PAUL KI PING KI AND ANOTEHR v. ORIENTAL DAILY PUBLISHER LTD. AND OTHERS

HCA 9748/95

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL JURISDICTION

ACTION NO. 9748 OF 1995

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R U L I N G

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1. The Plaintiff instituted proceedings in his personal name (the 1st Plaintiff) and again in his name trading as Hong Kong Washington Company (the 2nd Plaintiff) against the six defendants in defamation. The 1st to 5th Defendants are the publisher, editor and reporters of Oriental Daily News. The 5th Defendant has not entered appearance nor has any affirmation of service of the writ been filed. He is therefore not a party to this hearing. The 6th Defendant is a reporter of Eastweek Magazine which was a magazine published by a separate company associated with Oriental Daily News.

2. The 2nd Plaintiff put up an advertisement on 7.9.95 in the Apple Daily News for sale of land in Iowa in the USA in commemoration of visits by extra terrestrial beings. The land was to be sold in lots of one square inch at a price of HK$100 per lot. The advertisement invited buyers to send cheques to an address in an industrial building in Tuen Mun and provided a telephone number and fax number. Reporters of Oriental Daily News felt suspicious about the advertisement. They telephoned the telephone number advertised during office hours; but for two days, no one answered. The 4th and 5th Defendants visited the address of the 2nd Plaintiff and found no one there. There was no signboard in the name of Hong Kong Washington Company either in the lobby or outside the advertised premises. The premises was locked from outside by a padlock and apparently there was no sign of any activities inside. The entrance was obstructed by miscellaneous items, including a basket of old mail, placed between the iron grill and the wooden door. The 4th Defendant made some inquiries from the proprietor of a neighbouring metal factory and from the caretaker. They said that the premises used to be the office of a trading company which had ceased operation four or five years ago and the owner seldom visited the premises. The 5th Defendant took some photographs of the premises while the 4th Defendant reported her inquiries to her superior, the 3rd Defendant.

3. The 3rd Defendant then wrote a feature article incorporating the inquiries made by the 4th Defendant, photographs taken by the 5th Defendant and the research of his other colleagues that for the last ten years there had been no report of sighting unidentified flying objects in Iowa. He also incorporated comments from two leading property agents to the effect that the price of HK$100 per square inch was excessive. The article, which was published on 9.9.95, suggested that the 2nd Plaintiff was a terminated company and the land sale scheme was deceptive. The Plaintiffs complained that the article was defamatory.

4. The 6th Defendant embarked on a separate exercise on behalf of Eastweek magazine. She could not reach the Plaintiffs on the phone during office hours but managed to reach the 1st Plaintiff at night. She then met him between 8 and 9 pm on 8.9.95. Actually, an hour or so before that, the 3rd Defendant had sent his draft article to the printing department for printing.

5. I consider the 1st Plaintiff's claim as being duplicious. Whatever damages he suffered personally would be recoverable under the claim of the 2nd Plaintiff. To make two separate claims using different names is confusing and unjustified. I therefore strike out the 1st Plaintiff's claim with cost on indemnity basis.

6. The jury unanimously found for the 6th Defendant. The Plaintiff knew full well that the 6th Defendant was not a member of Oriental Daily News which published the defamatory article. The article does not contain any information he disclosed to the 6th Defendant during the interview. The finding of the jury is fully supported by the evidence and is unanimous. According to the Plaintiff, he sued her simply because she had interviewed him. There is absolutely no reason why he should have joined the 6th Defendant in these proceedings. His decision to sue her is so unreasonable and bizarre as to amount to malice. I think the 6th Defendant should be fully compensated for her costs. Accordingly I dismiss the Plaintiff's action against the 6th Defendant with costs on indemnity basis.

7. The jury by a mere majority found for the 2nd Plaintiff against the 1st to 4th Defendants and awarded him $1 nominal damages. For defamation, where the jury awards only nominal damages, the usual practice is for the judge to make no order as to costs: see Martin v. Benson, [1927] K.B. 771; and Pamplin v. Express Newspapers, [1988] 1 W.L.R. 116.

8. Whether to award costs to a plaintiff or whether to deprive a successful plaintiff of his costs is solely within my discretion to be exercised in accordance with legal principles. I am entitled to have regard to the Plaintiff's conduct in the course of this litigation as well as to his conduct which was a contributory cause of the action. The Plaintiff put up a dubious advertisement, purporting to sell land in commemoration of visit by extra terrestrials at a grossly inflated price aimed at netting $380 million from the public. It was placed in one of the most popular local newspapers and was significantly advertised. It attracted public attention. I have ruled as a matter of law that as such the advertisement is a matter for fair comment. There was no reporting of any sighting of unidentified flying objects over Iowa in the last ten years prior to the advertisement. The condition of his office was such as to raise doubts in the mind of a reasonable man whether it was a company doing genuine business. The scheme itself was dubious including its suspicious form of conveyancing procedure. The sale was aimed at netting $380 million for land worth only $780, for personal gain and was not for charity. It is doubtful whether the land has any commemorative value. What the Plaintiff advertised must invite comments of this kind. It was unfortunate that the jury found for the Plaintiff. However, it is fair to say that his advertisement invites comments and criticism. It is obvious that the jury found that he did not suffer any real loss and/or his conduct was spiteful. Having considered all the circumstances, I find that the Plaintiff brought litigation upon himself and instituted legal action when he should not have done. I consider the usual rule not to award costs where a plaintiff was only awarded nominal damages should apply. Accordingly, I make no order as to costs as between the Plaintiff and the 1st to 4th Defendants.

9. The result of my three costs orders would mean that the Plaintiff cannot recover his costs in respect of jury expenses. This is justified in view of the nominal damages that he was awarded and the fact that it was his choice to have the trial before a jury. For avoidance of doubt, I make this further costs order that he shall bear the costs of the jury expenses.