LING NAM HERBALIST KOON AND OTHERS v. RADIO TELEVISION HONG KONG

1997, No. A263

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL JURISDICTION

__________

__________________

J U D G M E N T

__________________

(A) Introduction

1. The Plaintiffs are husband and wife. After they came to Hong Kong from China, they operated a baldness treatment centre in the name of "Ling Nam Herbalist Koon" or "Chan Lam Herbalist Koon" since 1990.

2. The Defendant is a government run radio and television broadcasting station. One of the television programmes produced in Chinese by the Defendant was called "Consumer Plan" ("C 計劃" in Chinese). The Consumer Council was described in this programme as its technical consultant. A section of the "Consumer Plan" programme broadcast by the Defendant on 10 December, 1994 from 8:00 to 8:30 p.m. on the ATV Home channel was about the effectiveness of baldness treatment ("the Defendant's Programme").

3. The Plaintiffs complained that the Defendant's Programme made false and derogatory remarks of the Plaintiffs and their baldness treatment business, thereby causing loss to the Plaintiffs' reputation and their business (collectively "the Plaintiffs" unless specifically distinguished).

4. The trial of this action was conducted mainly in Chinese: only the submissions of Defence Counsel were made in English as he had to deal with quite a number of legal issues. To deal with the legal issues raised by Defence Counsel, I consider it better to give my Judgment in English.

(B) Matters Justitiable by the Court

5. During the trial, the Plaintiffs complained about the Defendant's conduct including:-

6. A Court of law is not a forum where all kinds of complaint can be lodged and dealt with. The proper task of the Court is to perform its judicial function and to do so within the law and in accordance with legal principles. Thus, for example, a Court is generally not a supervisor of the mass media, whether privately run or government run, unless they are in contravention of the law.

7. For these reasons, it would be inappropriate for this Court to deal with quite a number of the Plaintiffs' complaints raised in the trial such as their complaints about the way in which the Defendant (or its reporter) prepared the Defendant's Programme, or as to how the Defendant handled the Plaintiffs' complaint.

8. What this Court can and should deal with in this action is whether the Defendant, by broadcasting the Defendant's Programme, committed a wrong which is actionable and thereby caused loss to the Plaintiffs or their business. On this basis, I now proceed to deal with the dispute between the parties.

(C) Contents of the Defendant's Programme

9. The Defendant's Programme was a documentary lasting about 23 minutes long. In essence, it was a programme providing various kinds of information of interest to consumers. It was divided into various sections dealing with different subject matters. A summary of the Defendant's Programme is set out below.

10. The part of the Defendant's Programme dealing with the report on the effectiveness of baldness treatment took up about 5 minutes 30 seconds (from about 17:17 min. to about 22:49 min.). From about 21:44 to about 22:03 minutes (a total of about 19 seconds) of the Defendant's Programme, while the advertisements of (a) another centre and (b) that of the Plaintiffs' were shown, the following remarks in Chinese were made:-

This can be translated as:-

11. The entire section of the Defendant's Programme relating to the report on baldness treatment was severely criticized by the Plaintiffs. The part of the transcript (and English translation) in bold type and italics set out above was the part which (the Plaintiffs argued) referred to the Plaintiffs ("the Remarks") because as and when the reporter made the Remarks, the Plaintiffs' advertisement was shown on the television screen. This part of the Defendant's Programme lasted for about 8 seconds (that is, from about 21:55 to about 22:03 minutes) ("the relevant part" or "the relevant part of the Defendant's Programme").

12. It was agreed between the parties that the portion of the Plaintiffs' advertisement which had been shown in the relevant part of the Defendant's Programme is as indicated in yellow in exhibit "D1". The Plaintiffs' name, address or information relating to the Plaintiff's identity did not appear in this portion. The Plaintiffs testified that their advertisement was unique in having feature of there were 12 photographs located somewhere in the middle of the advertisement in 2 horizontal rows, showing the difference in the hair growth of 6 patients before and after treatment. On the other hand, the Defendant argued that there was nothing unique in the basic concept used in the advertisement and the advertisement shown cannot objectively and reasonably be identified as referrable to the Plaintiffs. The Defendant argued that it was usual to include in a lot of advertisements used by baldness treatment centres a number of photographs showing the claimed difference in the hair growth of the patients before and after treatment. The Defendant produced a number of these advertisements at pp. 105-7 of the Documents Bundle as examples.

13. It must be noted that I only used the phrase "the Plaintiffs' advertisement" for convenience. To use a more accurate phrase, it should be "the advertisement admitted in this trial to have been the Plaintiffs' advertisement".

(D) The Issues Between the Parties

14. Since the Plaintiffs have been acting in person, it would be too much to expect them to expressly state their cause(s) of action in law. Mr. Chow for the Defendant submitted that, assuming that the Plaintiffs' evidence was accepted, the Plaintiffs' claim can be brought under two possible causes of action in defamation and in malicious falsehood, subject to any legally valid defence(s) which may be available to the Defendant. I agree with Mr. Chow's analysis on this point.

15. In relation to the Plaintiffs' claim in defamation, Mr. Chow argued that there were 2 lines of defence on which the Defendant could rely:-

16. In relation to the Plaintiffs' claim in malicious falsehood, Mr. Chow argued that there were 3 lines of defence:-

Apart from these two causes of action, I considered two other causes of action: one in "conspiracy to injure" and another in "misstatement". These will be discussed in later paragraphs herein.

(E) Credibility of Witnesses

17. In view of the issues raised by the Defence, the credibility of witnesses, at least so far as the Defence witnesses are concerned, is not crucial to the issue of liability. However, I shall set out my findings on credibility both for the sake of completeness and because it is relevant to the issue of quantum (if that needs to be decided):-

(F) Cause of Action in Defamation

18. Although this was not a cause of action expressly referred to in the Statement of Claim, Mr. Chow fairly accepted that from the facts set out therein, defamation must have been a cause of action contemplated by the Plaintiffs.

19. In the leading textbook on the subject, Gatley on Libel and Slander (1998) 9th ed., a working definition of defamation was given: "Defamation is committed when the defendant publishes to a third person words or matter containing an untrue imputation against the reputation of the plaintiff.": see para. 1.3 thereof. Two phrases of this definition were underlined and italicized because these were the two defences put forward by the Defendant. They will be dealt with further below.

(F1) Reference to the Plaintiffs

20. To succeed in an action of defamation a plaintiff must prove, among other things, that he was the person defamed. If the words complained of named the plaintiff, there is usually no problem with proving that element. If the plaintiff is not expressly referred to (for example, by name), it is a question of whether the words might be understood by reasonable people to refer to the plaintiff: Gatley, para. 7.1. If it is asserted that people with special knowledge would be able to identify the plaintiff from the words published, the question is answered by reference to what reasonable people possessing that knowledge would have understood them to refer to: Gatley, para. 7.1, text to n. 5. As regards the last point, it is a question of degree how far evidence will be needed to connect the plaintiff with the libel: Gatley, para. 7.3, text to nn. 27, 29 and 30 and para. 32.16.

21. As can be seen under the heading "Contents of the Defendant's Programme", the relevant part of the Defendant's Programme lasted for about 8 seconds. The Plaintiffs contended that even so, this advertisement was clearly referrable to the Plaintiffs because of the unique feature in their advertisement: there were 12 photographs laid out in 2 horizontal lines and they showed how the top of 6 patients' heads looked like before and after treatment was given. The Plaintiffs said that they had placed such an advertisement with many newspapers and magazines continuously for a long time before the Defendant's Programme was broadcast. As a result, many people must have seen it and would be able to identify it as related to the Plaintiffs when they saw this advertisement.

22. Mr. Chow argued that the relevant part was not referrable to the Plaintiffs even if their advertisement had been published as extensively as claimed because:-

23. Having examined the tape recording of the Defendant's Programme, and pp. 105-7 of the Documents Bundle (which were copies of advertisements of other baldness treatment centres), I agree with Mr. Chow. Further to the points he raised, I also notice that although the Plaintiffs' advertisement was shown for about 8 seconds, these 8 seconds were broken into two different shots. The second shot was a close up shot of a narration in Chinese which the Plaintiffs did not assert contained any identifying feature. Only the first shot lasting about 5 seconds showed the Plaintiffs' advertisement which included the alleged unique and identifying feature. It must be noted, however, the shot actually showing this so-called unique feature lasted less than the full 5 seconds.

24. I came to the aforesaid conclusion as to what a reasonable viewer of the Defendant's Programme would think. I have also considered the question of whether the Plaintiffs needed to adduce direct evidence from witnesses who can be regarded as reasonable viewers who have special knowledge of the Plaintiffs' advertisement. I agree with Mr. Chow that in the context of this case, this is a matter on which evidence was required and the Plaintiffs have failed to adduce any such direct evidence. I also do not find that the Plaintiffs had discharged the burden of proof on this point having considered the totality of the evidence adduced in the trial.

25. The Plaintiffs in their final submissions mentioned that the witnesses called by the Defence admitted in their testimony that the advertisement shown in the relevant part was the Plaintiffs' advertisement. The Plaintiffs argued that therefore the issue of whether or not the Remarks were referrable to them was beyond argument. The Plaintiffs have missed the point. The issue of identification must be determined by reference to the alleged defamatory material, that is, the Defendant's Programme. The Defendant was not sued for defaming the Plaintiffs in the course of the trial, but for publishing the defamatory material in the Defendant's Programme.

26. For these reasons, I find in favour of the Defendant on this point. The Plaintiffs' claim is therefore dismissed on this point alone because liability has not been established.

(F2) Defamatory Meaning

27. Mr. Chow for the Defendant further argued that if I were against him on the first defence, his second defence would be that the words complained of were not defamatory. As I said earlier, I already found in favour of the Defendant and there is therefore strictly speaking no need to decide on this point. I shall however deal with it for the sake of completeness, assuming that I am in favour of the Plaintiffs on the first defence.

28. The relevant passages of his written final submissions on this point stated that:-

29. With respect to Mr. Chow, I do not agree with his submissions on this point. If we only consider the statement in the relevant part of the Defendant's Programme which reads: "As regards this Chinese herbalist clinic, it was one of those ineffective ones as revealed by the interviewee(s).", there may be some substance in Mr. Chow's point. However, the true meaning of a passage must be ascertained having regard to the context in which it was made. The relevant part was only part of the Remarks (as defined earlier). The Remark began by the following comment: "Actually not all centres can provide effective treatment for alopecia.". Another way of saying the same thing would be: "Some centres cannot provide effective treatment for alopecia.". The Remarks (which as stated earlier is assumed under this Part to refer to the Plaintiffs) were made as an example to support the said opening comment.

30. It is a matter of fact as to whether a person's ability or competence is called into question when it is asserted that his treatment is ineffective. If one patient makes this complaint, it may be that there were reasons peculiar to the patient making the treatment ineffective. The competence of the person giving the treatment therefore may not be involved. However, if the assertion is that this person's treatment is generally ineffective, a reasonable man would conclude that the ineffectiveness is related to his incompetence, that is, his lack of professional experience, skill and/or knowledge.

31. Having regard to the whole of the Remarks, I consider that the relevant part of the Defendant's Programme bore a defamatory meaning because considered in context, it called in question the competence of the Plaintiffs..

(G) Cause of Action in Malicious Falsehood

32. This cause of action was expressly referred to in the Statement of Claim. As stated above, Mr. Chow argued that the Plaintiffs also failed in establishing this cause of action because of the 3 points of defence raised by the Defence. I shall deal with these points below.

(G1) Reference to the Plaintiffs

33. My finding on the same issue has already been set out under heading "(F1) Reference to the Plaintiffs" above. For the same reasons set out therein, I reached the same conclusion that the Plaintiffs have failed to prove that the words complained of referred to them.

(G2) Falsity of the Words Published

34. The burden of proving that the words were false rests with the Plaintiffs: see Gatley, para. 20.6. As I have already concluded that the testimony of both Plaintiffs cannot be relied upon, this element has not been proven by the Plaintiffs.

(G3) Malice

35. Since I already found against the Plaintiffs on the earlier 2 points above, the question of whether the Defendant or its reporter or producer acted with malice is irrelevant. The test for deciding this point has been set out in Gatley, para. 20.7 and 20.8. If it were necessary to make a finding on this point, I find that the Defendant did not act maliciously.

(H) Other Possible Causes of Action

36. Since the Plaintiffs were acting in person, I have considered whether or not there were other possible causes of action relevant to their claim. I find that the other possible causes of action are one in "conspiracy to injure" and another in "misstatement". I raised these points with Mr. Chow and he dealt with them in a fair and competent manner. I shall set out these points further below.

(H1) Conspiracy to Injure

37. Mr. Chow submitted that there are 2 types of conspiracy to injure: a conspiracy to injure by way of an unlawful act and a conspiracy with intent to injure (although no unlawful act is involved). He submitted that if I find in his client's favour on the points of defence he raised, there is no evidence of (1) any conspiracy, (2) any unlawful act (whether civil or criminal in nature), or (3) any intent to injure. I agree with Mr. Chow on these submissions and find that this possible cause of action has not been established.

(H2) Misstatement / Misrepresentation

38. Mr. Chow submitted that a cause of action in misstatement or misrepresentation can only be brought successfully by a recipient of the statement, that this recipient relied on the statement or representation in question, and that he suffered loss as a result. Although the Plaintiffs may argue that they were two of the recipients, they clearly did not rely on the "misstatement" or "misrepresentation". Further, whatever loss the Plaintiffs might allege to have been suffered by them did not result from their reliance either. I also agree with Mr. Chow on these submissions.

(I) Quantum of Damages

39. Since I already found against the Plaintiffs on liability, I do not need to consider the question of quantum. However, if it were necessary for me to do so, I certainly do not consider that the quantum suffered by them to be anywhere near the sums they claimed.

40. As regards general damages suffered, taking into account the extremely short duration of the publication, (assuming that there were viewers who were able to identify the advertisement as related to the Plaintiffs) the number of such viewers must have been extremely limited. There was also no aggravating features in this case, for example, the Defendant was acting spitefully. For these reasons, I consider that the generally damages would have been in the range of $5,000 to $10,000.

41. There is no reliable evidence on any special damages having been suffered by the Plaintiffs. No award will therefore be made for this head of claim.

(J) Other Matters

42. I have stated earlier that the Courts are generally not a supervisor of the mass media. However, I feel compelled to say a few words about some matters disclosed by the testimony given by the defence witnesses.

43. As I understand from their testimony, the Defendant's Programme was intended to provide consumers with information on the provision of goods or services. It was produced by the Defendant which was a government run broadcasting station. The technical consultant of the Defendant's Programme was described to be the Consumer Council. Any uninformed viewer of the Defendant's Programme would naturally consider that the statements made and conclusions reached in the Defendant's Programme were well-researched into, true and accurate and carry much authority.

44. The testimony of the defence witnesses showed that the section of the Defendant's Programme on the effectiveness of baldness treatment was based entirely on statements made by "patients" when they were interviewed by the Reporter. The Plaintiffs, quite rightly in my view, pointed out that there were easy ways of verifying these statements, for example, the Reporter could have asked for objective proof like photographs taken of the patients before, during and after treatment to ascertain whether the claimed improvement in hair growth was true.

45. I can appreciate that if there was urgency in the matter, for example, if it were the broadcast of a news item, then it may not be feasible to carry out verification work. However, the section on baldness treatment was said to have been conceived since about August or October, 1994 (some 2 or 4 months before the Defendant's Programme). Further, this was a programme which would probably assist or impede the businesses of people who were referred to therein; commercial interest was therefore involved. Much more care should have been taken in ensuring the truth and accuracy of the broadcast materials than has been disclosed in the testimony. Alternatively, a clear qualifying statement ought have been made informing the viewers that there had been no scientific verification of the claims.

46. Further, I fail to understand why the Reporter did not provide the Plaintiffs with a chance of commenting on the adverse remarks of the interviewee(s) on the effectiveness of their treatment. The reason given by the Reporter was that he had earlier called the Plaintiffs and they declined to be interviewed "for fear of adverse effect on their business". That refusal of an interview was made before the "patient's" adverse remarks were made. If that was the reason for the Plaintiffs' refusal, there was all the more reason for the Reporter to inform the Plaintiffs about the adverse remarks to see if they would change their mind about the invitation to be interviewed.

47. Having made these observations, I must say that they are not relevant to the issues in this action. They also do not warrant the Plaintiffs to make a claim totalling some $807.8 million against the Defendant.

(K) Conclusion

48. To sum up, the Plaintiffs' claim is dismissed.

(L) Costs Order Nisi

49. There is no apparent reason why a costs order nisi should not be made pursuant to R.H.C. Ord. 42 r. 5B(6). Further, there is no reason why costs should not follow the event. The costs of this action are therefore to be paid by the Plaintiffs to the Defendant to be taxed if not agreed.

50. Since the Plaintiffs are acting in person, I think it is better if I mention that pursuant to Ord. 42 r. 5B(6), they may apply within 14 days after this decision is pronounced to vary the costs order nisi, failing which it will become absolute.