PUI KWAN KAY v. MING PAO HOLDINGS LTD AND OTHERS

CACV 201/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 201 OF 2013

(ON APPEAL FROM HCA NO. 854 OF 2010)

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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):

A. Facts and background

1.  On 31 March 2009, there was a soccer match in the First Division League in Hong Kong between Tuen Mun Progoal [“Progoal”] and Happy Valley Athletic Association [“Happy Valley”].  In the first half, Progoal led 1:0.  Then, in the second half, Happy Valley equalised at 14 minutes into the second half.  Soon after that, a player of Progoal got a red-card and he was sent off.  After that, several players of Progoal got yellow cards and the coach decided to substitute three players in the game. During the last 7 minutes of the game, Progoal conceded 4 further goals and the end result was 1:5. 

2.  Because of an outburst by a player of Progoal during the game after losing the second goal and the statement by three other players of Progoal in their blogs in the internet, there were wide-spread concerns in the community (with discussions over internet as well as the media) on suspected match-fixing.  In the blog of one of those players, the following was said:

“ 其實之前有好多場都有類似的情況，上半場都好好地，下半場d中國同胞就放輭手腳，任人魚肉！當中發生咩事，我想大家都會知道的，都是$$$$$$$$作怪！

…你說家中無錢開飯，我都不會贊同他們係球場中放輭手腳來賺錢，簡直是足球圈的恥辱！”

3.  It must be said immediately that this case is not about whether there had been match-fixing at that game.  As far as the materials before us reveal, there is nothing to suggest that any charge had been laid against anybody after investigations by the Independent Commission Against Corruption [“ICAC”] in relation to this game.

4.  However, in the midst of those concerns, the Hong Kong Football Association [“HKFA”], the organiser of league games in Hong Kong, also investigated into the matter.  The Plaintiff in this case was the Vice-chairman of HKFA.  HKFA held a board meeting on 6 April.  The board decided to refer the matter to the ICAC.  After the meeting, there was a press conference at which the Plaintiff answered some questions from the reporters. At that stage, the reporters were interested in finding out the background of Progoal and some questions were directed at the Plaintiff on the identity of the “班主” (which according to the Plaintiff’s own evidence[1] can be understood as the boss in English, though he also said there was no definite meaning of that expression) of Progoal and its source of finance.  Such questions were directed towards the Plaintiff because he had been the owner of the HKFA membership of the predecessor of Progoal, Shek Ki Mei Sport Association [“SKMSA”].  He explained at the press conference that he only played the role of an intermediary and he himself did not take up any office at SKMSA or Progoal. 

5.  A reporter of the 2^nd Defendant was present at the press conference.  There was a report on 7 April 2009 in Ming Pao, the newspaper published by the 2^nd Defendant, on this press conference.  According to that report, the Plaintiff told the reporters that he did not know who was the “班主” of Progoal.  He also said the financial support for Progoal came from various sources and he believed that those were proper sources.  He did not disclose the identities of those financial backers. 

6.  Other newspapers and media also ran reports about this press conference and the response of the Plaintiff to these questions.  At the trial and before us, references were made to reports in Apple Daily, Oriental Daily, Sun Daily, Sing Tao Daily, Tai Kung Pao, Wen Wei Pao, Metro Daily and AM 730. 

7.  According to the reports in those other newspapers, the Plaintiff gave some information about the history leading to Progoal using the membership of SKMSA and revealed that a Mr Yam and a Mr Fan were the organisers of Progoal.

8.  Subsequently, the Plaintiff was interviewed by Cable TV and Sing Tao Daily.  He gave more information about the sponsors of Progoal including those from Shenzhen and Yam’s efforts in procuring funds from a mainland beer company.  He also told Sing Tao about his relationship with Yam had Fan and how they came together to organize Progoal with his endorsement. This information was reported in Sing Tao Daily on 8 and 9 April.

9.  On 9 April, Progoal issued a report of its internal investigation of the match and concluded that there was insufficient material to lead to a finding of match-fixing.  The players (whose outburst at the game and postings on their blogs had fanned the public debate and concern) put forward some explanations and the general picture in the internal investigation report was that they disavowed allegations of match-fixing.  The HKFA accepted that report.  

10.  A reporter of Ming Mao contacted the Plaintiff by phone on 9 April and enquired with him about why on 6 April he withheld the information on Progoal which he gave in the interview by Sing Tao Daily reported on 9 April.  The Plaintiff answered, according to the special verdict of the jury, “一時記唔起” against a noisy background.  

11.  On 10 April, Ming Pao had 2 articles concerning the matter.  There was a report at p.A4 under the headline “普高球員紛改口否認假波 內部調查報告 張天德周偉明突反口”.  In that article, there was a short reference to the Plaintiff’s response to its reporter on 9 April mentioned at paragraph 10 above.

12.  Another article is an editorial published under the headline “問題球賽疑點重重蒙混過關足運必死” [“the Article”].  At the editorial, there was a reference to the report at A4 as related news report.  For ease of reference, we append the Article to this judgment.

B. Proceedings below

13.  In the present action, the Plaintiff claimed that the Article was defamatory of him and he sued the Defendants for damages and other relief.  In the Statement of Claim, the Plaintiff referred at paragraph 5 to these parts of the Article in his particulars of the defamatory words:

“ PARTICULARS OF THE WORDS

(1) “問題球賽疑點重重 蒙混過關足運必死”

[English Translation: “The questionable match is shrouded with suspicions.  Death is the fate of soccer if it is allowed to pass through equivocation.”]

(2) “另外，足總副主席貝鈞奇對於普高的「身世」和資金來源，短短3日之內，由「不知道」到一清二楚地披露，使人覺得整件事甚為蹺蹊，廉署應該深入調查，務使事態真相大白。”

[English Translation: “Furthermore, in respect of the background and source of funds of Progoal, the Vice-Chairman of the Hong Kong Football Association Ltd. Pui Kwan Kay changed from “I don’t know” to a full disclosure in details within a matter of 3 days. This makes people feel suspicious about the entire incident. ICAC should thoroughly investigate so that the truth can be revealed.”]

(3) “網誌並無打假波字眼，但是箇中情況呼之欲出。”

[English Translation: “The blog did not use the term match-fixing. However, the situation was obvious.”]

(4) “球賽被指有問題後，其他人也有類似上述3名球員的前言不對後語，一個是普高的總監和顧問任煒雄”

[English Translation: “After the match was pointed out to be questionable, other persons also gave contradictory versions like the aforesaid 3 players. One such person was the director-general and consultant of Progoal, Yam Wai Hung.”]

(5) “另一人是足總副主席貝鈞奇，本周一在足總的記者會上答覆提問時，對於普高班主是誰？經費來源？也是一問三不知，但是3日之後，他接受記者訪問時，承認與普高關係密切，對其背景、班主、班費等情況，如數家珍。然則3日之前，貝鈞奇為何與普高保持距離，其間情況耐人尋味。”

[English Translation: “Another such person is Pui Kwan Kay, the Vice-Chairman of the Hong Kong Football Association Ltd. When he was answering queries raised at the press conference held by the Hong Kong Football Association Ltd last Monday, he was unable to give any information as to who was the proprietor of Progoal and what was its source of funds. However, 3 days afterwards, when he was interviewed by reporters, he admitted close relationship with Progoal. He was able to say in great details the background, proprietor and source of funds etc of Progoal. In other words, why did he keep a distance with Progoal 3 days ago? That is intriguing.”]

(6) “問題球賽揭發之後，足總的處理，印證這個領導香港足球運動和發展的機構，頇顢無能，使人驚覺本港足球日益式微之根本原因。例如，事態發生之後，由足總主席梁孔德、貝鈞奇到其他人等，對於普高的班主是誰，都說不知道、不清楚。說明足總的管理，可謂一塌糊塗。”

[English Translation: “After the revelation of the questionable match, its handling by the Hong Kong Football Association Ltd. demonstrated the impotence of this organization which leads the sport of soccer and its development in Hong Kong. This caused people to suddenly realize the fundamental cause of the progressive decline of Hong Kong soccer. For instance, after the incident happened, peoples in the Hong Kong Football Association Ltd. like the Chairman Brian Leung and Pui Kwan Kay said they did not know and were not clear about who is the proprietor of Progoal. This demonstrated that the management of the Hong Kong Football Association Ltd. is in an utter mess.”]

(7) “足球總會只是少數人俱樂部的日子，一定要終結，亟亟於小圈子利益、藉此沽名釣譽、霸着毛坑不拉矢之輩，肯定不是推動足運、而是推倒足運的人。必須要公權力介入，才有可能改變目前足運半死不活的局面。”

[English Translation: “The era of the Hong Kong Football Association Ltd. as a club for a few must end. People interested only in attaining privileges amongst close circle in order to angle for fame and those who strive to remain in power but provide no contribution are definitely not the sort of persons that would promote the sport of soccer, but would instead cause its demise. Public authority must intervene in order to change the current stale fate of the sport of soccer.”] ”

14.  At paragraph 7, the Plaintiff pleaded the following as the meanings of those words:

“ (1) The Plaintiff deliberately hid his knowledge of and connection with Tuen Mun Progoal Football Team with a view to distancing himself from the incident of match-fixing;

(2) The Plaintiff acted suspiciously by giving contradicting versions about his knowledge of and connection with Tuen Mun Progoal Football Team;

(3) There are reasonable grounds to suspect the Plaintiff of being involved in the illegal activities of match-fixing and ICAC should launch an investigation against the Plaintiff;

(4) The Plaintiff is not capable of managing and/or participating in the management of the Hong Kong Football Association Ltd;

(5) The Plaintiff is not a suitable or fit person to be allowed to manage and/or participate in the management of the Hong Kong Football Association Ltd;

(6) The management of the Hong Kong Football Association Ltd, of which the Plaintiff is responsible or partly responsible, is in a mess;

(7) The Plaintiff is not truly interested in promoting the sport of soccer. He is only interested in cultivating personal benefits or privileges amongst himself and his close acquaintances;

(8) The Plaintiff is not truly interested in promoting the sport of soccer. He makes use of his position just to angle for personal fame; and

(9) The Plaintiff is not truly interested in promoting the sport of soccer.  He occupies powerful and influential positions but provides no contribution to the Hong Kong Football Association Ltd or the development of the sport of soccer.”

15.  The Defendants pleaded alternative meanings of the words in their Defence and denied that they were defamatory.  The alternative meanings were pleaded in paragraph 15 (in the context of the defence of justification) and paragraph 21(in the context of the defence of fair comment).  In this appeal, Mr Wong SC (appearing together with Mr Law for the Defendants in this appeal) referred to these alternative meanings as the Lucas Box meanings.  We shall adopt the same nomenclature.   

16.  The Defendants also ran the defence of justification and fair comment.  The Defendants also relied on what has come to be known as the Reynolds defence[2].  The case was tried before Au J [“the Judge”] and a jury.  In accordance with the practice laid down in the case law, the meanings of the words and whether they are defamatory, the defences of justification and fair comment were decided by the jury.  In respect of the Reynolds defence, with the agreement of the parties, several questions of fact were put to the jury for their determination by way of special verdicts.  In light of those special verdicts, it was agreed that the Judge should decide the ultimate question as to whether the Reynolds defence is established which involved an overall assessment of all relevant factors in deciding whether the Defendants met the standard of responsible journalism in the publication of the Article.   

17.  After trial, the jury found for the Plaintiff in respect of two of the pleaded meanings of the words, viz meanings (1) and (2) set out at paragraph 14 above.  The jury rejected the other meanings.  For the purpose of this appeal, it should particularly be noted that the jury rejected meaning (3).

18.  The Judge directed the jury that if they found the meanings of the words to be more serious than the Lucas Box meanings, the defences of justification and fair comment must necessarily fail.  Though the jury did not have to give reasons for their verdicts, it can readily be seen that meanings (1) and (2) as found by the jury are more serious than the Lucas Box meanings in that under meaning (1) the Plaintiff was alleged to have hidden his knowledge and connection deliberately.  There was no allegation of intentional hiding of information and no allegation of the Plaintiff hiding any connection with Progoal in the Lucas Box meanings.  The verdict (5:2) was the same in respect of the findings on the meanings of the words and the rejection of these defences.

19.  The jury reached the following special verdicts in the context of the Reynolds defence:

“ Special Verdict Questions

1. Did 古治雄 ring up the Plaintiff on 9 April 2009?

Verdict: Yes (unanimous)

2. If so, did he ask the Plaintiff why he did not tell the source of fund of Progoal shortly after the Press Conference on 6 April 2009; and yet he could give details of Progoal’s source of funds within 3 days on 8 April 2009?

Verdict: Yes (unanimous)

3. If so, did:

(1) the Plaintiff answer to 古治雄: “因為當時嘈吵，所以一時記唔起?”

Verdict: No (by a majority of 6:1)

Or

(2) the Plaintiff answer to 古治雄： “一時記唔起” against “嘈吵的環境”?

Verdict: Yes (by a majority of 6:1)

4. Did anyone in Mingpao know, prior to the publication of the editorial on 10 April 2009, that 陳朗昇 had already arranged a personal interview with the Plaintiff which would take place on 10 April 2009?

Verdict: Yes (by a majority of 5:2)

5. If so, did such person / persons have any responsibility or influence over the content of the editorial of 10 April 2009?

Verdict: No (by a majority of 5:2)

6. Was the statement that the Plaintiff acted “前言不對後語”:-

(a) a view point discussed at the 社評會 and adopted by the 社評組 as a view point to be made in the 社評;

Verdict: No (unanimous)

Or

(b) was it that it was just a personal view point of Mr Ho?

Verdict: Yes (unanimous)

7. Do you accept that prior to his writing of the editorial, Mr Ho had conducted verification by reading ALL the 7 other newspaper articles [東方日報; 蘋果日報; 大公報; 文匯報; 都市日報; 太陽報; and AM 730] published about the 6/4/2009 HKFA Press Conference?

Verdict: No (by a majority of 4:3)

8. If the answer to Question 7 is No, do you accept that prior to his writing of the editorial, Mr. Ho had read the newspaper 大公報 published on 7 April 2009 about the 6 April 2009 HKFA Press Conference?

Verdict: No (by a majority of 4:3)”

20.  With those special verdicts, counsel advanced further submissions before the Judge on the Reynolds defence. By a judgment handed down on 6 September 2013, the Judge found against the Defendants on the Reynolds defence though he accepted that the matters discussed in the Article were matters of public interest.  The Judge recorded at paragraph 33 that it was indeed common ground that the subject matter of the Article was a matter of public concern, satisfying the first limb of the Reynolds defence.  

21.  The Judge therefore ordered judgment be entered in favour of the Plaintiff and that the Defendants should pay damages to the Plaintiff in the sum of $500,000 (as assessed by the jury). 

C. The approach of the Court of Appeal

22.  This is the appeal by the Defendants against that judgment.  All the grounds in the Amended Notice of Appeal focused on the Judge’s conclusion on the Reynolds defence.  There is no challenge to the general verdict of the jury.  The Plaintiff filed a Respondent’s Notice challenging the Judge’s conclusion on public interest.

23.  In light of the submissions of counsel, before we consider the submissions of Mr Wong on the Reynolds defence, we have to address the submission of Mr Pow SC (appearing together with Mr Dawes SC for the Plaintiff) on the proper approach that this court should adopt in an appeal against the Judge’s determination of the Reynolds defence.   

24.  In Galloway v Telegraph Group Ltd [2006] EMLR 221 at paragraph 68, Sir Anthony Clark MR observed that in assessing a Reynolds defence, the balance was a matter for the judge and the court of appeal would not interfere unless the judge erred in principle or reached a conclusion which was plainly wrong.  That approach was followed in the subsequent case of Prince Radu of Hohenzollern v Houston [2009] EMLR 13 at paragraph 20. 

25.  Yet, in a later decision, Lord Neuberger MR expressed disagreement with that approach in Flood v Times Newspapers Ltd [2011] 1 WLR 153 at paragraphs 46 to 49.  His Lordship was of the view that the determination of the Reynolds defence did not involve the exercise of discretion.  He continued at paragraph 49:

“ …Where a first instance court carries out a balancing exercise, the appeal process requires the appellate court to decide whether the judge was right or wrong, but it should bear in mind the advantage that the trial judge had in the ways described in Jameel’s case [2007] 1 AC 359, paragraph 36[3]. Where the determination is a matter of balance and proportionality, it is, generally speaking, difficult for an appellant to establish that the judge has gone wrong.”

26.  When Flood v Times Newspapers Ltd [2012] 2 AC 273 came before the Supreme Court, in the leading judgment of Lord Phillips, this question was discussed.  At paragraph 104, after comparing these differences in views, said these:

“ …A decision on Reynolds privilege does not involve the exercise of discretion …”

27.  His Lordship then referred to cases decided in other contexts where appellate courts had applied a similar approach to Galloway when there is room for a legitimate difference of judicial opinion as to what the answer should be and where it will be impossible to say that one view is demonstrably wrong and the other demonstrably right.  At paragraph 105, Lord Phillips expressed this view, “Context is all important.  There is a spectrum …” and referred to the guidance of Hoffmann LJ in In re Grayan Building Services Ltd [1995] Ch 241 at 254:

“ generally speaking, the vaguer a standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standards [ie the relevant legal standards or test] have been met, the more reluctant an appellant court will be to interfere with the trial judge’s decision.”

28.  Because the Supreme Court did not hear oral submissions on where the Reynolds privilege came within this spectrum, the Supreme Court declined to lay down general principle on the proper appellate approach in that case, see Lord Phillips at paragraph 106; Lord Mance at paragraph 182; Lord Clarke at paragraph 186; Lord Dyson at paragraph 203.

29.  Mr Pow referred us to the decision of the Privy Council in an appeal from Dominica in Pinard-Byrne v Lennox Linton [2015] UKPC 41.  In that judgment, delivered on 12 October 2015, a few days before this appeal was heard, Lord Clarke (delivering the opinion of the Board) held that the court of appeal in that case should not interfere with the judge’s conclusion unless he reaches a conclusion which is wrong in principle or which can otherwise be seen to be wrong.  Lord Clarke also referred to the advantage the judge had over the court of appeal and “in a case where there are many factors in play, considerable respect must be paid to the balance struck by the trial judge”[4]. 

30.  However, the basis on which the court of appeal reversed the trial judge’s decision on the Reynolds defence was pinpointed by the Privy Council at paragraph 26: that the judge had not carried out a thorough analysis of the evidence in coming to the conclusion that the defendant had not made any inquiries of the plaintiff whilst the defendant had carried on investigation on the underlying project.  The Privy Council held that the court of appeal was wrong in focusing on the investigation on the underlying project when the judge was entitled to take account of the lack of evidence of investigation on the plaintiff’s wrongdoing alleged in the words complained of. 

31.  There was no discussion in the judgment of the Privy Council of the divergence of views between Lord Neuberger in Flood and Sir Anthony Clarke MR (as Lord Clarke then was) in Galloway.  Given the issue raised in Pinard-Byrne v Lennox Linton, supra, there was no need to go into that point in that case.  Thus, though we have no reason to disagree with what was said at paragraph 37 in Pinard-Byrne v Lennox Linton, supra, it may not be a comprehensive statement of the correct appellate approach.

32.  As it shall become clear from the discussion below, in the present appeal we are able to determine on the outcome of the appeal without going into the general question whether in the absence of errors in principle or other errors vitiating the determination like taking irrelevant consideration into account or failing to take relevant consideration into account, the court of appeal should only interfere with a judge’s determination of the Reynolds defence when it is plainly wrong.  However, we are in respectful agreement with Lord Phillips that the determination is not an exercise of discretion and whether an appellate court should interfere in a particular case must depend on the context.  In all cases, proper regard must be placed on the advantage of the judge, not only in respect of the assessment of the evidence but also in respect of the weight he attached to different factors in the particular context of the publication of the words in question. In most cases, these observations should be sufficient to guide the appellate court in deciding the outcome of the appeal. 

D. The public interest defence

33.  Since the House of Lords decision in 2001, the Reynolds defence has been applied in many subsequent cases and a substantial body of jurisprudence has been built up.  Notwithstanding its genesis from the traditional defence of qualified privilege, it is now recognized that it is more accurate to describe it as a defence of public interest, see Flood, supra, paragraphs 38, 42, 113, 122; Pinard-Byrne v Lennox Linton, supra, paragraph 19. 

34.  In Hong Kong, as far as we are aware, this defence was first discussed in an appellate judgment in Blakeney-Williams v Cathay Pacific Airways Ltd [2011] 1 HKLRD 901 in which the important English authorities were considered by this court.  Though that case went to the Court of Final Appeal[5], no issue was raised in respect of the Reynolds defence and the Court of Final Appeal therefore did not find it necessary to discuss the same in its judgment.

35.  Since then, the Supreme Court had decided Flood and in England, the defence was replaced by a statutory defence under section 4 of the Defamation Act 2013.

36.  We do not have similar statutory development in Hong Kong.  With the benefit of the judgment in Flood, we do not find it necessary to re-state what had been said in Blakeney-Williams v Cathay Pacific Airways Ltd, supra.  Instead, we would only highlight several points emerging from the corpus of case law which are of particular relevance in the present appeal.

37.  First, the raison d’ être of this defence is the need to strike a balance between the freedom of speech (which, in Hong Kong, is constitutionally entrenched by Article 27 of the Basic Law and the rights under the Hong Kong Bill of Rights art 16) on the one hand and the right to protection from unlawful attacks on reputation (protected by the Hong Kong Bill of Rights art 14) on the other.  This rationale was set out succinctly by Lord Nicholls in Reynolds v Times Newspaper Ltd, supra at p.204H:

“ The elasticity of the common law principles enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today’s conditions, to the importance of freedom of expression by the media on all matters of public concern.”

38.  In Loutchansky v Times Newspapers Ltd [2002] QB 783, at paragraph 36 the English Court of Appeal referred to relevant interest and duty:

“ The interest is that of the public in a modern democracy in free expression and, more particularly, in the promotion of a free and vigorous press to keep the public informed. …The corresponding duty on the journalist (and equally his editor) is to play his proper role in discharging that function. His task is to behave as a responsible journalist….”

39.  This was quoted by Lord Phillips in Flood at paragraph 38 after stating that the Reynolds privilege is a different jurisprudential creature from the traditional form of qualified privilege. 

40.  Second, in the application of the public interest defence, the courts must give due weight to the editorial judgments of journalists given their role in the overall equation of public interest.  Lord Nicholls referred to the vital functions of the press in Reynolds.  This proposition was further explained in the judgment of the Supreme Court in Flood, in particular in the judgment of Lord Mance[6] in which there was a comprehensive review of the relevant English as well as European case law.  At paragraph 137, His Lordship summarised the position in these words:

“ The courts therefore give weight to the judgment of journalists and editors not merely as to the nature and degree of the steps to be taken before publishing material, but also as to the content of the material to be published in the public interest. The courts must have the last word in setting the boundaries of what can properly be regarded as acceptable journalism, but within those boundaries the judgment of responsible journalists and editors merits respect….”

41.  On the role of press, Lord Mance said at paragraph 138:

“ British courts have developed the defence of public interest privilege under the influence of principles laid down in the European Court of Human Rights…. It emphasises the importance of the role of the press … as “public” or “social watchdogs” …”

42.  And then at paragraph 139:

“ In that context, the court has been ready to tolerate a degree of exaggeration or even provocation in the way the press expresses itself …

It has also recognised that the bounds of press criticism admissible in respect of politicians and also, though not necessarily to the same extent, officials are larger than they are in relation to private individuals …”

43.  At paragraphs 131 and 132, Lord Mance also highlighted the need to look at the position in the round and some latitude should be given to the content and presentation of news items of general public interest.

44.  We accept that it would not be in public interest to have a trial by the press, but as Lord Dyson opined at paragraphs 195 and 196 in Flood, there is the necessary safeguard in the requirement of responsible journalism.  Reynolds defence would not be available where the judgment of an editor or journalist was made in a “casual, cavalier, slipshod or careless manner”.  Lord Mance also said at paragraph 177:

“ …the existence or otherwise of Reynolds privilege must be judged on the facts as they reasonably appeared to the journalist at the time. But any journalist who publishes allegations must consider carefully the public interest in doing so and the terms in which he does so, at a time when the allegations have not been investigated or their accuracy determined, and weigh these against the risk of unjustified damage to the reputations of those affected.”

45.  Third, though the different elements in the application of the Reynolds defence had been expressed in the past as different limbs in the test[7], in the recent judgments the courts have come to recognize that ultimately the question is whether it is in the public interest to publish the statement notwithstanding its defamatory nature, see Lord Brown at paragraph 113 and Lord Mance at paragraphs123 to 127 in Flood. See also Pinard-Byrne v Lennox Linton, supra, paragraph 20.  The logic of the subsuming of different limbs into one single overall question was explained by Lord Mance at paragraph 123:

“ It will not be, or is unlikely to be, in the public interest to publish material which has not been the subject of responsible journalistic enquiry and consideration.”

46.  Whilst in most cases the overall results would probably be the same, the practical advantage of this approach is that it places greater emphasis on the overall balancing of the relevant factors with particular reference to the facts and circumstances of the case.  Lord Mance identified the question that the courts need to decide and the approach to be adopted at paragraphs 125 and 127:

“ In determining the public interest of material, the court considers both its subject matter and content and the appropriateness of publishing it as and when it was (or is to be) published.

…

It is for the court to determine whether any publication was in the public interest.  But the court gives weight to the ordinary standards of responsible journalism.  It does so in a broad and practical way, and in contexts going beyond the steps taken to check material.” 

47.  Thus, the effort taken in verification is only one factor in the overall assessment and the weight to be attached to it depends on the other factors.  This serves to remind us that Lord Nicholls’ list of ten factors should not be applied rigidly as if they are hurdles to be crossed and the list is not exhaustive.  Lord Brown put forward an additional factor in Flood which, as discussed below, is also relevant in the present case: the effect of an article in encouraging speedy and thorough investigation in a matter of public importance. 

48.  Fourth, on the meanings of an article, it was held in Bonnick v Morris [2003] 1 AC 300 that in the context of Reynolds defence, the single-meaning rule is not applicable.  In Flood, Lord Phillips reiterated that a responsible journalist should have regard to the full range of meanings that a reasonable reader might attribute to it in exercising his judgment on publication, see paragraph 51.  This might be going further than what Lord Nicholls had said at paragraphs 24 and 25 in Bonnick v Morris, supra[8].  However we do not see any reason why in principle Lord Phillips’ approach should not be adopted so long as the obviousness of a meaning, the failure to verify that particular meaning and the reason for such failure are all taken into account in the overall assessment.

E. The subject matter of the Article and public importance 

49.  Turning to the application of the law to the present case and the submissions of counsel in this appeal, we shall first address the question relating to the public importance of the subject matter discussed in the Article.  As mentioned, it was common ground at the court below that the subject matter was of public concern at the time when the Article was published.  On appeal, Mr Pow contended that the fact that the material was of public interest does not allow a newspaper to drag in damaging allegations which serve no public purpose.  He relied on Jameel (Mohammed) v Wall Street Journal Europe Sprl [2007] 1 AC 359 paragraph 51 and submitted that the inclusion of the defamatory statement had to be shown to be justifiable.  In that paragraph, Lord Hoffmann had this to say:

“ [The statement] must be part of the story. And the more serious the allegation, the more important it is that it should make a real contribution to the public interest element in the article. But whereas the question of whether the story as a whole was a matter of public interest must be decided by the judge without regard to what the editor’s view may have been, the question whether the defamatory statement should have been included is often a matter of how the story should have been presented. And on that question, allowance must be made for the editorial judgment. If the article as a whole is in the public interest, opinions may reasonably differ over which details are needed to convey the general message. The fact that the judge, with the advantage of leisure and hindsight, might have made a different editorial decision should not destroy the defence. That would make the publication of articles which are, ex hypothesi, in the public interest, too risky and would discourage investigative reporting.”

50.  On the facts of the present case, Mr Pow submitted that as the allegation of “前言不對後語” was a personal opinion of the author of the Article instead of an editorial committee of Ming Pao (“社評會”) and it was a conclusion drawn without proper verification, given the imputation of this statement against the Plaintiff targeting him personally, it had no real contribution to the public interest to include it in the Article.

51.  It is not clear to us whether this argument was advanced before the Judge.  There was no reference to it in the judgment.  In any event, with great respect, we cannot accept this submission.  In Jameel, supra, Baroness Hale formulated the relevant test at paragraph 147 as follows:

“ there must be a real public interest in communicating and receiving the information” and “in having it in the public domain”; but “less than a test of what the public ‘need to know’, which would be far too limited”.

Such formulation was specifically endorsed by Lord Phillips in Flood at paragraph 42 and Lord Mance at paragraph 126.

52.  The subject matter of the Article revolved around the proper investigation into the game of 31 March 2009 and one of the themes was the inadequacy in the investigation by the HKFA and its poor handling in the midst of public concern.  Given the unique role of HKFA in the development of professional football in Hong Kong and its management of the league games, these were plainly matters of legitimate public interest.  As Mr Wong submitted, the Plaintiff was questioned by the press in the whole episode in his capacity as the vice-chairman of HKFA and it involved the Plaintiff’s discharge of his duty in a public capacity rather than matters of his private affairs.  Against such light, we are of the firm view that the inclusion of the reference to the Plaintiff and his responses to the questions from the media at different stages was part of the story.

53.  Further, reading the Article as a whole, its primary message was an appeal to the ICAC to conduct a thorough investigation over the matter, thus the sub-headline “3球員前言不對後語 廉署應查個水落石出”.  This aim must be taken into account in assessing whether the references to the responses of the Plaintiff at different stages should legitimately be part of the story.  Naturally, it could be expected that a journalist would wish to explain why he regarded the inquiry by the HKFA as inadequate in the Article.  And one of the reasons why the inquiry by the HKFA could not be regarded as adequate was the Plaintiff’s different responses at different stages which, in the view of the author of the Article, tarnished public confidence in those in charge of the inquiry by the HKFA.    

54.  As regards the characterisation to the Plaintiff’s responses as indicative of “與普高保持距離，其間情況耐人尋味”, “甚為蹺蹊” or even “前言不對後語”, subject to the question of verification which we shall discuss below, in our view they were within the realm of editorial judgment of the author of the Article to which the observations of Lord Hoffmann in Jameel and Lord Mance in Flood on respect for such judgment are applicable. 

55.  We shall have to discuss further on the meanings of the words as found by the jury.  At this juncture, we can simply say that in the context of this Article against the prevailing circumstances when it was published, the meanings as found by the jury are legitimately part of the story. 

56.  As discussed earlier, the latest authorities emphasised that an overall assessment should be made in reaching the conclusion on the public interest defence.  We shall now turn to the crucial questions in this appeal: whether the Judge erred in his application of the law in the present context.  In so doing, we bear in mind what we said at paragraph 32 above on the approach that this court should adopt.

F. The meaning of the words

57.  The meaning of the Article is a relevant consideration in the overall assessment of the public interest defence.  In Lord Nicholl’s non-exhaustive list of matters set out at Reynold, supra p.205, the first item is the seriousness of the allegation.  His Lordship explained:

“ The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.”

58.  Mr Wong submitted that the Judge erred in paragraph 45 of his judgment when he said that the Article “suggested and suspected Mr Pui’s involvement in the match-fixing of the Match.”

59.  On the other hand, Mr Pow submitted that the Judge correctly identified the stings of the Article and it was a summation of the finding of the defamatory meanings of the Article by the jury.  Mr Pow derived from the jury’s verdict on defamatory meanings four stings:

(a) That the Plaintiff gave contradictory versions about his “knowledge of and connection with” Progoal;

(b) That the Plaintiff deliberately hid his “knowledge of and connection with” Progoal;

(c) That the Plaintiff did so with a view to distancing himself from the incident of match-fixing; and

(d) That the Plaintiff acted suspiciously.

60.  With respect to the Judge, he must have overlooked the jury’s specific rejection of meaning (3) as pleaded by the Plaintiff.  At paragraph 7(3) of the Statement of Claim, it was alleged that one of the defamatory meanings of the Article was that “there are reasonable grounds to suspect the Plaintiff of being involved in the illegal activities of match-fixing and ICAC should launch an investigation against the Plaintiff”.  The jury was specifically asked to consider all the pleaded meanings in paragraph 7 and in the end they only found the meanings in paragraphs 7(1) and (2) established. Thus, the jury did not find the Article to carry any imputation against the Plaintiff in respect of his involvement in match-fixing. 

61.  Though the single meaning rule is not applicable in the context of the Reynold defence (the Bonnick v Morris approach), the Judge did not advert to that at paragraph 45 in his judgment when he considered the seriousness of the allegations.  In light of the specific rejection of paragraph 7(3) meaning by the jury, if the Judge were to explore a similar meaning by way of an alternative meaning within the full range of meanings that a reasonable reader might attribute to the Article, we expect the Judge would have set out his reasons for coming to that view in his judgment.  He had not done so.  Actually, he stated quite specifically that he was referring to the defamatory statements as found by the jury in the preceding sentence in the same paragraph. 

62.  We do not accept Mr Pow’s attempt to account for the Judge’s view on the seriousness of the allegations.  We agree with Mr Wong that it is not the right approach to re-cast the findings of the jury on meanings into four stings as if they were disconnected components.  This can be illustrated by reference to the fourth sting.  Read in isolation and given that it was in the context of the Article, it may well lead to an impression that the Plaintiff acted suspiciously, not only in respect of the differences in his responses on different dates, but also generally in respect of all the suspicious activities concerning the game.  But this is not the finding of the jury. 

63.  We reject Mr Pow’s argument that the Judge’s characterization of the allegations was summation of the findings by the jury.

64.  Counsel did not address us on the extent to which a judge is bound by the findings of the jury on meanings in reaching his determination on the public interest defence and the inter-relationship between the findings of the jury on meanings and the Bonnick v Morris approach. The case was simply argued before us on the basis that the Judge was either correct or incorrect in applying the public interest defence to the meanings as found by the jury.  We shall determine this appeal accordingly.

65.  In our judgment, the Judge had applied the public interest defence by reference to a meaning not attributable to the Article by the jury and it is an error which tainted his determination.  On this ground alone, this court must set aside his determination and consider the public interest defence afresh.  It will be seen shortly, there are other grounds too.

66.  As we said, Mr Pow did not submit before us that there was an alternative meaning for the purpose of the Bonnick v Morris approach that this court should consider.  We therefore confine ourselves to the defamatory meanings as found by the jury in assessing the seriousness of the allegations in the Article.

67.  In the overall assessment in the public interest defence, the defamatory meanings must be considered in the context of the Article as a whole when the court weighs the seriousness of the allegations. Further, on the facts of the present case, we are of the view that one must have regard to the undisputed fact that the Plaintiff did give more information concerning his knowledge and connection with Progoal at later stages. 

68.  Mr Pow however submitted that the allegations were still serious.  That submission was advanced against the backdrop of what Mr Pow regarded as findings by the jury that the Plaintiff did not give contradictory versions about his knowledge of and connection with Progoal.

69.  It is necessary to consider the verdict of the jury more carefully.  As we said, there cannot be any dispute (and Mr Pow properly accepted) that the Plaintiff did give more information at different stages.  He was specifically asked by Mr Ku, the reporter of Ming Pao, about such differences at the phone conversation on 9 April and his answer was that he had forgotten momentarily.  Whether the answers were contradictory versions and whether the Plaintiff behaved suspiciously are essentially matters of opinion.  The jury was directed to reject the defences of justification and fair comments if they considered the Lucas Box meanings to be less serious (as they obviously are).  The jury’s verdicts were non-speaking (as they did not need to give reasons for their verdicts).  We do not think it is possible for this court to decipher why the jury considered the meanings they found to be defamatory.  In light of the direction on justification and fair comments, the jury could simply hold that an allegation of someone giving contradictory versions to the press is generally defamatory (without any need to consider the truth of the allegation given the rejection of the defence of justification in accordance with the approach directed by the Judge).  Alternatively, the jury might have found the two meanings defamatory as the Plaintiff did not act suspiciously due to the explanation that he had momentarily forgotten about it and his omission to give the information (which he subsequently revealed) on 6 April was not deliberate. 

70.  Without any imputation of the Plaintiff being involved in match-fixing (as found by the jury), at the highest the allegations against the Plaintiff was that he acted suspiciously and maintained a distance from Progoal.  Further, the Article itself did not allege any wrongdoing on the part of the Plaintiff.  As we said, it only urged the ICAC to investigate thoroughly.  In the context of the facts of this case, even having regard to the matters pinpointed by the Judge at paragraphs 45(1) to (3),we do not regard these as serious allegations.

G. Responsible journalism

71.  At paragraph 48 of the judgment, the Judge considered the extent of verification of the source of information.  The author of the Article relied on the report of Ming Pao as to what was said by the Plaintiff on 6 April.  The Judge took the view that as the lynchpin of the allegation that the Plaintiff hid information and gave contradictory answers later was his failure to give answers on 6 April, the author should also check the report of the other newspapers for verification.  As found by the jury in the special verdict, he did not do so.

72.  Mr Wong submitted the Judge erred in failing to recognize that the real lynchpin was more specific: the Plaintiff’s non-disclosure of the identity of the person who financed Progoal as its boss. Even if one were to consider the information reported in other newspapers, there was no such disclosure on 6 April.  However, a few days later, the Plaintiff disclosed the sources of funding for Progoal included: (1) Yin King Beer company; (2) Yam Wai Hung; and (3) a Hong Kong businessman trading in German products under the brand name “Schmetz”.  He also gave further details on the history and background of Progoal. 

73.  Mr Pow submitted that in view of the findings of the jury as to the defamatory meanings (which encompassed the Plaintiff’s “knowledge of and connection with” Progoal) and the actual wordings in the Article (referring to “普高的「身世」和資金來源”), the lynchpin could not be as narrow as suggested by Mr Wong. 

74.  We do not find the debate on the real lynchpin to be important.  In our judgment, the real issue is whether Ming Pao has discharged its duty of responsible journalism on the facts of the present case.  In considering the duty to verify, we agree with Mr Wong that there was no reason why Ming Pao could not rely on the veracity of the report prepared by its own reporter who was present at the press conference of 6 April.  With respect, it is a red herring to consider the reports of the other newspapers.  Ming Pao had no means to vouch for the veracity of those other reports.  Further, even if those other reports were checked, they would not give a verbatim report of everything said on that occasion.  There is always room for possible misunderstanding or omissions in such reports.  

75.  Before Ming Pao is held to have failed in taking steps to further verify the report of its own reporter, one must consider whether there was anything which prompted the need for further verification.  The relevant consideration was the comparison of what was said by the Plaintiff on 6 April and the information subsequently revealed by him. Obviously, those in Ming Pao had read the report of Sing Tao on 8 and 9 April. In view of the clear difference between what had been said by the Plaintiff on 6 April and in the information he gave later, we do not see any basis to require the author of the Article to refer to other reports on 6 April before concluding that there was something which called for explanation. 

76.  And the reporter had taken the step to phone the Plaintiff about the discrepancies.  In that conversation, there was no denial by the Plaintiff that he had given more information since 6 April.  His explanation was momentary forgetfulness.  This was set out in the related report at A4.    

77.  Mr Pow referred us to parts of the evidence of the author of the Article to support the Judge’s conclusion that Ming Pao should have checked other newspaper.  We do not find such evidence to be of much relevance.  The evidence was extracted by way of a particular line of cross-examination without putting forward a proper overall view of the matter in the way we did above.  

78.  In our judgment, on the facts of the present case and in light of the above, the Judge erred in taking irrelevant matter into consideration when he found that Ming Pao should have cross-checked with other newspaper reports on the answers given by the Plaintiff on 6 April. 

79.  The Judge did not give weight to the efforts of the reporter to seek explanation from the Plaintiff and the publication of his explanation at A4 as it was not mentioned in the Article itself and the explanation was not fairly brought to the attention of the readers, see paragraph 57 of his judgment.  With respect, we beg to differ.  The cross-reference to A4, in our view, is sufficient to lead whoever interested in the matter to read the report at A4 and that had adequately set out the Plaintiff’s explanation. In other words, the Judge failed to take relevant consideration into account in the overall assessment of whether Ming Pao had complied with the standard of responsible journalism in the context of the public interest defence. 

80.  The Judge also held against Ming Pao in terms of the lack of urgency, see paragraph 49.  In so holding, the Judge failed to have regard to the primary message of appealing to the ICAC to conduct a thorough investigation.  Progoal submitted its internal report to the HKFA on 9 April and the Plaintiff indicated that the report was acceptable to HKFA.  The relevant players apparently changed their stances and if there were to be investigation, it had to be done promptly.  Against that background, bearing in mind the purpose of the Article was to urge the ICAC to conduct proper investigation in order to foster public confidence in professional football in Hong Kong, we cannot agree with the Judge in this respect.

81.  For these reasons, we must set aside the Judge’s determination on the public interest defence.  It therefore falls upon us to decide whether Ming Pao has discharged the burden of establishing such defence.

82.  We have already discussed the public importance of not only the subject matter but also the inclusion of the defamatory statements in the Article.  We have also addressed the seriousness of the allegations, the efforts to verify and the contents as published in the Article, including the cross reference to the explanation by the Plaintiff, and the timing of its publication.  

83.  The tone of the Article is also relevant.  Mr Pow placed considerable emphasis on the unfairness to the Plaintiff as the Article ascribed to him a deliberate intent to distance from Progoal and to hide his knowledge of or connection with it.  We can understand the dismay of the Plaintiff.  However, one must bear in mind what had been discussed in Sections D and E above.  In view of the fact that the Article did not advance any allegation of wrongdoing against him, and its purpose was to urge the ICAC to conduct thorough investigation in a matter of general public importance, and the Plaintiff was given a fair opportunity to explain his different statements at different stages, though the tone of the Article could be regarded as aggressive or even provocative, we are of the firm view that Ming Pao has established a defence of public interest in the present case and the choice of wordings and presentation of materials was within the editorial judgment in the context of responsible journalism.

H. Disposition

84.  We allow the appeal, set aside the order of the Judge and dismiss the Plaintiff’s claim.

85.  We also order the Plaintiff to pay the Defendants’ costs here and below. 

I. Postscript

86.  By way of postscript, as we were told that this was the first case in Hong Kong in which the Reynolds defence was tried before a judge and jury, in view of our experience in this appeal, we are minded to make some observations on trial by judge with jury when a public interest defence is raised. 

87.  In England, the presumption in favour of jury trial in defamation cases had been abolished and nowadays trial with jury in defamation cases in England has become the exception rather than the rule, see section 11 of the Defamation Act 2013 and the recent case of Tim Yeo MP v Times Newspapers [2014] EWHC 2853 (QB).  Even before that statutory change, there were already judicial statements leaning against trial with jury in defamation cases, see Cook v Telegraph Media Group Ltd [2011] EWHC 763 (QB); Thornton v Telegraph Media Group Limited  [2011] EWCA Civ 748.

88.  In Hong Kong, we do not have the same statutory change of the rules.  The position is still governed by Section 33A of the High Court Ordinance, subsection (1)(a) of which stipulates that in a case where there is a defamation claim, the action shall be tried with a jury unless the court is of the opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.  At the same time s33A(4) provides that the court can order different questions of fact be tried by different modes and subsection (1) shall not affect that power.

89.  In the context of Reynolds defence, even before the 2013 Act, the English Court of Appeal upheld the decision of Morland J in ordering apart from the meanings of the words, the other issues would be tried by the judge alone in Gregson v Channel Four Television Corporation [2002] EWCA 941[9].  What was said in the following paragraphs in the judgment of Waller LJ are pertinent to what we shall say below:

“ 19. On the more powerful point that the journalists understandably wish their good name and integrity to be vindicated by a jury, the judge pointed out how in a Reynolds qualified privilege case, the question of malice is intertwined with the question of responsible journalism, and it was in that context that the judge said:

“ In my judgment the factor which militates most strongly in favour of trial by judge alone is the number of primary detailed facts still in dispute on which the jury would have to be asked to make unanimous findings. The claimants have lodged 12 proposed questions and the defendants have lodged 48 proposed questions . . . ”

He recognised that in the alternative to their 48 proposed questions the defendant had proposed a short form of jury questions but he took the view that the form of those questions were wholly inappropriate.  Mr Browne challenged the judge’s view of the short form question before us in the context of the point to which I should now turn.

20. Before us Mr Browne sought to take a further point, not taken before the judge, and taken for the first time in the grounds of appeal.  This point at one stage gave me some cause for concern.  Mr Browne suggested that, particularly in the context of the jury’s verdict on meaning, Morland J who had previously expressed a view on meaning, was not the most appropriate tribunal of fact to decide relevant facts on the Reynolds qualified privilege aspect.  The argument was in essence:

(1) the jury’s verdict shows that they did not take the view that the meaning was as serious as the judge had expressed himself as thinking it was,

(2) on Reynolds privilege the question which would ultimately arise would relate to whether the journalists had acted responsibly or with reasonable skill and care;

(3) that factual issue should as far as possible be left to a tribunal who had not expressed an adverse view as to meaning because an adverse view as to meaning might colour that tribunal’s view as to whether the journalists were acting responsibly.

21. During argument in relation to this point, it appeared that there was a divergence of view between counsel as to exactly what questions would be put to the jury if a jury were to try the case including the Reynolds privilege issue.  Reynolds contemplates as per the speech of Lord Nicholls (see above) facts being found by the jury, and the ultimate balancing exercise being carried out by the judge.  Mr Browne was seeking to argue that a question such as “Did the defendant act responsibly in broadcasting the programme including the parts that related to the action of the claimant?”, was an appropriate question for the jury.  It is that question that the judge thought was wholly inappropriate expressing the view “that that question would transfer from the judge to the jury the very question that the law requires a judge to decide”.  I am inclined to think that the judge was right in the view that he expressed, but it is unnecessary to explore the point further because the very fact that there is a debate as to what questions should be put to the jury when Reynolds privilege is in issue, would be a further factor in favour of exercising a discretion that this case was more appropriate to be tried by a judge alone.  The intertwining of the role of the judge and jury (if there is one) without an absolutely clear demarcation line would itself favour exercising a discretion in the way that the judge did.”

90.  Since the operation of the public interest defence in a trial by a judge with a jury and the respective role of judge and jury in such a trial have not been fully canvassed before us, we shall not reach any definitive conclusion in this judgment.  However, it is fair to observe that these are not easy questions and such a trial can bring about real difficulties in the application of the law to the facts.  As observed by Gatley on Libel and Slander 12^th Edn paragraph 15.22, very often some disputed issues of fact may lie at the heart of the running of the defence. Though specific questions of fact might be put before the jury with the agreement of counsel, as the jury does not have to give reason for their verdicts, there could be scope for argument on the implications stemming from a particular verdict which could probably be avoided if there is a reasoned judgment.  And this highlights a major disadvantage of a trial with jury, that is, the absence of a reasoned judgment. 

91.  In Reynolds, Lord Nicholls explained the rationale for reserving this defence for the determination by a judge:

“ A balancing operation is better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law will be built up.”

92.  With the courts gaining experience in relation to the practical application of this defence and the recognition that ultimately the balance should be struck by an overall assessment, it has come to be appreciated that in some cases the process of fact finding could so intertwined with the proper evaluation of the matters pertaining to public interest that it may not always be satisfactory to circumscribe a judge’s overall assessment by some special verdicts of the jury in a pre-set list of questions prepared by counsel without the benefit of the reasoning process behind such verdicts. Also, there could well be situations where the judge could legitimately take a different view as to what are the relevant facts in the course of deliberation from those set out in the list of questions. 

93.  We shall not attempt to provide any solution to these issues in this judgment.  If necessary, the matter would have to be left for future decision.