ROBERT HUNG YUEN CHAN v. HONGKONG STANDARD NEWSPAPERS LTD AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The Plaintiff is a practising solicitor. He was appointed Honorary Vice-Consul for the Republic of Paraguay in Hong Kong by Presidential Decree dated November 29, 1989. The appointment was acknowledged by the Queen on March 9, 1990 and gazetted on May 1, 1990. By Presidential Decree No.933 dated August 11, 1994, the Plaintiff's functions as Honorary Vice-Consul of the Republic of Paraguay in Hong Kong were terminated.

2. The Plaintiff complains about an article that appeared on the front page of the Hongkong Standard on September 15, 1994. The offending article was in the following terms:

3. On September 20, 1994, the Plaintiff commenced the present action against the proprietors of the newspaper Hongkong Standard Newspapers Limited, the editor of the newspaper Mr Wong Chun Tung, the printers Sing Tao Limited and the authors of the article Mr Neville de Silva and Rukie Hussain.

4. In his Statement of Claim, the Plaintiff pleads that the article in its natural and ordinary meaning meant and was understood to mean-

5. The Defendants admit the second of the meanings set out above but deny that it bore any defamatory meaning. There is also a plea of justification but the Defendants have not pleaded the defamatory meaning of the words that they are prepared to justify.

The Plaintiff's evidence

6. As noted above, the Plaintiff is a solicitor whose practice is in banking, finance and commercial matters. He was admitted in 1983 and 10 years later, set up his own firm. Prior to becoming a solicitor he had been the Group Public Relations Officer of the Swire Group.

7. The day before the article appeared, the Plaintiff received a telephone message to return a call to a Miss Rukie Hussain, who is the 5th Defendant in these proceedings. When he did so, the 5th Defendant asked him whether he was the Honorary Vice-Consul of Paraguay, to which the reply was yes. Her next question was whether the Plaintiff was aware of any passport scam to which the answer was no. She then said that it had been mentioned in a newspaper in Paraguay. When the Plaintiff asked for a copy to be faxed to him, the 5th Defendant said that she had not seen the article herself but that her colleague had seen it. The Plaintiff chided her for raising such a matter when she had not seen the report herself. Her retort was "Then you have nothing to say on this." The Plaintiff disagreed. He said "When you raised -- asked a question," -- I said, "I am not aware of the passport scam. And you should quote me -- you can quote me and you will quote me."

8. After this interchange, the 5th Defendant asked the Plaintiff why his appointment had ceased. To this, the Plaintiff replied, "Well, this is quite a normal procedure. A new president was elected last year. And in fact, my appointment should have been terminated last year" - or "end of last year." That was the end of the conversation and the article appeared the following morning.

9. The Plaintiff testified that he considered it normal procedure because senior officials in power had all been changed with the change of government and the Honorary Consul General's appointment had been terminated, so the Plaintiff considered that the termination of his appointment would only be a matter of time as this kind of appointment needed the blessing of those in power. As he did not know the officials then in power, he expected it to be a matter of routine that his appointment would be terminated.

10. When the article was brought to the Plaintiff's attention the next day, he felt shocked, humiliated and outraged. Later that morning, he spoke to the 2nd Defendant Mr David Wong who is the Editor in Chief of the Hongkong Standard. He told Mr Wong that his appointment came to an end not by dismissal but by simple termination. The Presidential Decree stating this was faxed to Mr Wong who said he would look into the matter.

11. Shortly after midday, the Plaintiff spoke to the 4th Defendant who is the Diplomatic Editor of the newspaper. The 4th Defendant informed him that "those paragraphs about you were not put in by me." When the Plaintiff complained that the article was damaging to him as he is a solicitor, the 4th Defendant said that he was the one who followed the story and knew that it had nothing to do with the Plaintiff. As to the paragraph which talked about "the sackings" by the Paraguayan authorities, the 4th Defendant replied that that was not the word that he had used in his manuscript because "London only confirmed the termination" and he was unable to explain how the word "sackings" came to be used.

12. Late that afternoon, after seeking legal advice, the Plaintiff spoke to Mr David Wong again, informing him that the Plaintiff's solicitors would be sending him a letter which would demand an apology from the newspaper. Mr Wong indicated that they were still considering the position and would probably write a follow-up article to clarify the position. He said it would not be possible to let the Plaintiff have a preview of that article and that if a letter from the Plaintiff's solicitors were received, the Defendants would have to seek legal advice and if their lawyers did not think that an apology was needed, then "the whole thing could drag on for a long time."

13. The Plaintiff's solicitors did send a letter dated September 15, 1994 to the Chief Editor of the Hongkong Standard complaining about the article, stating that the allegations that the Plaintiff had been "dismissed or sacked from his office as Honorary Vice-Consul of Paraguay" were highly defamatory of him. The letter asked, inter alia, for the publication of an apology in the terms set out below, in as prominent a position as the article complained of.

14. The apology sought was in the following terms:

15. No apology was ever published. On September 20, 1994, the writ in this action was issued. On the same day, the Defendants' solicitors wrote to deny that the article was defamatory of the Plaintiff.

16. Notwithstanding what the 4th Defendant had told the Plaintiff, one of the defences raised is justification. The Plaintiff felt annoyed but at the same time he was also quite worried: he did not know whether there was something that the newspaper knew that he did not. It was not until March 1995, when the Defendants stated in their response to a request for further and better particulars regarding the plea of justification, that no misconduct was alleged that the Plaintiff's worries on this front were allayed.

17. On June 11, 1996, for the first time, the Plaintiff saw a copy of a document dated May 24, 1996 issued by the Cabinet Office of the Ministry of Foreign Affairs, certifying:

"that the duties of [Mr S.S. Chan and the Plaintiff] which were exercised in the capacities of Honorary Consul General and Honorary Vice-Consul of Paraguay in Hong Kong, respectively, were terminated by Decrees of the Executive Power Nos.4762 and 5128 dated 18 July 1994 and 11 August of the same year. This step was taken on the basis of alleged irregularities which occurred at the Consulate, about which accusations were made and which are under investigation."

This certificate was issued at the request of the 4th Defendant. The Plaintiff felt it necessary to seek clarification from the Paraguayan Government himself and he made a trip to Paraguay. He left Hong Kong on June 19, 1996, only a few weeks before the trial of this action and managed to obtain a certificate from the Chief of Cabinet, the Ministry of Foreign Affairs of Paraguay, in connection with the certificate issued on May 24, 1996, which stated that, inter alia,

"in the records of the National Foreign Ministry there are no documents referring to irregularities which may have been attributed to [the Plaintiff], nor are there any investigations now being carried out on that regard, for which reason the reference made in the certificate dated 24 of May of the current year is not relative to his person."

18. From the Plaintiff's point of view, the article came at a bad time. His own firm was set up less than a year prior to the publication of the article. At a time when he was actively developing his practice, adverse publicity must be damaging. The Plaintiff testified that the action worried him greatly. For almost two years much of his time and attention had to be set aside to handle this litigation instead of handling matters for his clients or developing his practice. The Plaintiff said that he felt very embarrassed when meeting people because he could never tell whether they had read the article and have any views about it.

19. There is no doubt that the Plaintiff regarded his Honorary Vice-Consulship as an honour. Both the Queen's commission and the letters patent had been prominently displayed in his office and attracted much comment from his clients. It is the Plaintiff's belief that his credibility to his clients was thereby enhanced and to have his termination portrayed as a sacking or dismissal was ignominious.

20. The Plaintiff holds other honorary office: he is legal adviser to the Japanese school, the supervisor of a Japanese kindergarten and Chairman of the Board of Advisers of an educational institute whose members are prominent people with an interest in education.

Is the article defamatory?

21. Whether the words complained of are defamatory is a question of construction and not of evidence. The first task that faces the court is to determine the natural and ordinary meaning of the words used. As stated by Lord Devlin in Rubber Improvement Limited v. Daily Telegraph Limited [1964] AC 234 at 277, when construing the words, the method of approach to be adopted must take into account the fact that "the layman's capacity for implication is much greater than the lawyer's".

22. A helpful statement of "the natural and ordinary meaning" of words is to be found in Duncan and Neill on Defamation, 2nd Ed. at paras.4.04-4.05:

"The natural and ordinary meaning of words is the meaning in which the words would be reasonably understood by ordinary people using their general knowledge and commonsense. This meaning is determined in accordance with the following principles-

23. .....

24. From the speeches of Lords Reid and Devlin in the Rubber Improvement case, the following guidelines can be extracted:

See per Neill L.J. in Hartt v. Newspaper Publishing plc, Court of Appeal, (unreported) The Times, November 9, 1989.

25. With these principles in mind, I set out to determine the natural and ordinary meaning of the article.

26. The Defendants admit that the words complained of meant or were understood to mean that the Plaintiff was dismissed or sacked by the Paraguayan Government. At the forefront of their submissions is the plea that these words do not bear any defamatory meaning and that it is true to say that the Plaintiff had been "dismissed or sacked". Mr Huggins Q.C., for the Defendants, submitted that these words do not carry any connotation of misconduct or any grounds for suspicion of misconduct on the part of the Plaintiff. He referred to the definition of the word "dismissed" in the Oxford English Dictionary, namely:

"To send away or remove from office, employment or position; to discharge, discard, expel."

and to the definition of "sacked" in the Supplement as follows:

"That has been 'given the sack'; dismissed, discharged (from employment or office)."

27. But the meaning of the words conveyed cannot be ascertained merely by reference to their dictionary meanings, divorced from context. As they do not exist in a vacuum, they must be construed in the context in which they appear. In this connection, it is not just the paragraphs concerning the Plaintiff that are to be read as the Defendants were inviting the court to do. Those words have to be construed in the context of the article as a whole.

28. It is the Defendants' submission that the words mean no more than that the Paraguayan Government unilaterally relieved the Plaintiff of his duties and that his status and functions as Honorary Vice-Consul were terminated without notice, without prior consultation and without reference to his wishes. It was argued that because the Paraguayan Government was entitled so to do, i.e. to unilaterally terminate his Honorary Vice-Consulship at its own whim and pleasure, the Defendants were entitled to use the words "dismissed" and "sacked" and that such words were not defamatory. In the master and servant context, (which Mr Huggins Q.C. was at pains to point out was not the case here,) the word "dismissal" is usually associated with summary dismissal, i.e. dismissal for cause suggesting some kind of misconduct on the part of the person dismissed. Where the words are used in the context of the dismissal of a vice-consular official by a sovereign government, the Defendants submit that they do not denote anything other than a unilateral termination of services or status and in the context of the article, are simply not capable in their natural and ordinary meaning of being defamatory as alleged by the Plaintiff.

29. The ordinary reader is unlikely to be aware of the legal niceties that exist between terminations in a master/servant context and by a sovereign government. It would only be natural for the ordinary reasonable reader to associate it with a master/servant situation, that being overwhelmingly the more usual context for those words to be used. In any event, the context in which those words were published has to be considered to see if they carried an imputation of disreputable conduct. As Mr Yu Q.C. submitted, the underlying theme of the article was undoubtedly about a passport scam: the first and last paragraphs refer to such a scam. It was reported that the Plaintiff was asked questions relating to the scam. Throughout the article, the words "sacked", "fired" and "dismissed" were used interchangeably. Even if the dictionary meanings of "dismissed" and "sacked" are as neutral as Mr Huggins Q.C. makes out (which is questionable), in the context in which the words were used, they were charged and emotive and wholly inappropriate if all they were meant to do was to report an innocuous and neutral event rather than to sensationalize it.

30. The article reported three "dismissals" or "sackings". The first sacking related to an alleged passport scandal or scam. The Plaintiff's dismissal was not portrayed in a different and self-contained context. He was asked by the 5th Defendant about the scam allegations and his response was reported. I have no doubt that the ordinary reader would come away with the impression that the three sackings arose from conduct that was, at the very least, questionable. I do not accept the Defendants' submission that all the article did as regards the Plaintiff was to report and notify readers that the office of the Plaintiff as Honorary Vice-Consul had been terminated without notice or reason which is the prerogative of the Government of Paraguay. Such an innocuous news item would not have merited space on the front page. Nor would it have been necessary for the author(s) of the article to depart from the text of the Presidential Decree in which the neutral word "terminated" was used.

31. The thread running through the article is an alleged passport scandal or scam to which the sackings were related. The desire of large numbers of Hong Kong residents to acquire foreign passports in the last decade or so is well known and unique at this particular juncture of Hong Kong's history. Indeed certain unscrupulous individuals have exploited this keen desire and profited from the situation, a fact that is common knowledge, at least among those who live in Hong Kong. Those words mean much more than mere administrative and procedural irregularities in the processing and issuance of passports: they connote conduct that, on any view, is discreditable to those involved in it.

32. Mr Yu Q.C. submitted that the reasonable reader would conclude either that the Plaintiff was sacked because he was involved in a passport scandal or at least that there were reasonable grounds to suspect that he was. The Defendants disagree. They maintain that there is simply no basis for a court to reach the conclusion that the Plaintiff was implicated in a passport scandal because all the article did was to report that an investigation was being launched into an alleged passport scandal. The Defendants submit that there is all the difference in the world between saying someone is guilty of an offence and that he has behaved in a suspicious manner. Moreover, as the Plaintiff has deliberately chosen to plead his case as one of involvement as distinct from being suspected of involvement, the latter meaning is not open to the Plaintiff unless he were to amend his pleadings which he has not sought to do and such an amendment could not have been made except on terms that he paid costs up to and including the day of the amendment. For this proposition, the Defendants relied on Jacobs v. Schmaltz (1890) LT 121 and the commentary in the Supreme Court Practice at 20/5-8/11.

33. The dichotomy between suspicion and guilt was addressed in Lord Devlin's speech in Lewis v. Daily Telegraph Ltd. [1964] AC 234 at 285:

The first of the passages cited above was applied by Sir George Baker in Hayward v. Thompson [1982] 1 QB 47 at 65.

34. In my judgment, the broad impression conveyed to the reasonable reader is that there was a passport scam and that the Plaintiff had something to do with it. The use of words such as "alleged" and "allegations" may nonetheless imply guilt.

35. The article talked about the launching of an investigation, the sacking of the diplomat to clear the way for a full-scale probe and the removal of diplomatic immunity. It then referred to another scandal in Antigua involving its honorary consul regarding the alleged selling of visas to Chinese people for US$20,000. This was followed by a report of the dismissal of the Plaintiff who said he had no idea of the scam allegations. Yet he, like the other two diplomats, was sacked. At the very least, the article conveyed the impression that the suspicion was well-founded. Effectively, the same treatment was meted out to the Plaintiff as to the other two diplomats mentioned in the article who were directly involved. This was followed by a paragraph that purported to state the Plaintiff's explanation for his termination. But it was cast as a "claim", insinuating that there must be reservations about that claim or that it is somehow questionable.

36. Although Mr Huggins Q.C. stressed that the dismissal of a diplomat is an exercise of prerogative by a sovereign government and no reasons need be given for the exercise of the power, the concluding paragraphs of the article conveyed the clear message that there were reasons for the sackings but that the Foreign Office and the Protocol Division "had failed to give details". So we have a situation where it is said reasons exist but were not disclosed. It would make the reader curious to discover the underlying reasons. Without more ado, the reader is provided with a possible reason, namely, the report in Noticias about allegations made by the British authorities over the issue of Paraguayan passports. Although the reference was to "a senior officer", no differentiation had been made between the two sackings (i.e. of the two Chans) and the reader was led to suppose that there were reasons for both.

37. The following passage from Lord Devlin's speech in Lewis v. Daily Telegraph, supra (at p.284) is particularly apt in the circumstances:

"When an implication is made in a general way, the ordinary man is not likely to distinguish between hints and allegations, suspicion and guilt. It is the broad effect that counts and it is no use submitting to a judge that he ought to dissect a statement before he submits it to the jury. But if on the other hand the distinction clearly emerges from the words used it cannot be ignored."

Given the common theme of the article, in my judgment, the ordinary reader would suppose that the reasons for the two sackings would be related. This would make the Plaintiff's explanation that his termination was normal procedure false.

38. As to the amendment point and whether involvement encompassed suspicion of involvement, Mr Yu Q.C. distinguished Jacobs v. Schmaltz on the ground that in that case the pleading without the proposed amendment would not have disclosed a cause of action. That is very different from the case here. Moreover, he submitted that the rule of pleading is clear: the greater includes the lesser but not vice versa. See Re Vandervell's Trust (No.2) [1974] 1 Ch 269 at 321G - 322A; and Arab Bank Ltd. v. Ross [1952] 2 QB 216. I accept Mr Yu's submissions and I hold that a court is not precluded from finding that the reasonable reader would conclude that the Plaintiff was sacked because there were reasonable grounds to suspect that he was involved in a passport scandal or scam.

39. As the article was reporting the allegations of a passport scam, it was repeating the allegation or spreading a rumour, Mr Yu Q.C. submitted that the Defendants can only escape liability by justifying the underlying sting. In Lewis v. Daily Telegraph, Lord Greene said (at p.260):

"Repeating somebody else's libellous statement is just as bad as making the statement directly...."

40. As explained by Simon Brown L.J. in the recent English Court of Appeal in Stern v. Associated Newspapers, May 21, 1996 (unreported) at p.22:

"The repetition rule ... is a rule of law specifically designed to prevent a jury from deciding that a particular class of publication - a publication which conveys rumour, hearsay, allegation, repetition, call it what one will - is true or alternatively bears a lesser defamatory meaning than would attach to the original allegation itself."

Accordingly, in cases where the repetition rule applies, assertions of allegations are to be read as assertions of fact. If, as I have found, the impression conveyed is the implication of the Plaintiff in a passport scam, it is not a defence that the Defendants were merely repeating someone else's libellous statement.

41. Reading the article as a whole, the ordinary reader could not escape the conclusion that the Plaintiff was tarred with the same brush as S.S. Chan and Dr Bill Cheung or as Mr Yu Q.C. said, the Plaintiff was put in a rogues' gallery.

42. In conclusion, I find that the Plaintiff's complaint that the article was libellous of him as set out in para.5 of the Statement of Claim is made out. The article as a whole conveyed to the ordinary reasonable reader:

Justification

43. The defence contains a plea of justification but I have some difficulty in grasping "the very limited nature of the secondary plea of justification" put forward. The Defendants submit that if the court were to hold that the words "dismissed" and "sacked" are defamatory, then the Defendants' plead that the words "are true" in the sense they ascribe to the words. But with the greatest respect, I do not see that their subjective views as to the meaning of those words can constitute a defence of justification in law. A defendant who relies on justification has to identify the defamatory meaning which he is prepared to justify. See Lucas-Box v. News Group Newspapers Ltd. [1986] 1 WLR 147. The Defendants' so-called limited plea of justification cannot operate as a defence.

Damages

(a) General principles

44. The objective is "to restore the plaintiff, as far as money can do so, to the position he would have been in if the tort had not been committed." See Duncan & Neill on Defamation, op.cit. para.18.04. Where there has been no retraction or apology, an order for damages is the only solatium available to the Plaintiff.

45. In the recent Court of Appeal decision in Cheung Ng Sheong Steven v. Eastweek Publisher Ltd. [1995] 3 HKC 601, it had to consider the question of damages for libel. It accepted (at p.613D-F) the submission that:

"... damages for libel must provide for several disparate elements, not only damage to esteem and reputation. They also 'must be sufficient to publicly and demonstratively and absolutely vindicate the Plaintiff and to compensate for seriously injured feelings (Yu Kwong Chu v. Consolidated Newspapers Ltd. (A258/86, unreported) at p.30' not only caused by the original libel but all the subsequent aggravation thereof down to the verdict, which would restore the Plaintiff's 'pride and confidence' (McCarey v. Associated Newspapers Ltd. (No.2) [1964] 3 All ER 947 at 958). They must enable the Plaintiff to convince a bystander the baselessness of the charge if 'the libel driven underground, emerges from its lurking place at some future date' (Cassell v. Broome [1972] 1 All ER 801)."

46. Submissions were made in that case to the effect that in the assessment of damages for defamation, regard should be had to personal injury awards. Although the disparity between enormous awards made for relatively inconsequential and ephemeral defamation and the modest awards for the most damaging personal injuries that are moreover permanent can only be viewed as scandalous, the House of Lords' decision in Cassell v. Broome, supra, is binding and the use of personal injury awards has been held to be impermissible. See also Rantzen v. Mirror Group Newspapers Ltd. [1994] QB 670. In Cheung Ng Sheong, Nazareth V.-P. said at p.612C-F:

"The nature of the injury in libel is very different to that in personal injury so are the consequence and the nature of what is sought to be made or provided for by relevant damages. Unlike the mixture of inextricable considerations, the punitive element, the conduct and attitude of a defendant, the vindication of the plaintiff to the public both at the time and in case the libel driven underground should emerge from its lurking place at some future date, and adequate solatium that all weigh in damages for libel, those for personal injury are relatively few and straightforward. Plainly the dangers of using awards for one to assess those for the other would be great, particularly for juries. ... There is no escaping the conclusion reached by the Court of Appeal in Rantzen at 694D that 'there is no satisfactory way in which conventional awards in actions for damages for personal injuries can be used to provide guidance for an award in an action for defamation.'"

47. Mr Huggins Q.C. submitted that as a matter of principle, logic, common sense (and even good taste) awards in defamation cases ought not to be in excess of those for physical injury, personal suffering and disability. This, he argued, did not amount to a submission that the court should approach its assessment of an award of damages for defamation by using personal injury awards. It appears to me that such a distinction verges on the casuistic: if personal injury awards are to act as some cap or ceiling for a particular case, they would be providing guidance which is not permissible. I am therefore unable to accede to Mr Huggins' submission.

(b) Relevant considerations

48. In assessing damages in the present case the relevant considerations include the following: the seriousness of the libel having regard to the Plaintiff's position and standing; the prominence of the article and the circumstances of its publication; conduct of the Defendants including conduct subsequent to the Plaintiff's complaint; and the absence of any retraction or apology.

49. The libel is a serious one since it impugns the reputation of a professional man. The article suggested that his termination as Honorary Vice-Consul was because of misconduct or suspected misconduct which associated him with a passport scam or scandal. To the Hong Kong reader, this connotes discreditable conduct involving abuse of power or position for gain and not merely administrative and procedural irregularities in the granting and processing of applications. It is very damaging indeed to any professional man, much less a lawyer, to have his integrity and honesty impugned and reputation sullied. The importance of a lawyer's reputation appears from the judgment of Cory J. in Morris Manning and Church of Scientology of Toronto v. S. Casey Hill, Supreme Court of Canada, July 20, 1995 (unreported) at p.46:

"The reputation of a lawyer is of paramount importance to clients, to other members of the profession and to the judiciary. A lawyer's practice if founded and maintained upon the basis of a good reputation for professional integrity and trustworthiness. It is the cornerstone of a lawyer's professional life. Even if endowed with outstanding talent and indefatigable diligence, a lawyer cannot survive without a good reputation ..."

50. In addition, the article was put in a place of great prominence: it featured on the front page of a well-established English language newspaper with an average monthly circulation at the time of publication of over 52,000 copies.

51. Then there is the conduct of the Defendants. The Plaintiff's evidence of the conversation he had with the 4th Defendant was not challenged. As the Defendants have chosen not to give evidence the Plaintiff's account is accepted as true. The 4th Defendant himself admitted that he did not know how the paragraphs concerning the Plaintiff came into written: he knew that the Plaintiff had nothing to do with the story. He could not explain how the word "sacking" came to be used when what had been confirmed was the Plaintiff's termination. Clearly something is seriously amiss when the diplomatic editor responsible for the article can proffer no explanation. In the circumstances, the Defendants' conduct in publishing the article can only be described as irresponsible, reckless and grossly negligent.

52. The injury to the Plaintiff was exacerbated by the Defendants' refusal to retract or apologize. Further, additional distress would have been caused by the plea of justification and fair comment having regard to the fact that the 4th Defendant had told the Plaintiff that he knew the Plaintiff had nothing to do with the scandal, and by the extensive plea in para.6(7) of the Amended Defence since that must be intended to suggest that the Plaintiff's "dismissal" or "sacking" was anything but normal procedure.

53. When in March 1995, the Defendants made known to the Plaintiff that they were not alleging any misconduct on his part, any alleviation of personal distress brought about by the publication of the offending article was limited in scope: as it was contained in a pleading, it was never made public.

54. There is also the fact that within weeks of the start of the hearing, the 4th Defendant went to Paraguay for the purpose of obtaining clarification of the circumstances of the termination of the two Chans. Whilst the Defendants vehemently objected to the admissibility of the certificates issued by the Cabinet Office of Ministry of Foreign Affairs of Paraguay, they had earlier sought to put in the May certificate by a hearsay notice. Even assuming that the certificates are not admissible in evidence, the fact and purpose of the journey that was made constitute conduct subsequent to publication to which the court is entitled to have regard. The only reasonable inference is that up to the eleventh hour and despite the 4th Defendant's knowledge that the Plaintiff had nothing to do with the passport scandal and the Defendants' acknowledgment that no misconduct was being alleged against the Plaintiff, the Defendants appeared to go to extraordinary lengths to seek to show otherwise. All of this must have added considerably to the Plaintiff's anxiety and distress.

(c) Double recovery

55. As two similar libels were published not only in the Hongkong Standard but also in the Sing Tao Daily on the same day, there is the danger of double recovery if some part of the damages is the joint result of the two libels. The principles to be applied are set in the speech of Lord Greene in Lewis v. Daily Telegraph Ltd., supra at p.267:

"Here there were similar libels published in two national newspapers on the same day and each has to be dealt with by a different jury. If each jury were to award damages without regard to the fact that the plaintiffs are also entitled to damages against the other newspaper, the aggregate of the damages in the two actions would almost certainly be too large. Section 12 of the Defamation Act, 1952, is intended to deal with that. In effect it requires that each jury shall be told about the other action, but the question is what each jury shall be told. I do not think it is sufficient merely to tell each jury to make such allowance as they may think fit. They ought, in my view, to be directed that in considering the evidence submitted to them they should consider how far the damage suffered by the plaintiffs can reasonably be attributed solely to the libel with which they are concerned and how far it ought to be regarded as the joint result of the two libels. If they think that some part of the damage is the joint result of the two libels they should bear in mind that the plaintiffs ought not to be compensated twice for the same loss. They can only deal with this matter on very broad lines and they must take it that the other jury will be given a similar direction. They must do the best they can to ensure that the sum which they award will fully compensate the plaintiffs for the damage caused by the libel with which they are concerned, but will not take into account that part of the total damage suffered by the plaintiffs which ought to enter into the other jury's assessment."

56. The difficulty with applying those principles in the present case is not only the fact that the English newspaper and the Chinese newspaper cater for different readership, where the degree of overlapping on damages is likely to be no more than marginal, but also the fact that the libels are different in seriousness. Nevertheless, some adjustment would be justified.

(d) Precedents

57. I am indebted to leading and junior counsel on both sides for their comprehensive review of libel award cases from 1952 onwards. The older cases offer little assistance now since awarded damages need to keep pace with the rate of inflation. See Melvin Wong v. Jockey Daily News HCA No.2469 of 1984. As the circumstances of each libel are likely to differ and the factors to be taken into account depend on the facts of each individual case, it is difficult to extrapolate from previous awards unless there are significant similarities. Of the many cases to which counsel on both sides referred, the following including two recent cases should be mentioned.

58. The first is Choy Bing Wing v. Ng Yat Chi [1992] 1 HKC 508. Choy was a consulting civil structural engineer who had established a business relationship with a Chinese enterprise. The defendant wrote a letter to the directors of the enterprise which was copied to various ministries in Beijing to the effect that the Plaintiff was an irregular architect, corrupt and guilty of unprofessional conduct. Exemplary damages were awarded because of various aggravating features including the fact that (i) the allegation of corruption was wholly unsubstantiated, (ii) the allegations were communicated to a large number of people and (iii) the conduct of the defendant towards the plaintiff in that case could only be described as outrageous and despicable. The plaintiff was awarded damages including the exemplary damages of $2.5 million. Mr Yu Q.C. submitted that as the case was decided in 1992, adjusted for inflation, the current equivalent would be the order of $3.4 million.

59. Cheung Ng Sheong Steven v. Eastweek Publisher Ltd., supra, was a jury trial concerning a libel of a university professor. The defamation concerned allegations that he failed to give lectures to students and refused to take a group photograph with the students. The jury awarded damages of $2.4 million which the Court of Appeal found excessive for what it described (at p.612H-I) as a libel "of merely marginal seriousness". It was corrected within two weeks and was unlikely to have had any effect upon the Plaintiff high professional's standing and reputation. In that case, it considered that a minor fraction of $2.4 million would be adequate to compensate the statements which were of a petty nature which of course is not the case here. The Court of Appeal's decision is relevant for its statement of the principles to be applied in assessing damages which I have already set out above.

60. Finally, I should mention Kan Chung Nin v. Li Kwong Ming [1986] HKLD 949. The publication was a circular sent to members of a residents' association numbering 300 where there was an attack was on the personal and professional integrity of the plaintiff who was chairman of the executive committee of the association and a solicitor. The award was $65,000. It is to be noted that not only is this case is a decade old, the libel was published in a limited geographical area to a limited group of people. It will be seen that the facts there are a far cry from those of the present case.

(e) Quantum

61. Leading counsel for the Plaintiff suggested that having regard to all the circumstances the appropriate award is $2.5 million. This is a serious libel against a professional man. The Plaintiff has been under the shadow of this libel for almost two years. He has had to devote a significant part of his time on the litigation rather than developing his own practice which barely had the chance to get going before this unfortunate article was published. There has been no retraction or apology. Rather, efforts were made to the end to prove the Plaintiff wrong despite the absence of reasonable grounds for so doing. The publication could not have been more prominent and it was published by a well-established newspaper with a large circulation. Although the aggravating features are perhaps less serious and extensive than Choy Bing Wing's case, there are a number of similarities. The Plaintiff is now completely vindicated.

62. Having regard to the relevant principles set out above and the need to restore the Plaintiff's "pride and confidence", "to convince a bystander the baselessness of the charge", and after making an adjustment to cater for double recovery, I reach the conclusion that a proper award of damages in this case is $700,000 and there will accordingly be a judgment for the Plaintiff in this sum. I also grant the injunction sought. There will be an order for costs in favour of the Plaintiff.