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

HCA 5612/1995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 5612 OF 1995

____________

____________

_______________

J U D G M E N T

_______________

1. This is an action for defamation. The 1st Plaintiff is Oriental Daily Publisher Limited (東方日報督印有限公司), a company which is registered under the Registration of Local Newspapers Ordinance Cap.268 as the proprietor, publisher and printer of the Oriental Daily News (東方日報), a Chinese language newspaper widely circulating in Hong Kong.

2. The 1st Plaintiff is a subsidiary of Oriental Daily News Limited (東方日報有限公司) which is in turn a subsidiary of the 2nd Plaintiff Oriental Press Group Limited (東方報業集團有限公司), a public company listed on the Stock Exchange of Hong Kong.

3. Amongst the newspapers and periodicals published by or by other subsidiaries of the 2nd Plaintiff is the Eastern Express, an English language newspaper which was being published in 1995 but which has since ceased publication.

4. The Defendants are all associated with Ming Pao, another Chinese language newspaper in wide circulation in Hong Kong. The 1st Defendant is the proprietor, the 2nd Defendant the publisher, the 3rd Defendant is the editor and the 4th Defendant is the printer of Ming Pao.

5. The present action concerns an article written by Dr. Lui Tai Lok, a social commentator, in his column 城市草稿 (City Script) in the features section of Ming Pao on 19th February 1995. This article was entitled 答讀者 (Reply to Readers) and followed a previous article entitled 媒介戰 (Media War) which had been published in the same section of Ming Pao 5 days earlier on 14th February 1995.

Background

6. Before I deal with these articles and the issues in this action, it would be helpful to set out briefly the background events, some of which have been referred to in the articles.

7. In 1995, there were two main local television stations, Hong Kong Television Broadcasts Ltd. ("TVB") and Asia Television ("ATV").

8. As with most newspapers, the Oriental Daily News carried daily listings of the programmes to be shown on television. It would appear that from (at the latest) December 1994 to 24th January 1995, there was a routine format for these listings on the entertainment page of the Oriental Daily News.

9. The routine format was that TVB's Chinese channel programme schedule would precede ATV's Chinese channel programme schedule, and TVB's English channel program schedule would precede ATV's English channel programme schedule. The size of the print was identical for both stations. The logos of both stations were also printed next to the names of the stations.

10. On the evening of 23rd January 1995, a programme called the Pearl Report was broadcast on the English channel of TVB. It contained allegations relating to the Eastern Express.

11. TVB has since admitted negligence in respect of, and retracted part of the contents of, the Pearl Report programme, and I shall not refer to any parts of the programme here, save to say that it contained various conjectures about the Oriental Press Group's motive for the establishment of the Eastern Express. There were no allegations or conjectures concerning the Oriental Daily News.

12. One and a half days after the Pearl Report was broadcast on TVB, on 25th January 1995, a change appeared in the television programme listings in the Oriental Daily News. The ATV schedules preceded those of TVB. The size of the print for the TVB programme listings was noticeably smaller than that for the ATV listings. TVB's logo was omitted whilst that of ATV remained.

13. This changed format was maintained in the Oriental Daily News for 26th and 27th January 1995. On 28th January 1995, the size of the print for the TVB listings was restored to that for the ATV listings, but the ATV programme schedules still preceded those of TVB, and TVB's logo was still omitted. Further there was during that time a large number of articles in the Oriental Daily News (some in strongly sarcastic terms) publicising TVB's declining audience ratings.

14. On 16th February 1995, a public notice was issued by TVB retracting parts of the offending Pearl Report. Two days later, on 18th February 1995, the logo for ATV also disappeared from the Oriental Daily News television programme listings, although that station's listings still preceded those for TVB.

The Article

15. It was at about this time that the article the subject matter of this action was published in Ming Pao. As stated above, "Media War" appeared on 14th February 1995 and "Reply to Readers" appeared on 19th February 1995. It is common ground in this action that both articles should be read by the Court as the latter article incorporates references to the earlier article, although the earlier article is not the subject matter of complaint.

16. Both articles are included in their original format as appendices to this Judgment. The first sentence in the earlier article was "東方報業向無綫電視展開攻勢，發動攻勢已有一段時間", i.e. that 東方報業 (Oriental Press) has launched an assault against TVB for a period of time. The article went on to state that there were diverse views as to whether a news medium should commence a debate on public opinion when that medium itself was in a position of conflict of interests. The writer's point was that for him, the symbolic meaning was in a newspaper's ability to declare war on a television station, and the fact that it showed that TVB no longer commanded the loyalty amongst viewers that it used to enjoy.

17. The later article refers to two letters received from two readers, Mr/Ms Wong and Mr/Ms Lau, who had apparently written to Dr. Lui in response to his earlier article. This later article set out these readers' opinions in the first paragraph, with which the writer expressed his agreement. The gist of the article was that a newspaper should not permit itself to be a tool to be used for the benefit of group interests, and that it was difficult to be fair and balanced. It cited as an extreme example the Oriental Daily News' reduction in the size of the print for TVB's programmes and the continuous reports in the Oriental Daily News of TVB's declining audience ratings. The writer also stated that other media reports on the matter were also not objective nor neutral.

18. The Plaintiffs took objection to the later article and issued proceedings. It is the Plaintiffs' case that (a) the Oriental Daily News had been defamed, and that depending on the defamatory imputations found by the court, there was a cause of action by either the proprietor, or the publisher, of the Oriental Daily News or both; and (b) quite apart from the alleged defamation of the Oriental Daily News, the 2nd Plaintiff had a separate cause of action in that it had been expressly referred to in the article in a defamatory way.

Issues

19. It would appear from the pleadings and the submission in court that the following issues arise:-

(1) Did the Oriental Daily News enjoy a large circulation amongst Chinese readers in Hong Kong?

(2) Who was the proprietor and who was the publisher of the Oriental Daily News?

(3) Would a reasonable reader of the article be likely to understand that the words in the article referred to (a) the 1st Plaintiff and/or (b) the 2nd Plaintiff?

(4) What was the meaning of the words? Were they defamatory?

(5) If the words were defamatory (a) were they comments such that the Defendants have a defence of fair comment? If the Defendants had a defence of fair comment, was that defence rebutted by the Plaintiffs by proof of the Defendants' actual malice? Or (b) were they statements of fact, and did the Defendants justify these statements of fact?

(6) If neither the defence of fair comment or of justification succeeds, what is the proper quantum of damages?

(1) Circulation

20. The pleading that the Oriental Daily News enjoyed a large circulation amongst Chinese readers in Hong Kong was not admitted in the Defence. However, this was never a live issue, and it is clear from the transcript of the evidence in HCMP 407/98 on which both parties relied, that the Oriental Daily News did enjoy a wide circulation, and I so find.

(2) Identities of proprietor and publisher of the Oriental Daily News

21. This issue is relevant if there were any words in the article which were defamatory of the Oriental Daily News. Depending on the defamatory imputation, that may constitute defamation of the proprietor of the Oriental Daily News, or of its publisher, or of both.

Roles of proprietor and of publisher

22. Before I deal with the evidence pertaining to this particular issue, it is necessary to consider the different roles of a proprietor and of a publisher of a newspaper. As held by the court in MP 407/98, a proprietor is a person who owns the business of a newspaper. A publisher is a person who operates or runs the business of a newspaper.

23. Naturally, a person who owns a business would be concerned to see that it is properly operated, and in this respect it may be common for a proprietor of a newspaper to also be its publisher. However, I accept the Plaintiffs' submission that the ownership and the management of a newspaper business may in fact be separated.

24. In a case where the proprietor and the publisher are different persons, then if it is considered that the newspaper has been defamed, the question whether the proprietor, or the publisher, should sue would depend on the nature of the imputations (Australian Newspaper Co Ltd v Bennett (P.C.) [1894] AC 284, 288).

25. Take the example of a statement directed against the quality of the writing in a newspaper. In such a case, if anyone can sue, it would be the editor. Or take the case of a statement directed against circulation or budgets or other management concerns, then the proper plaintiff would be the person who manages the business, i.e. the publisher. If the statement refers to a newspaper's actions as part of an agenda serving the interests of its proprietor, then the statement may be directed against the editor (an aspect which does not concern this court) and the proprietor for influencing the newspaper to adopt such a course of action, it not being within the usual or proper scope of activities of a news medium to advance the interests of any particular entity.

Pleadings

26. Who then was the proprietor and the publisher of the Oriental Daily News? The Amended Statement of Claim pleads that the 1st Plaintiff is the registered proprietor and publisher of the Oriental Daily News.

27. Although para. 1(b) of the Amended Statement of Claim and para. 9(2) of the Re-amended Reply assert that the 1st Plaintiff was the proprietor of the Oriental Daily News without the addition of the word "registered", there was no evidence before me that the 1st Plaintiff undertook any business as proprietor or publisher. I shall deal with this in detail later.

28. I should note at this juncture that Mr. Cheng Huan S.C. leading counsel for the Plaintiffs, at the commencement of the trial further amended the Reply to plead the alternative case that a company other than the 1st Plaintiff, namely Oriental Daily News Limited, was at all material times the proprietor, publisher and printer of the Oriental Daily News, and that the 1st Plaintiff acted as the registered proprietor, publisher and printer at the "appointment and/or nomination" of Oriental Daily News Limited. (I should add that a further pleading that reputation and goodwill as proprietor and publisher was held by the 1st Plaintiff on trust for Oriental Daily News Limited, and that the proceedings were being brought by the 1st Plaintiff for the benefit of Oriental Daily News Limited was, however, not proceeded with by counsel for the Plaintiffs.)

29. The Defendants deny that the 1st Plaintiff was the proprietor or the publisher of the Oriental Daily News. Their case was that the proprietor of the Oriental Daily News was the 2nd Plaintiff and they relied on the conviction of the 2nd Plaintiff as the proprietor of the Oriental Daily News in MP 407/98, and the presumption provided under section 62 Evidence Ordinance. As far as the identity of the publisher was concerned, Mr. Denis Chang S.C. leading counsel for the Defendants was content to accept that Oriental Daily News Limited was the publisher of the Oriental Daily News.

Registration

Registration of a newspaper's proprietor and publisher are required under the Registration of Local Newspapers Ordinance Cap.268, and it is clear from the extracts from the register kept under that statute that the 1st Plaintiff has been so registered since 1992. Further the 1st Plaintiff's name is disclosed as publisher on each issue of the Oriental Daily News.

30. However, registration as proprietor and/or as publisher is not conclusive of the issue of the identities of the proprietor and the publisher. It is only one factor to be taken into account when the Court considers all the evidence placed before it on the issue.

Evidence

31. As far as the evidence was concerned, it was admitted by Mr. Mak Kam Keung in his oral evidence that the 1st Plaintiff was a "shell" company, which had no assets, no income and no expenditure such as would be expected for the ownership or the operation of a large newspaper business. The 1st Plaintiff has virtually no staff - Mr. Mak was in effect the 1st Plaintiff's only employee. The 1st Plaintiff had no operational functions save as "licence holder" which I understood to mean the company whose name had been provided for registration under the Registration of Local Newspapers Ordinance Cap. 268. However, I do not see how mere registration could be regarded as any sort of business operation.

32. As stated earlier, the Defendants rely on the presumption provided by section 62 Evidence Ordinance for their case that the proprietor of the Oriental Daily News was not the 1st Plaintiff but the 2nd Plaintiff, as was found by Chan H.C.C.J. and Keith, J. (as he then was) in MP 407/98.

33. Ironically, the 2nd Plaintiff has disavowed any such interest in the Oriental Daily News. The Plaintiffs' case is that if the proprietor of the Oriental Daily News was not the 1st Plaintiff, then it was Oriental Daily News Limited, even though this latter company was not a party to the action and even though the 1st Plaintiff had abandoned the contention that it was pursuing this action on trust for this company.

34. The Plaintiffs have failed to show that the decision reached by Hon. Chan H.C.C.J. and Keith J. was "per incuriam" as they suggested. There is no evidence that the situation in 1995 (when the events in this case took place) was any different from that in 1997 (when the events in MP 407/98 took place). The decision of the court in MP 407/98 was reached after a lengthy and hard fought battle where the lines were drawn precisely at this very issue. The 2nd Plaintiff did not appeal against this finding.

35. Although I note the Plaintiffs' submission that the financial statements of Oriental Daily News Limited had not been placed in evidence before the court in MP 407/98, there was express evidence before that court that the income of the Oriental Daily News was received by Oriental Daily News Limited and that it was this company that paid the expenses of the newspaper.

36. Further in support of the 2nd Plaintiff's proprietorship of the Oriental Daily News, I note that copyright in the articles in the Oriental Daily News was not claimed by Oriental Daily News Limited, and it would appear from HCA 12063/96 that it was the 2nd Plaintiff who asserted copyright in the photograph of Ms. Faye Wong taken by a journalist employed by OPG Human Resources Ltd. and which was part of the cover of the Oriental Sunday Magazine.

37. It is of a little interest that in an article published in the Oriental Daily News on 31st March 1995 東方報業集團 (Oriental Press Group) is referred to as a publicly listed company owning three newspapers and two magazines.

38. In conclusion, I find that the 1st Plaintiff did not undertake any business as proprietor of the Oriental Daily News, notwithstanding its registration under Cap.268. The 1st Plaintiff therefore has no cause of action in relation to any defamation of the Oriental Daily News. Registration as proprietor and publisher does not by itself give it any capacity to sue, because a company can only sue if it has been defamed in the way of its business (D & L Caterers Ltd v D'Ajou [1945] 1 KB 364, 367; Scott v Fourth Estate Newspapers Ltd [1986] 1 NZLR 336, 340) and the 1st Plaintiff had no interest either as proprietor or as publisher of the business of the Oriental Daily News.

39. It follows from the findings above that even if the article in question did contain any defamatory imputations against the proprietor or publisher of the Oriental Daily News, the Defendants would not be liable to the 1st Plaintiff (as it was neither proprietor nor publisher), nor would they be liable to the 2nd Plaintiff (as it has not made any claim in the action in that capacity, and indeed has explicitly disavowed any such interest).

(3) Would a reasonable reader of the subject article who knew of the 2nd Plaintiff be likely to understand that the words referred to it?

40. It is well established that the approach that should be taken by the Court, in considering the issue of identity of the subject matter of the alleged defamation, should be an impressionistic one (Morgan v Odhams Press Ltd. (H.L.) [1971] 1 WLR 1239, 1254 C-D).

41. The court should also look at the character of the article. In the present case, when the article is a short column in the features section of a newspaper, an ordinary reader would probably read the article in a more relaxed and probably less attentive way.

42. The 1st Plaintiff was not referred to expressly, and as I have found that it is neither the proprietor nor the publisher of the Oriental Daily News, it follows that it has not been referred to impliedly either.

43. The question is whether the 2nd Plaintiff has been referred to. The 2nd Plaintiff is a listed company and so at least fairly well-known to members of the public. Its Chinese name is 東方報業集團有限公司. The first four characters of its name 東方報業 were stated in the second line (in the original format) of the article in question. There is also a reference to the last two characters of its name in the same sentence. The complete sentence was as follows:

"黃君和劉君兩位來函指出，他們不值東方報業所為，認為這次事件是小題大造，而報刊以傳媒作為集團利益之工具，實有違反新聞媒介之應有操守。"

The characters 東方報業 were also referred to in the first and last paragraphs of the earlier article as follows:

"東方報業向無綫電視展開攻勢發動攻擊已有一段時間。"

"東方報業繼續死纏爛打，連讀者也開始覺得悶了。"

I find that those words would give the impression to an ordinary sensible reader that the 2nd Plaintiff was the subject of reference. Where the writer wished to refer to the newspaper, the words "東方日報" i.e. the name of the newspaper itself, were used. The words "東方報業" (part of the name of the 2nd Plaintiff) were clearly a reference to another entity.

44. Although the Defendants submitted that a number of other companies in the group had names starting with 東方報業, (viz. 東方報業樓宇管理有限公司，東方報業財務有限公司，東方報業人事資源有限公司，東方報業印刷有限公司，東方報業中心有限公司) it is clear that the article would not be understood as referring to any activities of these companies, but to the activities of the 2nd Plaintiff which was the proprietor of the Oriental Daily News and the holding company and head of the group, and the entity which was the most interested in any battle against TVB, given its interest in the Eastern Express.

45. The Defendants called evidence of the writer Dr. Lui and the sub-editor Mr. Wong to the effect that they did not intend or understand any reference to the 2nd Plaintiff. It is clear law that the subjective intention of the writer or the sub-editor is irrelevant. What is relevant is the objective impression that would be derived by an ordinary sensible reader.

46. In any event, Dr. Lui's evidence was that "東方報業" was a reference to "any discrete member of the Oriental Press Group". That being the case, the words could reasonably be understood to mean the 2nd Plaintiff, being the most prominent member of the Group, the holding company at its head and a publicly listed company.

47. Dr. Lui further said that his intended reference to "集團" was to "group" with a small "g" rather than the word actually in the 2nd Plaintiff's name. That may well be so, but in my view the use of the word "集團" when read impressionistically serves to reinforce the understanding that the earlier words "東方報業" were by themselves a reference to the 2nd Plaintiff being the head of the group.

48. Accordingly, I find that the 2nd Plaintiff was referred to in the article in question.

(4) Meaning of the words

49. As I tried this action without a jury, I did not need to go through the two-stage process of first, considering whether the words were capable of bearing the pleaded defamatory meanings, and secondly, whether the words did in fact bear those meanings (Slim v Daily Telegraph Ltd. [1968] 2 QB 157, 174-5). I can go straight to the questions "Is the natural and ordinary meaning of the words that which is alleged in the Statement of Claim?" and "If not, what, if any, less injurious defamatory meaning do they bear?"

50. It is well established that words would be defamatory if they would cause right thinking members of the public to shun the plaintiff, tending to lower him in the estimation of ordinary right thinking members of society generally.

51. The meanings propounded by the Plaintiffs have been pleaded in para. 5(b) of the Amended Statement of Claim and I need not repeat them here.

52. In light of my finding that the 1st Plaintiff was not the proprietor nor the publisher of the Oriental Daily News, and as the 2nd Plaintiff has not pleaded any cause of action or made any claim as proprietor or publisher, it is not necessary for me to make any findings as to whether the article bore any defamatory meanings against the proprietor or the publisher of the Oriental Daily News.

53. I shall therefore go directly to the issue of the meaning of the words, and whether they were defamatory of the 2nd Plaintiff in its own right.

54. The meanings of the words as pleaded by the 2nd Plaintiff were denied by the Defendants, who have denied that any words were defamatory, and who have pleaded their own meanings of the words and submitted that the words bearing those meanings were fair comment, and/or were justified (cf. Lucas Box v. News Group Newspapers Ltd. [1986] 1 WLR 147, 153 F-H).

55. I find that insofar as the words complained of by the 2nd Plaintiff are concerned (as set out in the Schedule to the Amended Statement of Claim), the following meanings are apparent to any ordinary sensible reader:-

(a) That the 2nd Plaintiff was over-reacting, and that its conduct was petty.

This emerges very clearly from that part of the second sentence of the 1st paragraph of "Reply to Readers": "黃君和劉君兩位來函指出，他們不值東方報業所為，認為這次事件是小題大造..."

(b) In my judgment, it is also apparent from the article "Reply to Readers" that the words meant that the 2nd Plaintiff had initiated an attack on TVB and that (i) as part of this attack, the Oriental Daily News had become a tool of its group interests, and (ii) it (the Oriental Daily News) was unable to act in a fair and balanced way and that this contravened a newspaper medium's ethics. These meanings are apparent from the following words:-

(i) "...報刊以傳媒作為集團利益之工具，實有違反新聞媒介之應有操守。他們認為這種媒介戰，跟一些有政治背景之報導宣傳政治意識形態，打擊政敵，沒有甚麼分別。... 「媒介戰」一文的主要論點，是想在上述傳媒道德問題之外，另外指出今時本地媒介互相品評，其實很難完全放下集團利益，做到公正平衡。東方日報以縮細電視節目表及連日報導低收視作為攻擊無綫之手段，只是極端例子。"

(ii) ...報刊以傳媒作為集團利益之工具，實有違反新聞媒介之應有操守。...「媒介戰」一文的主要論點，是想在上述傳媒道德問題之外，另外指出今時本地媒介互相品評，其實很難完全放下集團利益做到公正平衡。"

I hold that these words containing the meanings as found above are defamatory of the 2nd Plaintiff, as they would tend to lower the 2nd Plaintiff in the estimation of right thinking ordinary members of society generally.

(5) Defence of fair comment

56. Having found that the words were defamatory, the burden falls on the Defendants to prove for the defence of fair comment that (a) the defamatory statement was comment; (b) that there was a sufficient substratum of true fact on which the comment was based; (c) the comment was a comment that an honest person might make (even if the comment was prejudiced or exaggerated); and (d) it was comment on a matter of public interest.

57. As far as the fourth requirement is concerned, it was accepted by Mr. Cheng Huan S.C. on behalf of the 2nd Plaintiff that the ethical standard of news media and any proprietor of news media, and the proper duties and functions of news media, are matters of public interest, and I agree. The public expects a news medium to be objective in its coverage, and if anyone had exerted influence of any kind on a news medium which may affect the objectivity of its coverage, that would be a matter of public interest.

58. I then deal with the other requirements of this defence. The first requirement is that the defamatory statement must be comment, and not an assertion of fact. The test is whether a reasonable ordinary reader would regard the statement as a statement of comment, or one of fact. Words or phrases such as "認為" or "意見" are indications that the statement is one of comment, but such words or phrases are by no means conclusive. The statement should be considered in terms of both its content and its context.

59. In the present case, I find that the statement that the 2nd Plaintiff was overreacting and acting in a petty way to be a clear statement of comment, as these are obvious expressions of opinion on the appropriateness of the 2nd Plaintiff's attitude vis-a-vis TVB. Views as to whether someone is broad minded or petty clearly vary with the breadth of the writer's own mind and the generosity of his spirit. Therefore it is clear in my judgment that the statement that the 2nd Plaintiff was overreacting and being petty is one of comment.

60. Similarly, I find that the statement that as part of the 2nd Plaintiff's attack, the Oriental Daily News was not acting in a fair or balanced way and that there was a contravention of ethical standards on the part of news media to be a matter of comment. The statement that someone was acting fairly or unethically depends (at least in the present context) on the writer's perception of proper fair and ethical behaviour. In the absence of any express rules of ethical behaviour, it is a question of concept and standards whether an act is unethical or not. That being the case, the statements that "實有違反新聞媒介之應有操守" and "在上述傳媒道德問題之外 ..." are in my judgment clearly statements of comment.

61. However, as for those parts of the defamatory statements which state that the 2nd Plaintiff had influenced the Oriental Daily News a news medium to act in certain ways, I do not find that these are comment. The allegation of influence is an allegation of fact. The statement is of the 2nd Plaintiff's exertion of influence - that is an act, it is not a matter of opinion. The words "作為集團利益之工具", when read with "很難完全放下集團利益" and "打擊政敵" read with "作為攻擊無綫之手段" are by an ordinary sensible interpretation, assertions of fact.

62. Returning at this juncture to those statements which I have found to be comment, the article did contain a sufficient substratum of fact on which the comments were based. The article referred to the reduction in size of the print of TVB's listings in the Oriental Daily News and the reports on TVB's low audience ratings on successive days as the means of attacking TVB. These were sufficient substratum of fact on which to base the comment that the 2nd Plaintiff was overreacting and behaving in a petty way, and that such behaviour of the news medium was unfair and unethical.

63. These are comments that an honest person could have made. Some may think that in the media's "dog-eat-dog" world, it was not being small minded unfair or unethical but that is not the point. The point of a defence of fair comment is that it was a matter of opinion, and since the substratum of fact had been sufficiently shown in the article, I find the defence of fair comment established in respect of those parts of the defamatory statements at paras. (a) and (b)(ii) above.

(6) Not actuated by malice

64. In respect of the defence of fair comment, the 2nd Plaintiff has sought to rebut the defence by adducing evidence purporting to show that the Defendants were motivated by some purpose other than that of a pure expression of a commentator's opinion.

65. The 2nd Plaintiff has tried to argue that the malice was not that of the writer Dr. Lui, but that of the sub-editor Mr. Wong. The burden of course is on the 2nd Plaintiff to satisfy the Court that Mr. Wong was so actuated.

66. I find that burden has not been discharged. Dr. Lui is a well qualified and well respected social scientist. The 2nd Plaintiff does not seek to dispute that. The 2nd Plaintiff has attempted to discredit Dr. Lui on his evidence of the letters from the two readers which were referred to in the article 答讀者 (Reply to Readers). These letters have not been produced and the 2nd Plaintiff has therefore questioned whether these persons and these letters really existed.

67. It is true that these letters have not been produced to the Court and Dr. Lui's affirmation is less than clear when he refers to these letters having been discarded when his evidence was that they had been mislaid.

68. However, having seen and heard Dr. Lui give evidence in the witness box, I have no doubt that he was a witness of truth when he said that he had in fact received the two letters. There was a ring of truth in that at the end of the article 答讀者 (Reply to Readers), Dr. Lui deals with a completely unrelated topic - that of his travels to South Africa and which was his reply to another part of Mr/Ms Wong's letter. The inclusion of that completely irrelevant and unconnected topic is certainly consistent with Dr. Lui's evidence that these letters did exist, and that he was indeed replying to them when he wrote the article in question.

69. As to the loss of the two letters, whilst that may be unexpected, I accept Dr. Lui's evidence on this aspect. Dr. Lui himself was never made a party to the action, and he had never been asked by the Defendants' solicitors to give the two letters to them for safe keeping. As for Mr. Wong the sub-editor, I do not find any malice on his part at all. It would be remembered that Dr. Lui was a well-known social commentator writing in a regular column in the features section of a newspaper. There was no reason for Mr. Wong to doubt any part of the contents of Dr. Lui's article. Mr. Wong had read the article and had found nothing in the facts disclosed which were known or ought to have been known to him to be wrong. Accordingly, I find no intentional malice or recklessness on his part such as would rebut the defence of fair comment.

(7) Defence of justification

70. I then deal with the statement which I have found to be statements of fact. These are:

"報刊與傳媒作為集團利益之工具 .... 他們認為這種媒介戰 .... 打擊政敵，沒有什麼分別。" "其實很難完全放下集團利益，做到公正平衡。東方日報以縮細電視節目及連日報導低收視，作為攻擊無綫之手段，只是極端例子。"

In my judgment, reading the emphasised words as an ordinary sensible reader, it would be apparent that the writer was asserting, as a fact, rather than as a comment, that the 2nd Plaintiff had been employing the Oriental Daily News as a tool to advance the interests of the Group - which was owned and headed by the 2nd Plaintiff, and that the Oriental Daily News had reduced the size of print for TVB's programmes and successively reported the station's low ratings as a means of attacking TVB.

71. There is little if any difference in the meanings of these words as pleaded in paras. 5(d)(ii) and (iii) of the Amended Statement of Claim and paras. 7(i) and (iii), (4), (5) and (6) of the Re-amended Defence. They really boil down to the statement that the 2nd Plaintiff was using the Oriental Daily News, a news medium, to further its own interests, which at that time lay in attacking TVB.

72. The issue is whether the defence of justification is established on the evidence. It is clear law that for the defence of justification to succeed, it is not necessary that the truth of the statement be shown in the article itself. In other words, unlike the defence of fair comment which requires the writer to lay out a sufficient substratum of true fact within the four corners of the article, the truth of the statement for the defence of justification can be proved beyond the article.

73. In the present case, I find that the 2nd Plaintiff must have influenced the Oriental Daily News (a newspaper of which it was proprietor) to launch the attack on TVB. There is no other reason for an objective news medium to have done the extraordinary acts in the Oriental Daily News. Granted, the reversal of the audience ratings trend (which previously TVB had led) was news worthy. Further one might also take into consideration the more sensationalist style of reporting in the Oriental Daily News. However, despite the above, the reduction of the size of print for TVB's programmes listings, the taking off of TVB's logo and the particularly sarcastic and aggressive style of writing in the articles on ratings on successive days were, even if not bizarre, certainly not acts normally undertaken by an objective news medium. These were the actions of a party who was clearly demonstrating by these acts a deliberate intention to demean or humiliate TVB.

74. As these acts of deliberate humiliation would not normally be undertaken by a news medium not acting under the influence of interested parties, I have looked to see whether there was any evidence to explain why the editors or the sub-editors of the Oriental Daily News took these actions. However, no explanation has been profferred by the editors or the sub-editors as to why that was done.

75. The reduction in the size of print and the disappearance of the TVB logo has not been explained to readers in the newspaper itself. Further the editors of the Oriental Daily News and the sub-editors of the entertainment section have not given evidence to the Court which might have explained why these acts were done. The Court cannot assume that these news media workers had any personal grudge against TVB. It is therefore reasonable to infer, and I so find, that these deliberate acts of humiliation of TVB were done under the influence of the 2nd Plaintiff, who was the proprietor of the Oriental Daily News and who was the head of the group, and which had an axe to grind in that the Eastern Express had been attacked by TVB in the Pearl Report.

76. Further there is evidence that the 2nd Plaintiff did have the means of influencing the Oriental Daily News. The evidence of Mr. Mak was that the four senior management of the 2nd Plaintiff had direct responsibility for the Oriental Daily News and there would be means of access to the editor, sub-editors and printer of the Oriental Daily News.

77. I find therefore that there was sufficient truth of the statement that the 2nd Plaintiff had influenced the Oriental Daily News, a news medium, or used it as its tool to attack TVB. It was no coincidence that on 16th February 1995, TVB apologised to the Oriental Press Group, and very shortly thereafter on 18th February 1995, the disappearance of the TVB logo was matched by the disappearance of the logo for ATV as well. Again no explanation has ever been given by the editors of the Oriental Daily News or the sub-editors of the entertainment section for this further change in the format.

(8) Damages

78. Finally, as a matter of completeness I would indicate the level of damages that I would have been inclined to award the 2nd Plaintiff if I were wrong and it was found that there was no fair comment or that the defence of justification failed.

79. In my view, the damages award in Eastern Express Publisher Ltd and anor v Mo Man Ching [1998] 2 HKC 593 (one aspect which neither party has appealed) would have been the closest award, not only in time, but also in the sting of the defamation i.e. the allegation of a lack of ethics in a situation where one member of the media was pitted against other members of the media.

80. Accordingly, I would have made a similar award of $80,000.00.

Costs

81. Finally, there is the issue of costs. I would make an order nisi that they should follow the event, that is, the Plaintiffs, having failed, are to bear the Defendants' costs.