ORIENTAL DAILY PUBLISHER LTD. v. TIN TIN PUBLICATION DEVELOPMENT LTD. and Others

1996 No. A2851

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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J U D G M E N T

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1. The Plaintiff is the proprietor, publisher and printer of Oriental Daily News a daily Chinese language newspaper for sale and distribution in Hong Kong.

2. The 1st Defendant is the proprietor of Tin Tin Daily News, another daily Chinese language newspaper for sale and distribution in Hong Kong.

3. The 2nd Defendant was at the material time the chief editor of the 1st Defendant and is no longer in the employ of the 1st Defendant at the trial.

4. The 3rd Defendant now deceased was the author of the article published in the 25th December 1995 issue of the Tin Tin Daily News. This article and its translation are set out in Annexure I and IA.

5. The title of the said article was 籌委名單與枱底交易 - "List of Members of the Preparatory Committee and under-the-table deal".

6. The gist of the article is that the setting up of the Preparatory Committee of the Hong Kong Special Administrative Region was discussed at the 17th Meeting of the Standing Committee of the 8th National People's Congress. The list would be published on the 28th December 1995. Due to the principle of confidentiality it was inexpedient to publicise the list. However the day after the commencement of the Meeting of the Standing Committee, Oriental Daily had published a detailed draft list of the Preparatory Committee. The author was of the view that it was impossible for the reporter to compile the list by listening. It was quite apparent that it could only be derived from a photocopy of the agenda. The author thought the accuracy of that proposed list should be over 90% correct and there would not be too many changes from that list. In view of the fact that the Chinese side had always maintained the confidentiality of the minutes of top level meetings, he queried how this information could be leaked out. He then asked a rhetorical question "Could there not exist some political deal which could not be revealed to others?"

7. The author then went on to write about Oriental Daily having started or triggered off a cut-throat newspaper price war with a view to monopolise the newspaper industry and the Chinese side was only too pleased to see that happened because if there are fewer newspapers in Hong Kong it would be easier to control the views of the media. The author hoped that the price war would end soon. He concluded by saying that if there were such under-table-deal with the aim to assist Oriental Daily to knock out other newspapers the situation would be horrifying.

8. Although in the article it did not specifically name Oriental Daily it is quite obvious to the readers that it referred to Oriental Daily and the 1st Defendant admitted that the article referred to the Oriental Daily in its Defence.

9. The heading or title of that article mentioned about an "under-the-table deal" without qualification. This term is very derogatory. From reading of the first 3 paragraphs of the article which ended with the rhetorical question it gives the reader an impression that there was such an under-the-table deal and Oriental Daily had surreptitiously entered into a political deal with the Government of the People's Republic of China. It was a very sensitive issue at that time (18 months before the hand over of the Territory to China).

10. To say the least it had imputed unfounded allegation of improper acts on the part of Oriental Daily and had brought the newspaper into public scandal, odium and contempt. Although there is nothing wrong with the price-cutting war as it is just an economic concept or tactics in a capitalistic society to drive marginal firms out of business with a view to monopolise the industry, the author had wrongfully imputed a sinister meaning to suggest it was in collusion with the Chinese Government. To say that the motive was political was another unfounded allegation which brought Oriental Daily further into public scandal, odium and contempt and had stigmatised Oriental Daily.

11. Mr. Chan Chung Kwan for the Plaintiff said that the list was compiled after he made an educated assessment. In fact Mr. Ip Kai Wing on behalf of the 1st Defendant agreed that there was no evidence to support such suggestions.

12. In Jones v. Skelton [1963] 1 WLR 1362 the Privy Council has made clear that simply by writing defamatory material and then posing the same as a question does not absolve one from liability in defamation. At p.1372 the Privy Council held:

"The question mark might convey to the reasonable reader the thought and the meaning that there had been some impropriety. The reader, a jury might conclude, was invited to adopt a suspicious approach and so to be guided to the real explanation at what had taken place - and explanation which the writer of the letter did not care or did not dare to express in direct terms."

13. For reasons above in my judgment the article was libellous.

DAMAGES

14. Libel is more serious than oral slander as the newspaper is circulated widely and many more people will read about it than oral slander which is known only to a few persons.

15. At para 145 of Gatley 8th ed. The learned author cited the passage by Best CJ in De Crespigny v. Wellesley [1829] 5 Bing at 402 which is as follows:-

"publication in a newspaper may circulate the calumny through every region of the globe. The effect of this is very different from that of the repetition of oral slander. In the latter case, what has been said is known only to a few persons, and if the statement be untrue, the imputation case upon anyone may be got rid of; the report is not heard beyond the circle in which all the parties are known, and the veracity of the accuser and the previous character of the accused will be properly estimated. But if the report is to be spread over the world by means of the Press, the malignant falsehoods of the vilest of mankind, which would not receive the least credit where the author is known, would make an impression which it would require much time and trouble to erase, and which might be difficult, if not impossible, ever completely to remove."

16. In assessing damages I have to consider the nature of the libel, the mode and extent of the publication and the conduct of the Defendants from the time the libel was published down to the trial.

NATURE OF THE LIBEL

17. The libel suggested a collusion between the Government of the People's Republic of China and the Plaintiff. There was not a shred of evidence to suggest there was such under-the-table deal. It was published at a time when people in Hong Kong and in fact the world were very sensitive on such topic. It is a distortion of true facts and is intended to disparage the Plaintiff.

18. The Plaintiff and 1st Defendant published newspapers with similar formats. In ways they are competitive. The libel directly targeted the Plaintiff.

THE MODE AND EXTENT OF THE PUBLICATION

19. The Defendant has produced the whole issue of the newspaper as Exhibit. The whole issue was separated and folded into 3 bundles. The offending article appeared in the inside page of the miscellaneous sector in a rather inconspicuous space. I do not think too many readers would be interested in the miscellaneous sector. The circulation of Tin Tin on the 25th December 1995 was only 174903 copies. The circulation of the Plaintiff around that time was about 700,000 to 800,000 copies per day. Mr. Ma Kai Lun Deputy Chief Editor of the Plaintiff at that time said that the Plaintiff had not received any complaint after the offending article was published. The sale of the newspaper had not been affected by the offending article.

20. From the facts above I am of the view that the Plaintiff had not been significantly affected by the publication of this offending article.

CONDUCT OF THE 1ST DEFENDANT

21. Letter before action was sent to the Defendants but they have refused to withdraw the article nor offered apology. As a result the Plaintiff was driven to start this action and prove its case.

22. The conduct of the Defendants is culpable as they did not admit the obvious and refused to apologise. Even though the damage caused to the Plaintiff was minimal it was a rather serious article attacking the integrity of the Plaintiff at the time when people of Hong Kong were politically sensitive about such topics.

23. Taking all factors into consideration I assess the damages to be $150,000.00.

24. In the circumstances there be judgment for the Plaintiff against both the 1st and 2nd Defendants jointly and severally in the sum of $150,000.00. An injunction to restrain the 1st and 2nd Defendants and each of them whether by themselves or their servants or agents or otherwise howsoever from publishing the article or any similar words defamatory of the Plaintiff. Costs.

(Wesley Wong)

Deputy Judge of the High Court