one hundred persons may be killed next time. .. Don’t underestimate my ability and the poison (I) possess, and don’t ever think that I don’t have enough guts to do so, if my demand cannot be met, I guarantee that I will plan the HK version of 9/11, so that the international community will know that the people of HK are so dissatisfied with TUNG Chee hwa, the Sinner through the Ages, that the accusation has to be made in blood.”

Similar letters were received by other major newspapers including Sing Tao Daily and Apple Daily. 

25.  The continuation of Ma Chiu Sing’s campaign  was described by the Ma CJHC (as the Chief Justice then was) in the following terms:

“On 1 October 2001, a journalist at the Oriental Daily received a telephone call from the Applicant, who identified himself as the person who had poisoned some instant cup foods at a Wellcome Supermarket on 28 September 2001. The journalist was told of the Applicant’s annoyance that his previous acts had not received the high profile he had expected. He said the purpose of his acts was to air the grievances he held against the Chief Executive. Later that day, in another call to the same journalist, the Applicant stated that he had contaminated a bottle or jar of Cadbury’s Chocolate Powder, located again at a Wellcome Supermarket but this time at the store on Queen’s Road Central. He wanted the journalist to report this latest threat. ... Upon investigation at the supermarket, it was discovered that one of the jars of chocolate contained traces of carbofuran [the poison in question].”

26.  Ma Chiu Sing’s intended reign of terror was short-lived.  He was arrested on 2 October 2001 after his phone calls were traced.  He was convicted after trial in December 2002 and sentenced to 6 years and 8 months’ imprisonment.  In August 2004, the Court of Appeal allowed Ma’s appeal in part but upheld his overall sentence.

27.  Ma Chiu Sing was released from prison in June 2006.  In the two months following, he sent five threatening letters to the ODN, leading to his conviction for criminal intimidation in June 2007.  This earned him a sentence of 9 months’ imprisonment.  He was released on 15 March 2008 and it was therefore about a month later that he mounted his demonstration outside the High Court Building, leading to publication of the Article on 10 April 2008.

28.  On the day of its publication, solicitors acting for the plaintiffs wrote to the defendants complaining that the Article was defamatory and demanding an apology, an undertaking against further publication, damages and $10,000 legal costs.  On the next day, 11 April, the Writ was issued and Ming Pao published an article saying that the plaintiffs’ lawyers had written denying Ma’s accusations. 

29.  On 12 April, the ODN published a riposte, attacking Ma Chiu Sing and Ming Pao.  On the following day, Ming Pao published an article stating that “readers would ... understand that the relevant comments were accusations from Ma alone and did not represent the truth.  Therefore the overall effect of the report did not constitute any libel.”  The same point was made in a letter dated 14 April, rejecting the plaintiffs’ demands.

E.  The issues on this appeal

30.  Liability is now no longer in issue.  The starting-point is that the defendants are liable for having defamed the plaintiffs by repeating Ma’s accusations which bear the pleaded defamatory meanings.  It is also undeniable that in publishing the Article to its readership of 110,000, the defendants gave it a far wider circulation than Ma could himself have achieved by mounting his demonstration outside the High Court.  As the authorities recognize,[7] to that extent, the defendants inflicted greater damage than that caused by Ma himself.  The Court of Appeal upheld Chung J’s finding of liability and confirmed a substantive award of damages, albeit drastically reducing the amounts awarded by the trial Judge.  The question for this Court is whether the Court of Appeal correctly reduced the general damages and set aside Chung J’s awards of aggravated damages. 

31.  In deciding to interfere on general damages, the Court of Appeal took into account a number of factors to which I shall return. These included the fact that Ming Pao did not adopt or affirm or seek to justify Ma’s allegations but had disavowed them three days later;[8] the absence of evidence of harm to ODN’s circulation or to C K Ma’s feelings;[9] its view that high awards in very different cases had been used as inappropriate comparators by the Judge;[10] and his failure to have regard instead to the relatively modest awards in cases involving libel actions between media organizations.[11]  

32.  However, the primary basis of the Court of Appeal’s decision was its view that this was a repetition case where the accusations reported were of a very low credibility.  Thus, Tang Ag CJHC accepted “that very few people would believe the allegations” given “...Ma’s notoriety and criminal record, the nature of his allegations (which included an allegation that a senior inspector of police was party to a plot to frame him), and the fact that Ma had been convicted by a magistrate.”[12]  His Lordship described this as a case involving “repetition of accusations by a notorious criminal ... which many would regard as incredible.”[13]  Le Pichon JA likewise concluded: “...only very few of Ming Pao’s readers would have given credence to the accusations”. [14] Cheung JA put it as follows:

“A reasonable reader of Ming Pao will no doubt consider the allegations with the appropriate degree of scepticism (Mr McCoy SC accepted this when he said that, in principle, an ordinary reader may consider the article ‘with a pinch of salt’ while maintaining his support for the award). In this context it is necessary to bear in mind that Ma with his previous criminal background might have an ulterior motive in putting forward the defamatory statements and also the fact that the article was a report of what Ma had said which, although it was not an answer on the issue of liability, must be a relevant factor to be taken into account in assessing damage.”[15]

33.  Mr Michael Thomas SC, appearing for the plaintiffs,[16] submits that in accepting the argument that the damages were too high because the trial Judge had failed properly to take account of the reported accuser’s lack of credibility, the Court of Appeal erred in two principal ways.  First, he argues that the “low credence” argument is excluded as a matter of law.  Secondly, he submits that even if it is not excluded, there is no factual basis for asserting that few would have believed the accusations.  That, he says, is mere speculation.

F. General damages in libel and appellate interference with an award

34.  An examination of the plaintiffs’ criticisms of the Court of Appeal’s treatment of general damages should begin by considering the objectives of such awards and what the exercise of assessment involves.

F.1   General damages in libel

35.  It is well established that an award of general damages in libel is compensatory in nature.[17] As Sir Thomas Bingham MR pointed out in John v MGN Ltd,[18]such awards have a threefold function:

“The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused.”

36.  Such damages are said to be “at large” since the exercise of assessment necessarily involves a substantial degree of subjectivity.  As Lord Hailsham of St Marylebone LC stated in Cassell v Broome:[19]

“What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large.’”

37.  It follows, as Lord Reid pointed out in the same case,[20] that:

“Any one person trying to fix a sum as compensation will probably find in his mind a wide bracket within which any sum could be regarded by him as not unreasonable - and different people will come to different conclusions.”

That was echoed in this Court’s judgment in Campbell Blakeney-Williams v Cathay Pacific Airways Limited,[21] which is to be handed down on the same day as the present judgment and which I have had the benefit of reading in draft.

38.  In performing the assessment the Court must take into account all the circumstances of the case relevant to determining what would be an appropriate compensatory sum.  In Lord Herschell’s words:

“The damages cannot be measured by any standard known to the law; they must be determined by a consideration of all the circumstances of the case, viewed in the light of the law applicable to them.”[22]

39.  It obviously follows that it is not possible to list exhaustively all the circumstances that may bear on the assessment. However, certain factors have been identified as important.  Thus, in John v MGN Ltd,[23] Sir Thomas Bingham MR stated:

“In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the more closely it touches the plaintiff's personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff's feelings by the defendant's conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way.”

40.  And in Jones v Pollard,[24] Hirst LJ listed as relevant, factors including the following:

“1. The objective features of the libel itself, such its gravity, its prominence, the circulation of the medium in which it was published, and any repetition.

2. The subjective effect on the plaintiff's feelings (usually categorized as aggravating features) not only from the publication itself, but also from the defendant's conduct thereafter both up to and including the trial itself.

3. Matters tending to mitigate damages, such as the publication of an apology.

4. Matters tending to reduce damages, e.g. evidence of the plaintiff's bad reputation, or evidence given at the trial which the jury are entitled to take into account ...

5. Special damages.

6. Vindication of the plaintiff's reputation past and future.”

41.  Pausing here, it seems clear that unless some principle of law operates to exclude it, the poor credibility of an accuser ought to be regarded as relevant to assessing general damages.  Defamatory accusations originating from someone whose credibility is doubted is likely, as a matter of commonsense, to do less harm to the plaintiff’s reputation, cause less distress and require less to vindicate his reputation, than the same accusations originating from an authoritative and credible source.  Unless excluded by some legal principle or as a matter of fact, low credence is a potentially important reason for a lower award.

F.2   Appellate interference with an award

42.  For present purposes, two situations in which an appellate court may seek to interfere with the lower court’s award should be considered.  The first is where it regards the award as manifestly excessive or manifestly inadequate.  And the second is where the award may be vitiated by some error made by the judge in directing the jury as to damages or (more frequently in Hong Kong) an error made in assessing the damages himself.[25]

43.  At first, the appellate courts in England were very reluctant to set aside juries’ awards on the ground that they were too large (or too small).  This was not only because of the subjective nature of such awards but also because they thought it necessary to “guard against frustrating the intention of Parliament that damages in libel cases shall be assessed by a jury”.[26] The appellate courts would only intervene where “the damages are so excessive that no twelve men could reasonably have given them”.[27]  This prompted Lord Donaldson of Lymington MR in Sutcliffe v Pressdram Ltd,[28] to describe the standard as “something in the nature of a Wednesbury test”.[29]

44.  However, as Rantzen v Mirror Group Newspapers Ltd,[30] establishes, the position changed when section 8(1) of the Courts and Legal Services Act 1990 was enacted.  This gave the English Court of Appeal express power to order a new trial on the ground that damages awarded by a jury are excessive or inadequate.  Taken together with the emphasis given to the right of free expression by Article 10 of the European Convention on Human Rights, the English courts have felt bound to intervene more freely should a jury’s award be disproportionately large and therefore pose a threat to free expression.  The test for intervention has been re‑formulated to become: “Could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation?”[31]

45.  In Hong Kong, jury trials in libel cases are a great rarity.  In 1995, Nazareth VP noted in Cheung Ng Sheong Steven v Eastweek Publisher Ltd,[32] that the parties had not been able to trace any other defamation trial by jury in Hong Kong during the preceding 80 years.  A reluctance to impinge on territory ceded to the jury by the legislature has therefore not been a practical consideration in our jurisdiction.  By Order 59 rule 11(4), our Court of Appeal has power to order a new trial or, with the parties’ consent, to substitute its own award, on the ground that the jury’s award is excessive or inadequate.  Moreover, ever since 1991, freedom of expression has been a right protected by Article 16 of the Hong Kong Bill of Rights, and has now been given constitutional protection by Articles 27 and 39 of the Basic Law.  Accordingly, the Court of Appeal’s adoption in the Eastweek case[33] of the lower threshold test applied in Rantzen was entirely well-founded.  A large award made by the jury or the trial Judge can be set aside if the appellate court concludes that a reasonable tribunal could not have thought an award of such magnitude necessary to compensate the plaintiff and re-establish his reputation.

46.  The second basis for interference arises where the award of damages is vitiated because the judge (sitting alone) is “...shown to have arrived at his figure either by applying a wrong principle of law or through a misapprehension of the facts or for some other reason to have made a wholly erroneous estimate of the damage suffered...” [34]  Giving due deference to any advantage the trial judge may have had from assessing viva voce evidence at first hand, the appellate court will not interfere unless the judge is shown to have been “plainly wrong”.  But if the judge took irrelevant factors into account or failed to have due regard to relevant factors and thereby misapprehended the facts in a manner material to the award of damages, the appellate tribunal is bound to intervene.  This reflects the general approach to overturning findings of fact on appeal discussed in Ting Kwok Keung v Tam Dick Yuen.[35]  In the present case, no viva voce evidence was called by either side so that the Court of Appeal was in as good a position as Chung J to address the facts.

G.  Whether low credence is excluded as a matter of law

47.  Mr Thomas relied on three separate but related doctrines in the law of libel in support of his submission that the Court of Appeal was not entitled in law to reduce Chung J’s award on the ground that Ma Chiu Sing’s accusations would have commanded little credibility among ordinary readers.

G.1  The single meaning rule

48.  The first doctrine relied on was “the single meaning rule”.  In every defamation case (not involving an innuendo) the “natural and ordinary meaning” of the words complained of must be ascertained. It is explained in Slim v Daily Telegraph Ltd,[36]by Diplock LJ as follows:

“Where, as in the present case, words are published to the millions of readers of a popular newspaper, the chances are that if the words are reasonably capable of being understood as bearing more than one meaning, some readers will have understood them as bearing one of those meanings and some will have understood them as bearing others of those meanings. But none of this matters. What does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear. That is ‘the natural and ordinary meaning’ of words in an action for libel.”

49.  His Lordship went on:

“Juries, in theory, must be unanimous upon every issue on which they have to adjudicate; and since the damages that they award must depend upon the defamatory meaning that they attribute to the words, they must all agree upon a single meaning as being the ‘right’ meaning. ... But where an action for libel is tried by a judge alone without a jury, it is he who has to arrive at a single ‘right’ meaning as ‘the natural and ordinary meaning’ of the words complained of ...”[37]

50.  Mr Thomas also cited Charleston v News Group Newspapers Ltd,[38] for the following passage in the speech of Lord Bridge of Harwich:

“...where no legal innuendo is alleged to arise from extrinsic circumstances known to some readers, the ‘natural and ordinary meaning’ to be ascribed to the words of an allegedly defamatory publication is the meaning, including any inferential meaning, which the words would convey to the mind of the ordinary, reasonable, fair-minded reader. This proposition is too well established to require citation of authority. The second principle, which is perhaps a corollary of the first, is that, although a combination of words may in fact convey different meanings to the minds of different readers, the jury in a libel action, applying the criterion which the first principle dictates, is required to determine the single meaning which the publication conveyed to the notional reasonable reader and to base its verdict and any award of damages on the assumption that this was the one sense in which all readers would have understood it.”

51.  Mr Thomas seized on the passages cited above essentially for the proposition that the assessment of damages depends solely on ascertaining the single meaning of the defamatory statements.  The rule, he submitted, leaves no room for any inquiry into the credibility of the originator of the libel.

52.  In further support of his argument, Mr Thomas relied on the well-established proposition, which is an aspect of the single meaning rule, that the parties are not allowed to call evidence as to what meaning readers of the defamatory publication ascribed to the words in question.  As Lord Bridge pointed out in Charleston:[39]

“It is precisely the application of the [single meaning] principle ... which, in a libel action where no legal innuendo is alleged, prevents either side from calling witnesses to say what they understood the allegedly defamatory publication to mean.”

53.  The inadmissibility of such evidence, the plaintiffs submit, inevitably means that the purported factor of low credence is excluded.

54.  I am with respect unable to accept the aforesaid argument.  Both Slim and Charleston were cases concerned with rules on how the meaning of the words complained of is to be ascertained.  In Slim, the Court was addressing the relationship between pleaded meanings and the single meaning rule as affecting the defences of fair comment and justification. In Charleston, the House of Lords was rejecting an attempt to ascribe a defamatory meaning to an article based on only a partial reading of the same.  In neither case was there any issue concerning the accuser’s alleged low credibility as affecting the assessment of damages. 

55.  The single meaning rule is but the starting point.  Depending on what that meaning is found to be, the Court or the jury must decide if it is defamatory and may have to decide whether the defendant can justify that meaning or succeed on a fair comment defence (and so on).  The meaning ascertained is certainly also relevant to the eventual award of damages since, in establishing the meaning, it establishes the nature and seriousness of the libellous imputation.  But there is no justification for treating the single meaning established as the sole basis for assessing damages, excluding all other factors. 

56.  There is a self-evident difference between ascertaining what the ordinary, reasonable, fair-minded reader would understand the defamatory words to mean and considering how far such a reader might be expected to believe or be sceptical about the words so understood.  If and in so far as the accuser’s low credibility may be capable of reducing the injurious impact of the defamatory words, consideration of such impact is not excluded by the single meaning rule.

G.2  Evidence of belief or disbelief

57.  The plaintiffs’ second legal argument is that “evidence to prove belief or disbelief in the statement would anyhow have been inadmissible because it would have been irrelevant to the issues that the tribunal of fact had to decide.”[40] Accordingly, they argue, the suggestion that Ma Chiu Sing would have commanded little credibility is inadmissible.

58.  In support, the plaintiffs rely on Hough v London Express Newspaper, Ltd,[41] where Goddard LJ stated:

“In the case of words defamatory in their ordinary sense the plaintiff has to prove no more than that they were published: he cannot call witnesses to prove what they understood by the words; nor will it avail the defendant to call any number of witnesses to say that they did not believe the imputation. The only question is, might reasonable people understand them in a defamatory sense? So when circumstances are proved which will clothe words otherwise innocent with a defamatory meaning the question must equally be: might reasonable people who know the special circumstances understand them in a defamatory sense? If words are used which impute discreditable conduct to my friend, he has been defamed to me, although I do not believe the imputation, and may even know that it is untrue.”

59.  I am unable to accept the plaintiffs’ argument. Hough was not a case about damages.  It was about the evidence needed to establish liability in innuendo cases.  By extension, it shows that the cause of action for defamation is constituted (whether on the basis of an innuendo meaning or the natural and ordinary meaning) by the publication of words which are defamatory and that it is immaterial for the purposes of establishing liabilitythat witnesses can be called to testify that they did not believe the defamatory imputations.  But the case does not bear on the assessment of damages.

60.  The plaintiff, who was married to one Frank Hough, complained that a newspaper had published an article referring to another woman as Frank Hough’s wife, the pleaded innuendo being that the plaintiff was a dishonest woman falsely passing herself off as his wife; and that she was an unmarried woman who had cohabited with and had children by Hough.

61.  As Slesser LJ held, it was necessary for the plaintiff to prove that she was indeed Hough’s wife and known to her acquaintances to have held herself out to be his wife.[42]  Two witnesses were called who gave such evidence but they went on to testify that they in fact knew that the plaintiff was married to Frank Hough.  Rejecting the defence argument based on that evidence, Slesser LJ stated:

“...the mere fact that two ladies knew that Mrs Hough was Hough's wife and so did not regard the article as defamatory upon her, though possibly defamatory upon the curly-headed lady or Mr Hough himself, does not acquit the defendants of liability.”[43]

62.  Such evidence of disbelief is irrelevant to liability – but not to damages.  This appears from what Lord Morris of Borth-y-Gest said in Morgan v Odhams Press Ltd,[44] when, referring to the passage from Goddard LJ’s judgment cited above, his Lordship stated:

“In deciding whether or not the words referred to were reasonably understood as referring to the plaintiff the jury would consider any pieces of evidence which might tend to negative the conclusion that readers reasonably so understood, but if the conclusion were reached that readers did reasonably so understand, then it would be immaterial on this issue whether the readers further believed that the words were true or only partly so believed or declined to believe that they were true. Here I must refer to a contention which was raised in argument. It was submitted that if defamatory words concerning A are published to B who refuses to believe that the words are true, then A would have no cause of action. I consider that such a contention is completely fallacious. Apart from any question affecting the measure of damages (italics supplied) A's rights would be unaffected by the circumstance that B in fact disbelieved the words. I agree with what Goddard LJ said in Hough v London Express Newspaper Ltd [1940] 2 KB 507, 515: ‘If words are used which impute discreditable conduct to my friend. he has been defamed to me, although I do not believe the imputation, and may even know that it is untrue.’”

63.  Lord Morris was clearly concerned with the requirements for establishing the cause of action.  The words I have italicised indicate that while irrelevant as a defence, evidence of readers’ incredulity may be material to the assessment of damages.

G.3  The repetition rule

G.3a The rule

64.  The third legal argument relied on involves the repetition rule which may result in a defendant – often a media organization – being held liable for reporting or repeating a defamatory statement made by someone else.  In Al-Fagih v HH Saudi Research and Marketing (UK) Ltd,[45]Simon Brown LJ explained the rule in the following terms:

“At first blush one might wonder why a correctly attributed and unadopted allegation is defamatory at all; to state that the allegation has been made is, after all, true. Such a report is, however, plainly defamatory under what is known as the repetition rule: a report of a defamatory remark by A about B is not justified by proving merely that A said it: rather the substance of the charge must be proved. A jury cannot be invited to treat the allegation as reported as bearing any lesser defamatory meaning than the original allegation …”

65.  As Hirst LJ explained in Stern v Piper,[46] it is essentially a rule of the law of justification.   It is necessary since a defendant might otherwise defame others with impunity by the simple expedient of publishing the defamation as a second-hand report and then pleading justification on the footing that it was true that the accusation had indeed been made.  In Jameel v Times Newspapers Ltd, [47] Sedley LJ explained this as follows:

“The repetition rule, in essence, prevents a defendant from hiding behind the fact that he is only repeating what others have alleged. He can accordingly not justify the libel by proving that the allegations have been made, but only by proving that they are true.”

66.  As Simon Brown LJ explained in Mark v Associated Newspapers,[48] the defendant may add to the report in a way which either lessens or aggravates the sting of the repeated allegations:

“If, of course, in retailing C’s statement, A says that C is often unreliable so that B should not suppose the statement necessarily to be true, that would certainly mitigate the gravity of the libel. Just as it would aggravate the libel if A said that C’s statements ordinarily turned out to be true.”

67.  But where the defendant cannot justify the original accusation and in repeating it, neither affirms nor disavows it, his repetition is in principle, as Lord Reid expressed it in Lewis v Daily Telegraph,[49] “just as bad as making the statement directly.”

G.3b The operation of the repetition rule in the present case

68.  As previously noted, the defendants acknowledge that they are liable under the repetition rule.  However, they submit that while the Article did not disavow the defamatory statements, neither did it adopt or affirm them.  They point out that the Article was not an investigatory piece putting forward Ming Pao’s own conclusions.  It was merely a report of the fact that Ma Chiu Sing, a man who called himself “the Hong Kong bin Laden”, had held a demonstration outside the High Court and erected a banner containing the defamatory imputations shown in the photograph. 

69.  On that basis, the defendants submit, the repetition rule provides no reason for excluding the low credence argument. The rule treats the repetition as “just as bad” Ma’s original accusations – but no worse.  It follows, so the defendants contend, that the Court of Appeal was entitled to take into account the low credence that ordinary readers would attach to Ma’s statements as a reason for reducing the Judge’s award.

70.  The plaintiffs seek to counter that submission first by pointing to Gatley’s statement, approved by Lord Denning in Truth (NZ) Ltd v Holloway,[50] that:

“Every republication of a libel is a new libel, and each publisher is answerable for his act to the same extent as if the calumny originated with him.”

71.  This, the plaintiffs argue, shows that the liability of the defendant who republishes the libel stands on an independent footing, rendering the allegedly low credibility of the original accuser irrelevant. 

72.  I do not agree.  The repetition is said to constitute a new libel because it gives rise to a fresh cause of action against the person responsible for the republication.  But the reporter is still only liable, as Lord Denning accepted, “to the same extent” as the originator of the calumny.   If the originator’s accusations would be discounted as lacking in credibility, the reporter is answerable only to the same extent. 

73.  The plaintiffs have an alternative argument which runs as follows:  Even if the Court were to accept that Ma lacked credibility so that the impact of his defamatory statements might be mitigated, republication by a reputable paper like Ming Pao gave authenticity and weight to the allegations and of itself constituted a form of affirming their truth. This was particularly so since, as Chung J noted,[51] the Article indicated that Ma had been interviewed by Ming Pao’s reporter, suggesting that Ma’s story was worthy of investigation.

74.  In my view, that argument is not made out.  In the first place, it is clear from the Article that Ming Pao was neither affirming nor denying the truth of the reported accusations.  Where such is the case, I do not accept that the fact of publication of itself can be treated as constituting affirmation of the truth of the reported statements simply because Ming Pao is a reputable newspaper. 

75.  A distinction must be drawn between an article which simply reports that A said X and an article affirming that X is true.  Thus, in Reynolds v Times Newspapers Ltd,[52] in listing certain illustrative factors bearing on responsible journalism, Lord Nicholls of Birkenhead pointed out that: “A newspaper can raise queries or call for an investigation.  It need not adopt allegations as statements of fact.”  And in Stern v Piper,[53] Simon Brown LJ drew this distinction in relation to damages:

“...the repetition rule applies to the publication here complained of. The fact that the defendants did not actually assert the truth of Mr Gorman's allegations may be available to them by way of mitigation of damages; it cannot, however, found a defence.”

76.  As Mr Andrew Caldecott QC, appearing for the defendants,[54] pointed out, republication may occur in a variety of forms ranging from cases where the newspaper expressly endorses the reported allegations as true claiming to have undertaken its own research; down to cases where it merely reports what a person who is self-evidently a rogue and attention-seeker has alleged.  He submits, and I accept, that the law must allow room for considering the varying impacts of such different forms of repetition when damages are assessed.

77.  I do not accept that a reasonable reader was likely to conclude that Ming Pao believed that the allegations on Ma’s banner might be true so as to merit investigation because he had been interviewed by one of its reporters.  Those allegations were only one feature of the story.  Readers might well have considered other aspects sufficiently newsworthy to prompt an interview. This was, after all, a situation where a man calling himself “Hong Kong bin Laden”, who had just been released after serving a sentence of imprisonment for criminal intimidation, was claiming that he had been beaten up by men with sticks and was holding a demonstration outside the High Court.   Such a situation might well warrant an interview and an article on an inside page of the local news section.  The suggestion that ordinary readers would have flocked to the conclusion that Ming Pao was impliedly endorsing the accusations on Ma’s banner is unconvincing.  Indeed, the contents of the banner were not even shown in their entirety in the photograph.

G.4  Low credence relevant as a matter of law

78.  Accordingly if Ma’s low credence is capable of being established as a fact, it would be a relevant factor in the assessment of damages and would not be excluded as a matter of law.   This is consonant with the principle that damages for libel are compensatory and require all the circumstances of the case to be taken into account.[55] 

79.  Mr Thomas cited The Gleaner Co Ltd v Abrahams,[56] for the proposition that libel damages are not solely compensatory but have a deterrent element.  Lord Hoffmann, giving the advice of the Privy Council in that case, stated:

“In the case of any tort, liability to pay damages as compensation for loss or harm is capable of having some deterrent or exemplary effect and this is particularly true of defamation; first because it is an intentional tort and secondly because the conduct of the defendant is capable of aggravating the damages.”[57]

80.  That statement does not detract from the essential point which is that the compensatory aim of the awards requires an accuser’s low credibility to be taken into account in assessing the degree of injury suffered by the plaintiff.  This is so even fully accepting that the award may contain an element of deterrence, especially if aggravated damages are included.

81.  Support for the relevance of low credence can be found in the reported cases.  As noted above, in Morgan v Odhams Press Ltd,[58] Lord Morris of Borth-y-Gest indicated that readers’ disbelief was relevant to damages although such disbelief did not negative the cause of action. 

82.  In Farmer v Hyde,[59] a case where newspapers were sued for publishing a report of an outburst in court by a disreputable person, Slesser LJ clearly considered the accuser’s lack of credibility relevant to damages.  His Lordship stated:

“Sir William Jowitt had argued, quite properly, that the fact that Mr Davidson was a person of very notorious reputation, who had been unfrocked as a priest and had suffered deprivation of his living, reduced any possible damage which the plaintiff might suffer by being criticised by such a person to a very small figure indeed, and that in substance he had suffered no damage at all.”

83.  Further examples can be found in two Canadian cases.  Randall v Weich,[60] a decision of the British Columbia Supreme Court, was a case involving a defendant who was a trade union member who had mounted sustained defamatory attacks on officials of that union.  Esson J identified certain considerations “which militate in favour of a moderate award”, stating:

“... It is almost certain that none of the persons to whom the letter was addressed took its contents as anything other than unsubstantiated allegations ... It is, however, reasonable to assume that the defamation had some effect on others who read or heard of it. For instance, the defendant circulated it to as many Union members as he could reach and some of them must, at least, have had their suspicions aroused.

The damage done was likely not great. The better informed Union members could be expected to understand that the economic terrorism allegations were unfounded and it is members in that group, who attend meetings and pay attention to the affairs of the Union, who would be most likely to receive the message. The allegations of misappropriation of funds and materials are more insidious in their nature but are so lacking in substance and detail that most people would be inclined to dismiss them as the outpourings of a malcontent. I have little doubt that that is the reputation which, by February 1981, Mr Weich had within the Union and that, as a consequence, his credibility was not great. If the accuser lacks credibility, his accusations against persons of good character and reputation for integrity are likely to do little harm.”[61]

84.  A similar approach was taken in the Saskatchewan Court of Queen’s Bench in Kohuch v Wilson,[62] where the defendant had conducted a prolonged campaign against the principal and the director of education of a school.  This was not a repetition case and it was the defendant herself who submitted to the Court that “nobody paid any attention to what she wrote or said”.  McClelland J found that there was “some merit to her argument”.  While he held that the reputations of both plaintiffs must have suffered by reason of the defamatory remarks, he took due note of the defendant’s low credibility:

“... in assessing the loss I am satisfied that many people who were acquainted with the plaintiffs and the defendant were cognizant of the fact that the defendant was prone to making unreasoned and even ridiculous statements concerning the plaintiffs. Most of the statements were such that they would not be taken seriously by the most reasonable minded people.”[63]

H.  Low credence on the facts

85.  I turn then to the second objection raised by the plaintiffs against the Court of Appeal’s acceptance of Ma’s low credibility as a ground for reducing the damages.  The objection is that there was no factual basis for asserting that few would have believed the accusations.  This is an argument that requires the reactions of readers to be considered at two levels: first, in the light of the contents of the Article itself; and secondly in the light of the Article against the background of extrinsic facts concerning Ma Chiu Sing and his soubriquet “Hong Kong bin Laden” not spelt out in the Article.  The plaintiffs argue that at the first level, a reduction was not justified and that the second level approach is impermissible.

86.  Where a publication has a readership of some 110,000, it is quite impracticable to establish the reaction of readers to an offending article by calling evidence.  One obviously cannot call thousands of witnesses and if one were to call a handful or even several dozen, it would not be of much help to the Court in its task of gauging the overall reaction to the Article.  As Mr Caldecott submits, the usual approach, whether by the jury or the judge sitting alone, involves the tribunal drawing educated inferences as to likely reactions of the ordinary, reasonable, fair-minded reader based on the tribunal’s own experience.  The defendants point out that this is a common and necessary approach in various contexts when assessing damages in libel cases:

“...the assessment of damages in defamation is by its nature dependent on elements of informed inference in many contexts. In other cases, rough assessments by educated guess work may have to be made as to how many readers are likely to have read the sport or business pages (when clearly not all do) or how many of the original readers are likely to have read a published clarification and apology. This is necessarily an inexact science. That does not in any way make the conclusion ‘speculative’ in the pejorative sense.”[64]

H.1  Low credence from the contents of the Article

87.  The Court of Appeal was entitled to draw inferences as to the likely reaction of the ordinary reader by looking first at the Article as a whole, setting the context for the defamatory words in Ma’s banner.

88.  Such a reader would undoubtedly have noticed that a striking and conspicuous feature of the Article was that Ma Chiu Sing was referred to as “the Hong Kong bin Laden” in the heading and body of Article, as well as in the photograph’s caption.  Reading the text, he would have seen that “Hong Kong bin Laden” was a name Ma gave to himself although the Article does not state why.  One is entitled to conclude that this in itself would have raised doubts as to Ma’s credibility in the mind of the ordinary reader. Judicial notice may be taken of the fact that “Hong Kong bin Laden” must have been a reference to Osama bin Laden and that Ming Pao’s readers would have known that Osama bin Laden orchestrated the 9/11 attacks, a fact which had gained worldwide notoriety.  Ma was therefore likening himself to an infamous terrorist responsible for the deaths of thousands of innocent people.  As right-thinking members of society, they are likely to have questioned why anyone would wish to do this.  Ma’s mental stability would have come into question and such readers would inevitably have viewed what Ma had written on his banner with great reserve, to say the least. 

89.  The reader would also have seen from the Article that Ma had just emerged from prison having been sent there for criminal intimidation against the ODN.  That fact, together with his outpourings of invective against that newspaper and members of the Ma family would undoubtedly have indicated to the ordinary reader that Ma Chiu Sing obviously hated the plaintiffs and had a huge axe to grind.  The fair-minded reader would inevitably have taken this as another important reason for questioning the credibility of his accusations.

90.  As to the allegation that he had been framed by the plaintiffs, an ordinary reader who gave the matter any thought is likely to have assumed that Ma must have alleged such a frame-up in his defence.  It would therefore follow that such allegations had been scrutinised and rejected by the Court which had convicted him, adding to the low credibility of those allegations.

91.  In the context of a libel action, the focus is of course on the defamatory imputations.  However, to the ordinary reader, there was considerably more to the story than the contents of Ma’s banner. Coming across the Article, an ordinary reader would have seen that it was a report of a demonstration with the newsworthy features discussed in Section G.3b of this judgment.  It is commonplace for all kinds of demonstrations to be reported without causing readers to think that the newspaper agrees with or supports whatever the demonstrators may be saying.  Readers would have seen (as I have already held) that, while not disavowing them, the Article was not suggesting that Ma’s allegations were true. 

92.  Pausing at this point, the aforesaid matters do not appear to have been considered by Chung J who dismissed the “low credence” argument essentially on the basis that the earlier poisoning incidents were not mentioned in the Article and were unlikely to be remembered by readers.[65] Chung J also appears to have thought that the report of Ma’s claim that he had been assaulted on leaving prison[66] weighed in some way against the defendants even though the plaintiffs had made no complaint about that part of the publication. 

93.  More worryingly, in assessing damages (under the heading “Mitigation of Damages”), Chung J appears to have attributed malice to the defendants, stating: “... the suit article has been edited in a manner which does not sit entirely comfortably with the lack of malice”.[67]  That was not a finding open to the Judge, malice not having been pleaded or alleged by the plaintiffs.  In the course of the hearing, Mr Thomas abandoned any reliance on malice.

94.  In my view, for the reasons given above (and later in this Section), it was open to the Court of Appeal to set aside the Judge’s assessment and substitute its own award of damages.

H.2  Low credence from extrinsic matters

95.  The Court of Appeal referred to Ma Chiu Sing several times as “a notorious criminal”.  It evidently proceeded on the basis that many ordinary readers would have been aware that Ma Chiu Sing was “the Hong Kong bin Laden” who had been responsible for terrorist threats and poisoning activities leading to his conviction and imprisonment some years earlier. Quite apart from the alarm bells sounded by what was in the Article itself, readers who made that connection would obviously have had even greater reason to disbelieve Ma’s accusations against the plaintiffs.  Mr Thomas, however, argues that the Court of Appeal’s approach was not legitimate but consisted of no more than speculation as to what readers might or might not have remembered and believed.

96.  As I have already indicated, for reasons of practicability, in non-innuendo cases, the Court generally does not expect witnesses to be called to establish the reactions or extent of knowledge of a newspaper’s readership, proceeding instead on the basis of educated guesses or informed inferences.  In the present case, the facts relating to Ma’s criminal conduct and adoption of the nickname “Hong Kong bin Laden” were pleaded by the defendants in support of their “not defamatory” defence and, while no viva voce evidence was called, there was in evidence before the trial judge, a thick file of news clippings showing that there had been extensive media coverage of Ma’s criminal activities and the other matters described in Section D of this judgment.  As we have seen, the defendants failed in their “not defamatory” defence. However, the aforesaid evidence was available in aid of an argument for reducing the damages.  Thus, in Pamplin v Express Newspapers Ltd,[68] Neill LJ stated:

“... the defendant is also entitled to rely in mitigation of damages on any other evidence which is properly before the court and jury. This other evidence can include evidence which has been primarily directed to, for example, a plea of justification or fair comment. ... There may be many cases ... where a defendant who puts forward a defence of justification will be unable to prove sufficient facts to establish the defence at common law and will also be unable to bring himself within the statutory extension of the defence contained in section 5 of the Defamation Act 1952. Nevertheless the defendant may be able to rely on such facts as he has proved to reduce the damages, perhaps almost to vanishing point. Thus a defence of partial justification, though it may not prevent the plaintiff from succeeding in the issue of liability, may be of great importance on the issue of damages.”

97.  In my view, it was legitimate for the Court of Appeal to infer, on the basis of the evidence of widespread and no doubt sensational media coverage of Ma’s threats and activities in 2001; his trial and conviction in 2002; and his appeal and its outcome in 2004; that a significant number of Ming Pao readers would have been exposed to such coverage and would , in 2008, have remembered enough to link the accuser, calling himself “the Hong Kong bin Laden” in the Article, with the man who had earlier sought to terrorise Hong Kong.  It was unnecessary to assume any detailed recollection of the earlier events.  It would have been sufficient to attribute to such readers the recollection that someone who proclaimed himself the “Hong Kong bin Laden” had tried to terrorise Hong Kong with threats of indiscriminate poisoning and had ended up in prison.  Once such readers realized that the Article was about a demonstration being mounted by the same man – still calling himself the “Hong Kong bin Laden” – Ma’s credibility would have been further, if not wholly, undermined.  The Court of Appeal of course accepted that this would not apply to all Ming Pao readers who saw the Article in 2008, holding as it did, that some readers might find the accusations credible, thereby founding Ming Pao’s liability.

98.  The foregoing approach is, in my view, consistent with Lord Reid’s guidance on how to assess the impact of defamatory words on the ordinary reader.  In a well-known passage in Lewis v Daily Telegraph,[69] his Lordship stated:

“...in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.”

99.  In the present case, the Court of Appeal was entitled to attribute to a segment of Ming Pao’s readers, sufficient knowledge of the circumstances in which Ma came to call himself “Hong Kong bin Laden”, reading between the lines of the Article with the result that Ma’s credibility was further diminished.

100.  Indeed, ODN’s own piece, published on 12 April 2008 as a riposte to the Article, sits uncomfortably with the contention that it was merely speculation for the Court of Appeal to think that many readers would not believe Ma’s accusations.  ODN pointed out that:  “Ma Chiu Sing calls himself ‘Hong Kong bin Laden’.  (That means) he is, as his name suggests, a terrorist”.  It went on to say that Ma was acting “only to vent his own hatred” and, tellingly, then stated: “... no matter what kind of show Ma Chiu Sing puts up, people will just see him as a clown.”  ODN was, in other words, saying that people would give no credence to his accusations.

H.3  Ming Pao’s retraction

101.  A glaring omission on the Judge’s part was his failure to mention at all the fact that three days after the Article was published, there appeared in Ming Pao a further article with the heading: “Ma Chiu Sing’s comments did not represent Ming Pao’s stance.”  It expressly disavowed the truth of Ma’s accusations:

“Ma’s views did not represent the stance of Ming Pao, and the readers would also understand that the relevant comments were accusations from Ma alone and could not represent the truth.”

102.  Such a retraction or disavowal is of obvious importance to the assessment of damages.  It vindicated the plaintiffs after three days and was thereafter available to them to answer any queries they might receive about Ming Pao’s libellous allegations. 

H.4    The awards taken as comparators

103.  As the Court of Appeal pointed out,[70] Chung J provided little explanation for the sums he awarded by way of general damages.  He listed six cases[71] relied on by the plaintiffs without analyzing how, if at all, they might be relevant or comparable, and noted that the highest award was $3 million and the lowest $200,000.  After referring to the defence arguments that those awards are fact-specific and that excessive awards might impede free expression, his Lordship referred back to his earlier discussion of liability and concluded that an award of $1.5 million should be made in C K Ma’s favour.  He decided that ODP was in a similar position to the plaintiff in Yaqoob v Asia Times Online Ltd,[72] and so awarded it $150,000.

104.  The Court of Appeal was quite entitled to be dissatisfied with the Judge’s approach.  The cases listed by the Judge are not analogous and cannot help to set the framework for an award.  None of the listed cases were repetition cases.  On the contrary, Yaqoob, relied on by the Judge, as well as Chu Siu Kuk Yuen,[73] Charles Sin Cho Chiu,[74]and the twoHung Yuen Chan Robert cases[75] were all purportedly pieces of investigative reporting where the newspapers were asserting the truth of their own reports after having allegedly researched the stories.  In Tang Chui Yuk Angela,[76] Chung J noted the plaintiff’s submission that “the parties’ relationship gave an impression of credence to D1’s libel”.  In none of the cases except Chu Siu Kuk Yuen,[77] was there a retraction.  And in many of the cases, the defamatory imputations were much more serious and so not at all comparable with the present case.

105.  By way of contrast, the Court of Appeal listed six reports of libel actions involving newspapers or media organizations suing each other and pointed out that those awards ranged between $50,000 and $150,000.[78]

106.  Such exercises must be approached with great caution since it will frequently be possible to distinguish previous cases on various grounds.  The media cases listed by the Court of Appeal may, for instance, be said to involve only corporate plaintiffs and to concern less serious imputations since, with the exception of Oriental Press Group Ltd v Fevaworks Solutions Ltd,[79] the relevant plaintiffs were not accused of criminal conduct.

107.  Nevertheless, in my judgment, the Court of Appeal was plainly right to find that insofar as the Judge relied on the six cases he listed for setting a bracket for his award, he fell into error.

I.  Conclusion as to general damages

108.  For the foregoing reasons, my conclusion is that the Court of Appeal were entitled to set aside the awards of general damages and to substitute their own.  Chung J’s awards were vitiated by his failure to give proper weight to Ma’s low credibility; by his failure even to mention Ming Pao’s retraction; by his inadmissible introduction of malice into the assessment of damages; and by his adoption of inappropriate comparators for bracketing his awards.

109.  It is also my view that the question – “Could a reasonable jury have thought that these awards were necessary to compensate the plaintiffs and to re-establish their reputations?”[80] – warrants a negative answer in the present case.  I agree with the Court of Appeal’s view that Chung J’s awards were manifestly excessive on the present facts. 

110.  It may be arguable that in the light of Ming Pao’s publication to its much wider readership and of the awards in the media cases listed by the Court of Appeal,[81] the damages substituted are on the low side.  However, taking the features of the case as a whole, I do not consider the substituted awards so low as to justify this Court’s interference.

J.   Aggravated damages

111.  The Judge awarded each plaintiff HK$75,000 by way of aggravated damages.  He thought this “a borderline case” but did not spell out the basis of his award.  His Lordship merely stated:

“64. The plaintiffs rely on the defendants’ refusal to apologise and stubborn persistence in disputing liability, as well as their ‘overall motives and conduct’ as matters justifying the making of such an award (para. 73, plaintiffs’ opening).

65. I consider this to be a borderline case. The denial of liability has no merits. On the other hand, the trial has been conducted in an efficient and sensible manner. There is no vigorously conducted defence as regards liability, nor trial conduct which shows bad faith.

66.  At the end, I find the overall circumstance to justify a modest award to be made under this head of claim.  Accordingly, each plaintiff will be awarded a sum of $75,000.”

J.1   The object of awarding aggravated damages

112.  Aggravated damages are part of the compensatory award and may be granted to “compensate for additional injury caused to the plaintiff's feelings by the defendant's conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way.” [82]  

113.  In McCarey v Associated Newspapers,[83] Pearson LJ gave as examples of such aggravating conduct:

“... any kind of high-handed, oppressive, insulting or contumelious behaviour by the defendant which increases the mental pain and suffering caused by the defamation and may constitute injury to the plaintiff's pride and self-confidence...”

J.2   Corporations and aggravated damages

114.  Since aggravated damages are awarded to compensate for increased injury to a person’s feelings, the defendants challenge the Judge’s award in favour of ODP contending that companies, like ODP, do not have feelings susceptible to such injury or increased injury. 

115.  The logic of the challenge is hard to fault.  It finds convincing support in the authorities.  In Lewis v Daily Telegraph,[84] Lord Reid put it succinctly: “A company cannot be injured in its feelings, it can only be injured in its pocket.”  The point was dealt with fully in Collins Stewart Ltd v Financial Times Ltd,[85] where Gray J stated:

“It appears to me from those authorities that Mr Browne is right when he says that the defining characteristic of an award of aggravated damages is that its function is to provide a claimant with compensation (‘solatium’) for injury to his or her feelings caused by some conduct on the part of the defendant or for which the defendant is responsible. The concept of injury to feelings runs through the cases, whether caused by the high-handed or insulting behaviour of the defendant either before or after publication or by repetition of the libel or by persistence in a plea of justification or by a failure to apologise. It seems to me that the essence of an award of aggravated damages in libel is not making good damage to the claimant's reputation as such but rather compensating the claimant for the extra injury to his or her feelings. ... If that be the correct analysis of the proper function of aggravated damages, it seems to me to follow that aggravated damages are in principle not available to a corporate claimant. The reason is that, as Mr Spearman rightly concedes, a company has no feelings to injure and cannot suffer distress: see Lewis v Daily Telegraph [1964] AC 234 , per Lord Reid at 262.”

116.  As Mr Caldecott points out, Gray J’s judgment has been endorsed in all the leading textbooks.[86]

117.  Mr Thomas advances two arguments with a view to persuading the Court not to adopt Gray J’s analysis.  First, he relies on Messenger Newspapers Group Ltd v National  Graphical Association,[87] in which Caulfield J stated:

“Certainly exemplary and aggravated damages can be awarded against inanimate legal entities like limited companies, and I cannot see any reason why the same legal entities cannot be awarded aggravated and exemplary damages.”

118.  Messenger Newspapers does not assist the plaintiffs.  Caulfield J was not in fact saying that companies are able to claim damages for injured feelings.  He was at pains to state that his award had nothing to do with injured feelings:

“Injured feelings of the plaintiff is only one aspect in considering aggravated damages. The more important element is where the injury to the plaintiff has been aggravated by malice or by the manner of doing the injury; that is, the insolence or arrogance by which it is accompanied. For a human being whose feelings exist, my award would have been higher, but I eliminate human feelings from my award. I see no reason why a limited company should not be awarded aggravated damages just like a human being. There is no reason why the present plaintiff should not recover. Of course, that aggravated damages can be awarded on the facts of this case is my main finding on this item, but I am not including any damages for injured feelings. I have approached the question on the manner of the doing of the injury and on the basis which I think is right, that the compensatory award which I have earlier made is not adequate.”[88]

119.  I respectfully agree with Gray J’s explanation of Caulfield J’s judgment, as follows:

“...he was eliminating from the award of aggravated damages which he went on to make the element of injury to feelings. That fact, together with the tenor of the passage relied on by Mr Spearman, suggests that the additional damages which the judge awarded to the corporate claimant in that case were in truth what would nowadays be labelled exemplary damages. I note that the rationale for the award was that the award of compensatory damages was ‘not adequate’.”[89]

120.  The second argument advanced on the plaintiffs’ behalf relies on principles of agency law.  Their printed case puts this as follows:

“A company can only act through its agents, normally its board of directors. A corporate victim of a libel can only react to a libel through its agents. One or more of the directors will suffer the usual responsibility and consequent strain that goes with initiating and conducting litigation for the company and suffering the consequences of the Defendants’ conduct. There is simply no reason why the feelings and forbearance of the corporate victim’s directors and responsible agents in reaction to the Defendants’ intransigence (which will be the same as for an individual Plaintiff) cannot be attributed to the company.”[90]

121.  Support is sought from a passage from Lord Hoffmann’s judgment in Meridian Global Funds Management Asia Ltd v Securities Commission:[91]

“Any statement about what a company has or has not done, or can or cannot do, is necessarily a reference to the rules of attribution (primary and general) as they apply to that company. Judges sometimes say that a company 'as such' cannot do anything; it must act by servants or agents. This may seem an unexceptionable, even banal remark. And of course the meaning is usually perfectly clear. But a reference to a company 'as such' might suggest that there is something out there called the company of which one can meaningfully say that it can or cannot do something. There is in fact no such thing as the company as such, no ding an sich, only the applicable rules. To say that a company cannot do something means only that there is no one whose doing of that act would, under the applicable rules of attribution, count as an act of the company.”

122.  This second argument must likewise be rejected. Lord Hoffmann was dealing with the general operation of rules of attribution to be found in the company’s constitution, rules implied by company law, the principles of agency and so forth as the basis for determining whether the acts of certain individuals should be attributed to the company in question.  But Lord Hoffmann makes it clear that there are cases:

“... when a rule of law, either expressly or by implication, excludes attribution on the basis of the general principles of agency or vicarious liability. For example, a rule may be stated in language primarily applicable to a natural person and require some act or state of mind on the part of that person ‘himself,’ as opposed to his servants or agents. This is generally true of rules of the criminal law, which ordinarily impose liability only for the actus reus and mens rea of the defendant himself.”[92]

123.  Plainly, the rule in the law of libel which provides for aggravated damages as compensation for increased injury to a person’s feelings is precisely such an excluded rule.  Moreover, aggravated damages are in principle only available as an increased award of compensatory damages in favour of a plaintiff who has a good cause of action.  If a company director has in own cause of action, no problem arises.  But if the cause of action lies in the company and not in the director, the latter’s hurt feelings have no bearing on the damages recoverable by the company.

124.  Lord Hoffmann’s judgment in Jameel v Wall Street Journal Europe Sprl,[93] clearly indicates he would not have been prepared to equate the position of companies with the position of individuals as the plaintiffs suggest.  His was a dissenting judgment, but that does not matter for present purposes.  The House of Lords was split on the issue of whether a trading company which conducted no business but had a trading reputation within the jurisdiction was entitled to recover general damages for libel without pleading or proving special damage.  While it was accepted that a human plaintiff does not need to prove such harm, Lord Hoffmann, agreeing in dissent with Baroness Hale, held that companies stood on a wholly different footing:

“In the case of an individual, his reputation is a part of his personality, the ‘immortal part’ of himself and it is right that he should be entitled to vindicate his reputation and receive compensation for a slur upon it without proof of financial loss. But a commercial company has no soul and its reputation is no more than a commercial asset, something attached to its trading name which brings in customers. I see no reason why the rule which requires proof of damage to commercial assets in other torts, such as malicious falsehood, should not also apply to defamation.”[94]

A company without a soul, whose reputation is merely a commercial asset, is hardly likely to be regarded as having feelings capable of being injured, whether borrowed from its officers or employees or otherwise.

125.  It is accordingly my view that the law as stated by Gray J in Collins Stewart Ltd v Financial Times Ltd represents the law applicable in Hong Kong.  I note that Deputy High Court Judge Peter Ng SC reached the same conclusion in Oriental Press Group Ltd v Inmediahk.net Limited.[95]  It follows that ODP, being a company, was not entitled to claim aggravated damages and its appeal on that issue must be dismissed.

J.3   The personal plaintiff’s claim for aggravated damages

126.  As we have seen, the aim of aggravated damages is to compensate for increased injury to feelings caused by the defendant’s post-publication conduct.  Only two matters are relied on as grounding this claim, namely, “stubborn persistence” in defending the action and the absence of an apology.

127.  Mr Caldecott’s first objection to this claim is that C K Ma did not testify that he was upset or distressed by either of the two matters relied on and provided no evidential basis for an award.  Mr Thomas sought to counter this by submitting that aggravated damages are to be presumed just by looking at the matters complained of. 

128.  I cannot accept that submission.  It is of course well-established that for the purposes of constituting the cause of action in defamation, some damage is presumed in favour of the plaintiff of whom defamatory words have been published.[96] But there is no basis for presuming that a plaintiff has suffered aggravated mental pain and suffering in any particular case.  That must be a matter of evidence, depending on the circumstances, such as the robustness or vulnerabilities of the plaintiffs in question.  Thus, in McCarey v Associated Newspapers Ltd,[97] Diplock LJ looked to the jury to assess the impact of the libel on the plaintiff’s feelings in the light of his evidence in the witness-box :

“...having seen the plaintiff (as we have not), the jury were in a position to form their own view of his personality and to assess the grief and annoyance which the libel would cause him as the sort of person they thought him to be.”

129.  Without any evidence regarding injury to C K Ma’s feelings, his claim for aggravated damages cannot succeed. I wish, however, to add a few words about the two matters relied upon as a source of aggravation. 

130.  The first is the allegedly “stubborn persistence” in defending the action.  It is important that one does not lose sight of the purpose for which aggravated damages are awarded, namely, as compensation for injury to feelings caused by the defendant’s post-publication conduct. The authorities give as relevant examples high-handed, oppressive, insulting or contumelious behaviour in the conduct of the case.  One sees at once that a causal connection exists between that kind of conduct and aggravated injury to the plaintiff’s feelings.  The conduct must be of a kind that rubs salt into the wound.  Thus, persisting in an unsustainable defence of justification fits the bill.  It aggravates the hurt to insist without foundation that the defamatory accusation is true. 

131.  But the defence in the present case is qualitatively different.  Far from Ming Pao saying that Ma’s allegations were true, it was saying that no one could possibly have taken them seriously, so that they would not have lowered the plaintiffs in anyone’s estimation and were not defamatory.  No doubt the plaintiffs would have preferred the defendants to admit liability, but their persistence in their defence cannot reasonably be said to have aggravated the injury.

132.  Indeed, even in cases where justification is pleaded but eventually fails as a defence, it by no means necessarily follows that an award of aggravated damages is merited.   This is pointed out by Lord Neuberger of Abbotsbury NPJ in Campbell Blakeney-Williams v Cathay Pacific Airways Limited:[98]

“ In my view, it is wrong in principle to award aggravated damages to a plaintiff in a defamation case, solely because the defendant has decided in good faith to raise a defence of justification, which is then run in a reasonable way. The fact that the defence fails, even in a case where the court regards it as not merely wrong but weak, is not enough, on its own, to bring aggravated damages into play. I agree with what is said in the following passage in para 39-046 of McGregor on Damages (18^th edition):

‘Certain dicta may ... suggest an unsuccessful plea of justification is per se evidence of malice and ground for increasing damages, but it is submitted that it can only be so if the plea is completely unsupportable in the circumstances: otherwise an unwarranted risk would be added to defendant's attempt to set up the truth of the alleged defamation.’”

133.  The second matter relied on by the plaintiffs is the absence of an apology.  Again, it is necessary to consider the qualitative context.  As Neill LJ pointed out in Rantzen v Mirror Group Newspapers Ltd,[99] “the relevance of the absence of an apology depends upon the facts of the case”.  One must consider whether in the context of the case, a failure to apologise has a tendency to aggravate the injury to feelings. 

134.  The point is illustrated in Morgan v Odhams Press Ltd,[100] where Lord Reid stated:

“The learned judge directed the jury that they could take into account the fact that there had never been a word of apology from the respondents. In an ordinary case where the statement alleged to be defamatory clearly was made of or concerning the plaintiff an apology may well go to mitigating damages. Whether mere failure to make an apology can ever justify aggravation of damages may be doubted — I need not decide that here. In the present case I do not see what room there was for an apology. The respondents' case throughout was that they never said anything at all about the appellant. The question for the jury was whether what they said should be regarded as applying to him or not. To have apologised — I do not know how — might have seemed to be going some way towards admitting that they had defamed the appellant. I think that here there was a misdirection.”

135.  It is now generally accepted that the absence of an apology in the particular circumstances of a case is capable of resulting in aggravated damages.[101] However, that does not detract from Lord Reid’s observation: maintenance of a particular defence may leave no room for an apology and no aggravation of the injury may flow from the failure to apologise.  That applies to the present case.  The defendants were entitled to contend, even though they were eventually to fail, that Ma’s low credibility deprived Ming Pao’s republication of any defamatory effect.  To penalise them in aggravated damages for not apologising would unjustifiably imply that they were in effect required to admit liability.

K. Conclusion

136.  For the foregoing reasons, I would dismiss the plaintiffs’ appeal and make an order nisi that they pay the costs.  I would direct that any submissions on costs should be made in writing and lodged with the Registrar within 14 days of the date of this judgment, with any written replies lodged within 14 days thereafter; and in default of such written submissions, that the order nisi should stand as an order absolute without further order.

Lord Neuberger of Abbotsbury NPJ:

137.  I entirely agree with the judgment of Ribeiro PJ, to which there is nothing I wish to add, except a few additional words on the single meaning rule (‘the rule”) and its inapplicability on the main issue raised on this appeal, as discussed in Part G.1 of the judgment.

138.  Although the rule is “too well established to require citation of authority” in defamation cases according to Lord Bridge[102], it has been criticized, for instance as “artificial”[103] and (impliedly) irrational[104] by Diplock LJ. In my view, such criticism is misplaced.

139.  As it has been developed and explained, the rule applies in any case where the court is considering whether a particular statement was defamatory. In such a case, the first question to be considered must, of course, be: what did the statement mean?

140.  That is a question which arises in many areas of law, most notably perhaps in cases involving the interpretation of statutes, contracts and notices. Conventionally, the question admits of only one answer, to be arrived at by reference to the words used when assessed in their context, documentary, factual and common sense. This is true even where more than one meaning is possible. Thus, even where a notice was held, as a matter of interpretation, to take effect on one day by two Law Lords and on another day by three of their colleagues, the notice had a single meaning as a matter of law, and took effect on the latter day[105].

141.  Although things may be very different in the world of linguistic philosophy, the single meaning rule makes obvious good sense in the world of legal interpretation; indeed it is essential. While the consequences of applying the rule may sometimes seem a little harsh, if a court could hold that a provision in a statute, a contract or a notice could, as a matter of law, have more than one meaning, it would self-evidently lead to chaos and uncertainty in many cases, both in outcome and in procedure.

142.  If the single meaning rule did not apply in defamation, it would similarly lead to greater uncertainty in outcome and increased legal expenses. Instead of a statement with two possible meanings giving rise to a problem requiring a binary resolution, it would give rise to a problem which had a multiplicity of potential answers, along what might be seen as a continuous spectrum.  Abolition of the single meaning rule would also lead to the dispiriting, expensive, and time-consuming prospect of many witnesses being called by each party, to explain how they understood the statement in question.

143.  The reason that the rule is invoked by Mr Thomas SC in this case is to undermine, as a matter of principle, Ming Pao's argument that the great majority of readers of the defamatory statement in a newspaper article it published, would not have believed defamatory statements which it included, or at least would have been very sceptical about the truth of those statements. But that argument has nothing to do with the meaning of the article, which is what the rule is concerned with.

144.  So the question raised by Mr Thomas’s argument is whether the rule should be extended to the issue of whether, and the extent to which, a defamatory statement would be believed. In my view, it should not.

145.  In a defamation case, having decided, what the statement in issue means, the court must then decide if it is defamatory of the plaintiff. If so, liability for defamation is established, and the court must go on to decide what damages the plaintiff is entitled to. It is at that stage that the issue of credibility, or credence, comes into play.

146.  It seems to me that it would be contrary to principle if, when assessing those damages, the court could not take into account the degree of credence which readers of an article would give, and would be appreciated by the plaintiff to give, to the accuracy of any defamatory statement it contained. As in any case of tort, it is a fundamental principle that (subject to any question of exemplary damages, which do not arise here) damages are meant to be compensatory, and that principle would be breached if this factor had to be ignored.

147.  When engaged on the relatively objective exercise of interpreting the article, it is clear that the court is bound to take into account any relevant factual circumstances which existed at the time of the publication. It would therefore be very strange if the court could not take into account any relevant factual circumstances when considering the more subjective question of the extent, if any, to which any statement in the article would have been believed. One of the most obviously relevant factual circumstances in case such as this, I would have thought, would be the credibility of the defamatory statements, bearing in mind Ma’s notorious history as relayed in Ribeiro PJ’s judgment.

148.  It is true that some of the practical arguments in favour of the rule, alluded to above, could be invoked to support the contention that its application should be extended so as to apply as Mr Thomas argues. However, it seems to me that a judge, supplied, as happened in this case, with admissible objective evidence to show why the defamatory statement in question was unlikely to be given much, or, in an extreme case, any, credibility, should be able properly to take that factor into account when assessing damages, without the need for any subjective evidence, which, in agreement with Mr Caldecott QC, I consider would, at least normally, be inadmissible on such an issue.

Chief Justice Ma:

149.  For the above reasons, the appeal is dismissed. As to costs, the Court makes order nisi in the terms as set out in the final paragraph of Ribeiro PJ’s judgment.