KAM LAN KOON AND OTHERS v. TONG CUN MING

HCA 336/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 336 OF 2012

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D E C I S I O N

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I. INTRODUCTION

1. On 1 March 2012, Kam Lan Koon (“Koon”), the chairman and four other councillors (being also the “five chairpersons, “P2” and “P3, P4, P5 and P6”) of the Koon’s council of management commenced the present action against the defendant (“D”) for damages for libel and consequential injunctive relief.  The D was a real estate merchant/ developer, and at one time an honorary chairman of the Koon.  The D claimed to be also a member of the Koon.  P2 passed away on 24 March 2014.  For the sake of convenience, I shall refer to the Koon, P3, P4, P5 and P6 collectively as the “Ps”.

2. The Ps claimed that on/about 3 July 2011 the D maliciously published false and defamatory materials against them by causing certain words (“Words”) to be printed on a paper notice (“Notice”).  The Notice was laminated and posted onto a board erected against/behind a wired fence on property belonging to Realray Investments Limited (“Realray”) at the side of a footpath leading to the temple of the Koon, so any passerby could read the contents of the Notice.  The Ps claimed that members of the Koon, members of the public, visitors to the Koon and others would have seen, and many of them did see, the contents of the Notice.

3. On 23 September 2011, the Koon wrote to Realray to protest against the Notice.  On 13 October 2011, Realray and/or the D removed the Notice, and Realray replied to the Koon that they did not permit the D to put up any Notice on their property.  Although the D denied liability, the Ps claimed he admitted responsibility for publication of the Notice on Realray’s land.

4. By reason of P2’s death, his cause of action against the D abated.  At the 1^st case management conference before me on 8 July 2014 (“1^st CMC”), counsel for P2 confirmed that P2’s estate had no claim for costs against the D, and Mr Chain, counsel for the D, confirmed that if in future the D would apply to court to seek costs in respect of the present action against P2’s estate, the D would join P2’s estate as a party to the proceedings for such purpose.  On such basis, P2 had no further role in the present action for the purpose of the trial of the present action.

5. The Words on the Notice were as follows:

“假乩。五主席以假乩治壇，包裹著宗教慈善的外依，實則鼓吹迷信，蠱惑人心，類似歷史上的: 義和團、一貫道，害人匪淺。本人生性好打不平，年初向法庭申請改善管理命令並删除五主席。最近再向法庭申請暫委令，由長老許嘉章暫時接掌監管。目前官司正在進行中，是非黑白自有公斷，真相終會大白，因為「人可欺、天不可欺。」戮小人為人為己 偽君子多難多嗟 湯君明 二零一一年七月三日”

“False Planchette Writing.  The 5 Chairpersons used false planchette writing to manage the Koon.  Clothed in outer garments which depict religion charity, what they did in reality was to propagate superstition and deceive people, similar to what the Boxers and Yiguando had done in history.  These people caused great harm to mankind.  I was born with a disposition to right injustice.  At the beginning of the year I applied to the court for an order for better administration and for removal of the 5 Chairpersons.  Recently I further applied to the court for an order to appoint, as an interim measure, Elder Hui Ka Cheung [transliteration of 許嘉章] to take over and manage [the Koon’s business] for the time being.  The legal action is currently in progress.  There shall be a fair determination of who is right and who is wrong, what is white and what is black.  Eventually the truth will be fully revealed, because “Human beings can be cheated but Heaven (God) cannot be cheated”.

Wipe out the bad people for the sake of yourself and all Hypocrites will regret and lament

Tong Cun Ming  3 July 2011” (English translation)

6. The D denied liability, and raised various defences, including truth and justification, fair comment, qualified privilege, and reasonableness in putting up the Notice.

II.  RE-AMENDMENT OF PLEADINGS AND EXPERT EVIDENCE?

(a)  Summons

7. On 4 July 2014, the Ps filed a summons seeking inter alia the following reliefs (“Summons”):

(a) leave be granted for the parties to file and serve the Re‑Amended Statement of Claim, Re-Amended Defence and Re-Amended Reply in the manner marked in green as per the copies attached thereto (“Draft RASoC”, “Draft RAD” and “Draft RAR”);

(b) leave for the parties to file/exchange supplemental witness statements in respect of the matters introduced by the aforesaid re-amendments to the pleadings within 42 days;

(c) leave for the Ps to adduce the evidence of P2 contained in his witness statement without calling the maker (by reason of his death);

(d) liberty to the Ps to file/serve on the D expert evidence of Professor Lai Chi Tim (a professor in Taoist studies at The Chinese University of Hong Kong, “Prof Lai”) in relation to the Boxers and Yiguando within 28 days, such expert evidence to be tendered and adduced at trial without calling the expert;

(e) liberty to the D either to agree to the expert evidence of Prof Lai or to make appropriate application in relation thereto within 42 days of service on him of the Ps’ expert evidence.

8. On 7 July 2014, the Ps filed the affirmation of their solicitor Kam Chi Yuen in support of the Summons.  Such affirmation exhibited Prof Lai’s curriculum vitae, and stated that Prof Lai’s expert evidence about the Boxers and Yiguando would cover “their historical activities, their having been outlawed, final destiny and what had become of them since the late Qing Dynasty”.  The need for expert evidence was explained as follows:

“4. Evidence of factual knowledge by witnesses for [the Ps] about [the Boxers] and [Yiguando] is already present amongst the witness-statements already filed for [the Ps]. Such evidence about knowledge of [the Boxers] and [Yiguando] are from witnesses of facts. In the event that their knowledge are not accurate or, in the worst case, misconceived, the cause of action based on true innuendo may not stand and the Court cannot simply rely on evidence from such factual witnesses alone to arrive at decision in regard to the cause of true innuendo. Evidence from somebody who is knowledge about [the Boxers] and [Yiguando] is thus necessary.

5. Evidence from such person with expert knowledge about [the Boxers] and [Yiguando] is no different from evidence of others who stand as factual evidence if his evidence is filed in the form of affidavit evidence of fact, which does not require direction from the Court.  I am referring to Order 38 rule 36(2) in so saying.  On the other hand, if evidence from such a person is to be received and relied on because of his expert knowledge on [the Boxers] and [Yiguangdo], his evidence stand out from those of a factual witness.  His evidence is that of an expert.  On that basis, I verily believe that the most appropriate way to adduce the evidence of [Prof Lai] in regard to [the Boxers] and [Yuguando] is by way of expert evidence.”

9. At the hearing of the Summons on 8 July 2014 returnable at the same time as the 1^st CMC, various issues arose over the Draft RASoC and Draft RAD.  Both Mr Kwok, counsel for the Ps, and Mr Chain wished to re-consider and perhaps revise the draft pleadings, so the Summons was adjourned to be heard on 23 September 2014 (“Hearing”) together with a second case management conference (“2^nd CMC”).  I also granted directions for the parties to lodge their respective revised draft re‑amended pleadings on or before 15 September 2014, and their brief written submissions for the 2^nd CMC on or before 17 September 2014.

(b)  Latest draft re-amended pleadings

10. On 16 September 2014, the Ps lodged a new set of case management conference (“CMC”) bundle which included a revised Draft RASoC (“2^nd Draft RASoC”) with changes made to paragraphs 18 and 18A thereof.  On the same day, Mr Kwok and Mr Chain lodged their respective written submissions.  It appeared that Mr Chain was unaware of the 2^nd Draft RASoC.  Subsequently, Mr Kwok further revised the 2^nd Draft RASoC (“3^rd Draft RASoC”) and lodged his “updated” written submissions, but made no changes to the Draft RAR.  On 19 September 2014, Mr Chain lodged the D’s revisions to paragraphs 22A ad 23A of the Draft RAD (“2^nd Draft RAD”).  On 22 September 2014, Mr Chain lodged his supplemental written submissions.

11. By Mr Kwok’s “updated” written submissions, the Ps sought inter alia the following reliefs in place and stead of those sought under the Summons :

(a) leave for the Ps to re-amend the Amended Statement of Claim and the Amended Reply in the manner marked in green as per the 3^rd Draft RASoC and Draft RAR;

(b) leave to the D to re-amend the Amended Defence in the manner marked in green as per the 2^nd Draft RAD;

(c) leave for the Ps to file and serve expert report “in regard to [the Boxers and Yiguando] within 42 days, and [the D] to file and serve expert report in regard to [the Boxers and Yiguando] in counter within 42 days thereafter, if thought fit”;

(d) leave for “the experts for the parties to reduce their opinion evidence in joint conference to be held and to file a joint report if thought fit within 21 days from the date of serving of [the D’s] expert report in counter, failing which, such experts to attend trial”;

(e) leave for parties to “amend and where necessary to supplement witness statements in regard to [the Boxers and Yiguando]”.

12. At the Hearing, Mr Kwok advised that the Ps had no objection to the 2^nd Draft RAD.  Mr Chain advised that save and except for paragraph 18A(2) of the 3^rd Draft RASoC, the D had no objection in principle to the proposed re-amendments in the 3^rd Draft RASoC.  The disputed re-amendments in paragraph 18A(2) of the 3^rd Draft RASoC concerned a new plea of true/legal innuendo (“Disputed Plea”), which Mr Chain claimed was embarrassing in its present form.  He further argued that if the Ps were not entitled to introduce the Disputed Plea, there would be no basis to obtain/adduce the proposed expert evidence.

(c)  Cause of action based on natural and ordinary meaning

13. In paragraph 18 of the 3^rd Draft RASoC, the Ps averred that “五主席以假乩治壇，包裹著宗教慈善的外衣，實則鼓吹迷信，蠱惑人心，類似歷史上的: 義和團、一貫道，害人匪淺。” of the Words in the Notice (“Impugned Words”) in their natural and/or referential meanings were defamatory of them in the manner set out in paragraph 18A(1) of the 3^rd Draft RASoC.  This set out the “1^st group of Causes of Action” which relied on the defamatory meaning of the Impugned Words in “their natural and ordinary meanings and/or by way of false innuendo”.

(d)  Disputed Plea

14. The Disputed Plea in paragraph 18A(2) of the 3^rd Draft RASoC pleaded a cause of action based on true/legal innuendo:

“2^nd group of Causes of Action

(2) Further and/or in the alternative, if the words “五主席以假乩治壇，包裹著宗教慈善的外衣，實則鼓吹迷信，蠱惑人心，類似歷史上的: 義和團、一貫道，害人匪淺。” are not within the general knowledge of the community or not defamatory of [the Ps] in their natural and ordinary meaning, the same together with the following extrinsic facts and matters which are known to [the Ps], visitors and the Koon’s members as set out in the List hereof, or any of them, are defamatory of [the Ps] by way of true innuendo, and mean and/or understood to mean that [P1 to P6’s] activities were similar and comparable to those of the Boxers and [Yiquando] in history in that, in like manner as the Boxers and [Yiquando] in history, they

(a) promote and propagate superstition;

(b) delude and deceive people;

(c) cause great harm to mankind; and

(d) operate and are part of or parties to an evil cult which ought to be outlawed and abolished.

Particulars of extrinsic facts and matters relied on

(i) The Koon is managed chiefly by the [P2 to P6]. Planchette or spiritual writings are among the major activities of the Koon.

(ii) The Boxers (義和團) in the Manchuria Qing Dynasty was a cult notorious for being anti-foreigners and anti-Christianity. It has among its activities, weird rituals such as “神打” which boasted of spiritual protection of the human body, making the body invincible to knives and firearms. Such activities of the Boxers made it appear mysterious and superstitious. In Chinese history, the Boxers had massacred a number of foreign preachers, missioners, followers and believers of the Christian Churches. The Boxers were known to have killed over twenty thousand lives and was declared an evil cult and outlawed;

(iii)[Yiquando] (一貫道) in modern Chinese history was a cult during the Anti-Japanese War between the 1930s and 1940s. The cult was notorious for revolting against the Nationalist Government (國民政府) of the Republic of China and the Central People’s Government and was known to have promoted superstition amongst its followers. The cult was declared an evil cult and was outlawed by both the Nationalist Government and the People’s Republic of China;

List

陳楚娟，廖雪梅，區國齡”

(e)  Natural and ordinary meaning

15. To put the Disputed Plea in context, I start with the discussion of what is meant by the natural and ordinary meaning of words.  According to Gatley on Libel and Slander,[1] it refers to “the meaning in which reasonable people of ordinary intelligence, with the ordinary person’s general knowledge and experience of worldly affairs, would be likely to understand them.  The question is what would the words convey to the mind of the ordinary, reasonable, fair-minded reader?”

16. In Fox v Boulter, Bean J held that general knowledge means:

“16. …… “matters of universal notoriety” – that is to say, matters which any intelligent viewer or reader may be expected to know. Anything that requires assiduous reading and a good memory so as to recall the facts of a story dating back several weeks or months cannot fall within that definition. To give the term “general knowledge” such a wide interpretation would erode the distinction between ordinary and natural meaning on the one hand and innuendo meaning on the other, and would breach the well established rule that evidence is inadmissible on the issue of natural and ordinary meaning of the words complained of.”

17. But the expression “the natural and ordinary meaning” of words is deceptive because it encompasses the direct, literal meaning of the words, and an inferential meaning inherent in those words.[2] The latter means “…… any implication or any inference which a reasonable reader guided not by any special but only by general knowledge, and not fettered by any strict legal rules of construction would draw from the words”.[3]

18. Defamation by implication arises when the claimant is compared with, say, odious or disreputable persons or persons perceived to be incompetent, whether they be historical or fictional.[4]  For example, the court takes judicial notice that the word “Judas” has an application that is generally known and is likely to bring into contempt a person against whom it is directed.  In Hoare v Silverlock,[5] it was said that:

“…… Suppose the libel had said the plaintiff acted like a Judas: must the history of Judas have been given, and referred to by innuendo? We ought to attribute to the Court and jury an acquaintance with ordinary terms and allusions, whether historical, or figurative or parabolical. If an expression, originally allegorical, has passed into such common use that it ceases to be figurative, and has obtained a signification most literal, we must understand it as it is used. …… We must understand such terms according to the sense which has become familiar.” (per Coleridge J)

“…… Nothing is easier than to bring persons into contempt by allusion to names well known in history, ……” (per Erle J)

In Bennett v The Australian Newspaper Company,[6] Windeyer J cited Hoare and said “[the] word “Ananias”, as applied as an epithet, beyond all doubt conveys the imputation that the person to whom it is applied is a liar, and denotes, in popular opinion, the typical liar – a liar on the most serious subjects; just as “Judas” as an epithet denotes the typical traitor of the worst kind …… and a writer who uses words towards another which by the common consent of society convey a definite imputation cannot be allowed to say that he does not intend that meaning”.

19. Although a layman may regard the above imputation by

allusion to be a classic example of an “innuendo”, the law treats such inferential meaning as a false/popular innuendo and part of the “natural and ordinary meaning” of the words.  This must be distinguished from a true/legal innuendo, which I now turn to.

(f)  True/legal innuendo

20. There is said to be a true/legal innuendo where the defamatory meaning only arises because of extrinsic facts which are known to the recipients.  In this sense, a true/legal innuendo only exists where the extended meaning arises from facts passing beyond general knowledge.[7] This has two consequences:[8]

(a) The claimant must plead not merely the special meaning being attributed to the alleged defamatory words, but also plead the extrinsic facts alleged to give rise to that meaning.  He has to prove the supporting extrinsic facts at the trial and further prove that those facts were known to at least one of the persons to whom the words were published.  Order 82 rule 3(1) of the Rules of the High Court (“RHC”) provides that “[where] in an action for libel or slander the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he must give particulars of the facts and matters on which he relies in support of such sense”.

(b) A true/legal innuendo (as distinct from a false/popular innuendo) gives rise to a separate cause of action because it is an extended meaning not present in the words themselves.

21. A clear example of a true/legal innuendo is Tolley v J S Fry and Sons, Limited.[9] In that case, the defendants, by way of advertisement of their chocolate product, issued a caricature of the plaintiff depicting him playing golf with a packet of their chocolate protruding from his pocket.  Such caricature was not defamatory per se if he were not an amateur golfer, but at the trial evidence was given to the effect that people might think he was not maintaining his amateur status if he lent himself to a scheme of advertising, and that he might be called upon to resign his membership of any reputable club.  The House of Lords held that the caricature was capable of bearing the meaning alleged in the true/legal innuendo that the plaintiff had agreed to promote the defendant’s products for reward and thereby prostituted his reputation as an amateur golfer.

22. Greer LJ said at pp 480-481 as follows:

“…… No doubt if special facts were proved to be known to the persons to whom the information was sent, which would lead a reasonable person knowing those facts to conclude that the words impliedly stated that the plaintiff had been discharged for misconduct, the case would have been left to the jury, but as there was no such evidence, it was held that the words were incapable of a defamatory meaning. The evidence required is evidence of special facts, causing the words to have a meaning revealed to those who knew the special facts, but not revealed by the words used in the absence of such knowledge. It is not proof of a special fact in this sense merely to call a number of people to say that they understood the words in a defamatory sense; they would have to prove some fact known to them which would be sufficient to entitle ay reasonable man with such knowledge to interpret the words in a defamatory sense. ……” (my emphasis)

23. In Grubb v Bristol United Press Limited,[10] the defendant successfully struck out all the innuendoes pleaded on the basis that the particulars alleged did not support any of them.  Pearce LJ at pp 329-330 explained the importance of proper pleading of particulars for a cause of action based on true/legal innuendo:

“It is a matter of substance for the defendants to seek to disembarrass themselves of any suppositious innuendoes before the trial.  If a plaintiff were permitted merely by ingenuous inferences to pile innuendo on innuendo, or, …… to proliferate innuendoes with the aid Roget’s Thesaurus, there would be no limit (except the limits of ingenuity) to the number of causes of action that he could bring.  The mere ventilation of all these innuendoes at the trial, especially if several be put to the jury, is likely to affect them in a manner unfavourable to the defendants.  Moreover, the presence of an innuendo might give grounds for an attempt to enlarge the scope of the evidence given by the plaintiff’s witnesses by their being asked: “What did you understand by these words?” Such evidence, when heard by a jury, might well be detrimental to a defendant, even though it is not, of course, properly admissible in their weighing of the natural and ordinary meaning.  Further, since an innuendo if a separate cause of action, any payment into court must be separate.  Although the court may order a general payment into court, and although in this case Mr Whitworth offers his assent to such an order, it might in practice be embarrassing for a defendant who is considering payment into court to be faced with suppositious innuendoes.”

(g)  Ps’ case

24. Mr Kwok submitted that the Disputed Plea in the 3^rd Draft RASoC based on true/legal innuendo was a “tentative draft” because the particulars of extrinsic facts alleged in paragraph 18A(2) thereof would

have to be “further supplanted and touched up” in due course after (a) sight of Prof Lai’s expert report and (b) service of supplemental/ additional/amended witness statements.  Nevertheless, Mr Kwok urged this court to grant leave for the Ps to file the 3^rd Draft RASoC, which would form the basis for this court to grant leave for the Ps to obtain expert evidence from Prof Lai as to “the historical and true nature of the Boxers and [Yiquando]”.

25. Mr Kwok submitted that the purpose of such expert evidence was to enable the Ps to make sure “the extrinsic facts under paragraph 18A(2) [of the 3^rd Draft RASoC] are not misconception of the [Ps]”.  To put it in another way, Mr Kwok claimed that an “[expert] report is necessary to ensure that the pleaded true innuendo, based on knowledge of extrinsic facts, is not a misconceived cause of action because of misconception of the extrinsic facts by those who are to testify in support”.  He made clear that such expert evidence was “not meant to replace knowledge of such extrinsic facts by one or all of the [publishees identified in paragraph 18A(2) of the 3^rd Draft RASoC]”, but “to ensure that such knowledge was not misconceived” in order “to be fair to [the D], that an action of libel based on true innuendo is not grounded on misconception of [the Ps]”.  But in due course when Prof Lai’s expert report would be available and the “factual evidence in support of the necessary extrinsic facts in support of the true innuendo is supplemented”, Mr Kwok envisaged the Ps would need to seek leave to re-re-amend their pleadings to “further supplant” and “touch up” the particulars of extrinsic facts under paragraph 18A(2) of the 3^rd Draft RASoC.

26. Mr Kwok, citing Hughes v Mirror Newspapers Ltd[11] and Gatley on Libel and Slander,[12] submitted it was not necessary for the Ps to provide particulars of the readership of the Impugned Words who had knowledge of the extrinsic facts under the cause of action based on true/legal innuendo in paragraph 18A(2) of the 3rd Draft RASoC when the Ps raised such plea as an alternative to their cause of action in paragraph 18A(1) of the 3^rd Draft RASoC based on the natural and ordinary meaning of the Impugned Words.  Even so, the Ps were prepared to and did accommodate the D’s concerns by averring in paragraph 18A(2) of the 3rd Draft RASoC that the pleaded extrinsic facts and matters were “known to the [Ps], visitors and the Koon’s members as set out in the List hereof [ie陳楚娟，廖雪梅，區國齡], or any one of them ……”

27. Mr Kwok submitted that even though not all publishees would have knowledge of the pleaded extrinsic facts, the aforesaid plea that referred to identified publishees “or any one of them” satisfied the requirement of having at least one publishee who had knowledge of the particular extrinsic facts identified for the Disputed Plea being a cause of action based on true/legal innuendo.  He said that only those publishees with knowledge of the pleaded extrinsic facts would find the Impugned Words defamatory.

(h)  D’s case

28. Mr Chain complained that the Ps apparently had not even

decided on their “final” version of the draft Re-Amended Statement of Claim, which the Ps claimed would only come about after finalisation of expert evidence and further witness evidence.  Mr Chain could not support such approach as it would be tantamount to putting the cart before the horse.

29. Mr Chain submitted that the starting point must be the Ps’ duty under Order 82 rule 3(1) of the RHC to provide particulars of their cause of action based on true/legal innuendo.  But whether particulars of “facts and matters on which [the Ps rely] in support of” “an action for libel or slander [when the Ps allege] that the words or matters complained of were used in a defamatory sense other than their ordinary meaning” in any given case were sufficient must turn on the circumstances of such case.  Mr Chain argued that Hughes when read in its own context did not support the wide proposition put forward by Mr Kwok.  Further, it appeared that the plaintiff in Hughes had given particulars of a number of facts which he then asserted were either general knowledge or if not they amounted to special knowledge, but Mr Chain said the report was unclear as to what those facts were.[13]

30. Mr Chain accepted it might be argued that in cases of “current affairs” it might not be easy to draw the line between general and special knowledge, which might depend on the stature of the involved individual(s) and the length of the passage of time.  He submitted that the case of Oriental Press Group Ltd v Next Magazine Publishing Ltd & ors[14] was a good illustration of this even though the plaintiff there conceded that certain facts could not be general knowledge.

31. Mr Chain submitted that the Ps’ case on true/legal innuendo in paragraph 18A(2) of the Draft RASoC with alleged extrinsic facts that concerned historical facts rather than current affairs appeared to be no more than “general knowledge” of average Chinese persons who knew a bit or something about modern Chinese history.  If that were the case, it would not be a doubtful case of possible special knowledge but one of general knowledge.  If the Ps claimed otherwise, it would be incumbent on them to state their case clearly.

32. Mr Chain submitted that if the Ps were alleging some special meaning unknown to general readers but known only to someone or some special group of readers who had knowledge of certain extrinsic facts, it would be incumbent on the Ps to plead (a) who were the special group of readers, (b) (more significantly) how this special group (as distinct from general readers) came to have/acquire such special knowledge, and (c) what the special knowledge was.[15]  He further submitted it would be a bad plea of true/legal innuendo if the special group of readers could say no more than “I/we just know”, in which case they would be no different from an average reader with general knowledge, and there would be no cause of action on true/legal innuendo.

33. As regards expert evidence on “the true nature of the Boxers

and [Yiquando]”, Mr Chain submitted that firstly it depended on whether there was any a proper plea of true/legal innuendo.  Even with such plea, whether expert evidence would be admissible would depend on how the Ps pleaded their case, but Mr Chain thought that given the very nature of special knowledge of a special group of readers, the propriety of proof by expert evidence would be unlikely.  After all, the question would always be what the reasonable reader understood the Impugned Words to mean, and while the “correctness” of such understanding would be relevant, it would not be judged by “expert” knowledge.  Mr Chain submitted that to say expert evidence was needed to deal with possible “misconception” of the readers was truly a misconception by itself.

34. Mr Chain added that the plea in paragraph 18A(2)(d) of the 3^rd Draft RASoC could only apply to the Koon, and this should be made clear.

(i)  Discussion

35. An innuendo meaning based on a true/legal innuendo is something more than can be implied from the impugned words.  It is a meaning which can be implied from the words complained of, but only if the reader also knows other facts (which are not of general knowledge).  These are generally called extrinsic facts.[16] In this sense, there is no conceptual distinction between “special knowledge” and “extrinsic facts” because extrinsic facts that support an innuendo meaning are necessarily of special knowledge passing beyond general knowledge.  If the readers know of facts that are so well known generally that such facts should be treated as part of their general knowledge, then the implied meaning will be that of a false/popular innuendo.

36. Insofar as Mr Kwok suggested that a true/legal innuendo depended on extrinsic facts but not special knowledge, I reject such contention.  As explained in paragraphs 15-19 above, the natural and ordinary meaning of words include not only the literal meaning but what conclusion could reasonably be drawn from and put on the words.  As Lord Reid said in Lewis v Daily Telegraph,[17] more often than not the sting is not so much in the words themselves as in what the ordinary man will infer without special knowledge from them.  Such meaning by implication that depends on “matters of universal notoriety”[18] (ie matters that go beyond the words themselves but which any intelligent viewer or reader may be expected to know) also come within the natural and ordinary meaning.  Classic examples are set out in paragraph 18 above.  For example, even though the history of “Judas” may not be literally set out in (and are therefore facts extrinsic to) the words complained of, they are of general knowledge and the expression (ie comparison of a person to “Judas”) has passed into such common use that a reasonable reader guided only by general and not special knowledge will infer a defamatory sense to the words. But once the facts that have given rise to the extended meaning pass beyond general knowledge, they become matters of special knowledge or special facts.

37. In support of his argument that only extrinsic facts and not special knowledge would support a plea of true/legal innuendo, Mr Kwok gave the example of an English publication which contained an Italian word that in its ordinary meaning would be defamatory if read by publishees who had special knowledge in the sense that they understood the Italian language.  For publishees who did not understand Italian, the publication would not be defamatory.  Mr Kwok submitted that since the defamatory word in Italian was expressly set out in the publication, a cause of action in defamation based on the natural and ordinary meaning of such word would suffice, and the special knowledge of the relevant publishees (ie those who understood the Italian language) would not “necessarily support a cause based on true innuendo because there is no need to plead any extrinsic fact not found in the [publication], just the Italian word itself, in its ordinary and natural meaning”.

38. I disagree that knowledge of the Italian language in the above example amounts to “special knowledge” in the sense adopted in libel law for distinguishing between general and special knowledge for ascertaining whether the extended meaning of words is a true/legal innuendo and a false/popular one.  As explained in Duncan and Neill on Defamation,[19] “…… words published in a foreign language are, in general, to be treated in precisely the same way as words published in a local dialect …… no actionable slander would be published by a man who spoke some defamatory words to a group of people, none of whom understood the language in which he spoke”. In Mr Kwok’s example, quite simply, the only relevant group of publishees in any actionable defamation claim would be the readers who understood the Italian language, and for such publishees there would be no question of “special knowledge” at all for they would have understood the natural and ordinary meaning of the impugned Italian word.  In my view, Mr Kwok’s example does not assist the Ps’ arguments.

39. Turning to the issue at hand, in respect of an innuendo meaning based on a true/legal innuendo, a claimant must, in addition to identifying the meaning complained of, (a) plead and prove particulars of the facts and matters on which he relies (ie extrinsic facts that are not of general knowledge which, if known about, affect the way the words complained of are understood) in support of that sense, and (b) “identify the person or persons to whom the words were published and who are alleged to have had knowledge of the special meaning or the extrinsic facts.  In default of compliance with the requirements for pleading innuendo meanings, the pleaded meaning may be struck out”.[20]  After all, the claimant will have been defamed in the minds of those readers, but not in the minds of the readers who did not know the extrinsic facts.[21]

40. In Fullam v Newcastle Chronicle & Journal Ltd,[22] the plaintiff left the Catholic priesthood, married and had a child. He complained that eight years later an article in a local newspaper contained libellous imputations that he had married while still a priest and that he had fathered a illegitimate child.  He pleaded as extrinsic facts the date of his marriage and the date of birth of his eldest child, but he did not give particulars of the persons who knew those extrinsic facts.  It was held on appeal that unless he so supplied particulars of those receiving the publication having the requisite knowledge of the dates of his marriage and/or the birth of his child, that part of the statement of claim would be struck out. After all, only those who knew of such facts could draw the imputation alleged.

41. Lord Denning MR said that the identity of the person who had knowledge of the special circumstances was a most material fact in the cause of action based on a true/legal innuendo for it was the publication to him which was the very foundation of such cause of action, hence he should be identified in the pleading itself or in the particulars under it.[23] The learned judge explained the rationale in greater detail as follows:[24]

“Secondly, the cause of action based on a legal innuendo. If the plaintiff relies on some special circumstances which convey (to some particular person or persons knowing these circumstances) a special defamatory meaning other than the natural and ordinary meaning of the words (pleading what is called a ‘legal’ innuendo so as to show what is that special defamatory meaning), then he must in his statement of claim specify the particular person or persons to whom they were published and the special circumstances known to that person or persons, for the simple reason that these are the ‘material facts’ on which he relies, and must rely, for this cause of action. It comes straight within the general rule of pleading contained in RSC Ord 18, r 7; and also within the particular rule in libel actions contained in RSC Ord 82, r3. ……”

42. Fullam was a case where the number of persons likely to be aware of the extrinsic facts and also to have seen the published material would have been limited.  This was because the local newspaper did not circulate in the area where the plaintiff had been a priest or subsequently lived.  Even so, Lord Denning MR said that for the cause of action based on true/legal innuendo there was no exception, even “in the case of a newspaper, because the words would not be so understood by the world at large, but only by the particular person or persons who know of the special circumstances” (my emphasis).[25] But Lord Scarman would have allowed the plaintiff in a proper case to rely on an inference that some readers must have known of the special facts:

“There may well be cases in which it would not be necessary to plead more than the fact of publication by newspaper and the extrinsic circumstances, leaving it to be inferred that there would be readers with knowledge of the facts [about his wife and child]. For instance, the facts may be well known in the area of the newspaper’s distribution – in which event I would think it would suffice to plead merely that the plaintiff will rely on inference that some of the newspaper’s readers must have been aware of the facts [about his wife and child] which are said to give rise to the innuendo. ……” (my emphasis)

Yet in Fullam Lord Scarman also found it was not a case where the drawing of inference was permissible:

“…… Justice requires in this case that the plaintiff should fully particularise the publication relied on so that the defendants may understand the nature of the case they have to meet; especially whether it is one which, if successful, would be likely to result in an award of substantial or trivial damages. The defendants are entitled to know so that they may decide whether to defend or to settle, whether to pay into court and, if so, how much, and generally what course they ought to follow.”

43. Thus, in cases where the extrinsic fact is obscure and/or the readership is limited a claimant will have to plead and give particulars and also to adduce evidence from witnesses or documents to prove that the readers of the words complained of knew the extrinsic facts.  But in other cases, a claimant may arguably rely on an inference to prove that some readers had the necessary knowledge of the extrinsic facts.[26]

44. In Grappelli & anor v Derek Block (Holdings) Ltd & anor,[27] the plaintiff was a violinist with an international reputation.  The defendant booked concerts at various places in England some months in advance without his authority.  The defendant cancelled the bookings by telephone, making the excuse that the plaintiff was seriously ill and unlikely to tour again.  This was completely false.  About two months later, the Sunday Times and other papers published a notice setting out details of the concerts where the plaintiff would be performing a few weeks later.

45. Lord Denning MR referred to Fullam and held that there was a “general principle of pleading” that, where a true/legal innuendo was alleged, the plaintiff “ought to specify the persons who have the particular knowledge from which they drew a defamatory meaning”.[28] Dunn LJ agreed this was the “general rule”, but he also expressed agreement with Scarman LJ in Fullam that there might be an exception, “such as …… where the publication is in a national newspaper of a very wide circulation, and the only reasonable inference is that some of the readers of that newspaper must have some knowledge of the facts which are said to give rise to the innuendo”.

46. Fullam and Grappelli were applied in Baturina v Times Newspapers Ltd.[29] Lord Neuberger of Abbotsbury MR held that “the general rule” should apply, ie the claimant should identify the readers who appreciated the innuendo when they read the subject article/trailer,[30] and that the innuendo meaning would not be made out unless such readers were produced at trial and were credible witnesses.[31] Although Baturina concerned a national newspaper, there was no evidence to show it had a wide circulation among Russian inhabitants in England and Wales, and the number of readers of such newspaper circulated in Russia could be tiny.  The learned judge took into account various factors suggesting that the relevant readership might be limited, and held it would be unfair on the defendant not to require the claimant to identify in her statement of case readers who appreciated the innuendo when they read the article/trailer complained of.

47. Likewise, in Dana Khalil v Dr Mohannad Barakat & anor,[32] the claimant complained of libel and malicious falsehood in relation to allegations contained in what purported to be a medical report to the effect that she was not a virgin at the time of her marriage.  Eady J said as follows:

“8. …… In our society today an allegation of unchastity would not be taken by most readers to reflect in itself adversely upon a claimant's reputation …… Nevertheless, I can see that there may well be room for an innuendo, if the relevant facts were known to the publishee(s), on the basis that Ms Khalil had given an assurance (e.g. to Dr Barakat and his family) prior to marriage that she was in fact a virgin and/or that it was generally regarded as wrong for a woman purporting to be a practising Muslim to lose her virginity prior to marriage. It would obviously be necessary to plead with clarity exactly which publishee(s) knew of any such extraneous facts upon which she wishes to rely.” (my emphasis)

48. Fullam was followed in Australia by Hunt J in a non-media slander case Lazarus v Deutsche Lufthansa AG.[33] In that case, a member of an air crew called the plaintiff a coward in the presence of other passengers whom the plaintiff could not identify.  It was held that in cases of limited publication the plaintiff was obliged to disclose the names of the persons to whom the publication was made.  Hunt J said at p 191 as follows:

“ A plaintiff’s obligation to give particulars of his claim is to provide such information as is necessary to make the defendant aware of the nature of the case which he is called upon to meet. …… In particular, it is not a question of whether the defendant has adequate knowledge himself of the real facts; it is a question whether he has adequate knowledge of what the plaintiff alleges are the facts, for that is the case which he must meet …… Nor is it a valid objection to the supply of particulars that such particulars will disclose to the defendant the names of witnesses the plaintiff proposes to call …… The question in the present case is just how far the plaintiff must go in his identification of the persons to whom the publication is alleged to have been made.

 The Supreme Court Rules 1970, Pt 67, r 12(a), obliges a plaintiff to subscribe to his statement of claim sufficient particulars of the publication upon which he relies to establish his claim to enable that publication to be identified.  No such particulars have been subscribed by the plaintiff in the present case. ……”

49. On the basis of such rationale, Hunt J considered that the plaintiff should give in his statement of claim particulars of the identity of the persons to whom the publication was alleged to have been made.  The learned judge made the point that “[the] identity of those persons (either general or precise) is of vital importance to a defendant in almost every defamation action, whether the publication was oral or in writing.  In both cases, the defence of qualified privilege will depend upon the defendant being able to establish that those persons to whom he is alleged to have published the matter complained of has a legitimate interest in the matter so published.  The difference between substantial or trivial damages …… will depend in both cases upon the identity (general or precise) of those to whom the matter complained of was published” (my emphasis).[34]  But on the other hand, His Honour said “the newspaper defendant in a written defamation case could hardly require the plaintiff to identify the readers of its newspaper …… it is because the defendant does not have to meet any case based upon the precise identity of its readers, nor does it need to know the precise identity for any purpose in relation to its own defence.  The plaintiff in his case will be relying on the width or the unrestricted nature of the publication, not upon the precise identity of the persons to whom it was made, and similarly the defendant will stand or fall in relation to his defences upon the width of the publication and not upon the precise identity of the persons to whom it was made”.[35] His Honour referred to Fullam and Grappelli as exceptions to this rule about newspaper cases.

50. Hunt J ordered the plaintiff to provide the best particulars he could identify of those persons to whom the matter in question had been published, and of the factual basis of his lack of knowledge of the names of those persons.  In that case, the best particulars that could be given of the persons to whom the publication was alleged to have been made were “those passengers seated in the immediate vicinity of where [the defendant] was standing, which he has already identified in his further and better particulars as being approximately three feet from the open rear door of the aircraft”.[36]

51. Lazarus was relied on by Levine J of the Supreme Court of New South Wales in Williams v Radio 2UE Sydney,[37] a case not cited by counsel before me, in relation to a broadcast which made clear reference to a person who was not named but who was described as being the son of two persons who were named by way of a nickname and who had recently lost an election to a “Board”.  The plaintiff was the son of persons identified by nickname only and had recently lost an election to the Board of a rugby league club.  Levine J ordered the plaintiff to particularise by name and address the persons knowing the particulars of identification to whom the broadcast was published, and he was further ordered that where he was unable to do so he was to (a) nominate any group or class of persons by description specifying the facts and matters relied on and (b) assert that such class or description of persons had knowledge of the facts relied on.  Levine J said:

“However, even in mass media cases, a plaintiff would be ordered to give particulars identifying the persons to whom the publication is alleged to have been made where the plaintiff relies upon the knowledge of extrinsic facts in order to give the matter complained of a secondary or extended meaning for which the plaintiff contends as a true innuendo (Fulham v Newcastle Chronicle and Journal (1977) 1 WLR 651). In Moore v Australian Broadcasting Commission (unreported, Hunt J, NSW Supreme Court, 5 July 1985), the plaintiff was not named and a fact extrinsic to the publication related to events six years prior to publication because knowledge of that fact would enable the viewer to identify the plaintiff. The plaintiff was ordered to provide particulars of the identity of persons who knew that fact. ……

…… The particulars were relevant not only to the establishment of a cause of action and damages but also to the case of Radio 2UE and Hadley in relation to any defence, the contesting of the issue of identification, and the nature of its position on damages. ……”

52. In my view, in light of the above authorities and bearing in mind the Words (including the Impugned Words) in the Notice would not be of such wide circulation as in the case of mass media or newspaper publications, Lord Denning MR’s “general rule” is in principle applicable, and the Ps ought (a) to identify the publishees who were alleged to have knowledge of the alleged extrinsic facts, and (b) if the Ps could not identify all of such publishees by name, to (i) give a general description of such group or class of readers specifying the facts and matters relied on for such group/class and (ii) assert that such class/description of persons had knowledge of the alleged extrinsic facts.

53. Mr Kwok submitted on the strength of Hughes, another decision by Hunt J of the Supreme Court of New South Wales, that it was unnecessary for the Ps in the present action to supply particulars of the persons having knowledge of the extrinsic facts.

54. The background to this proposition is that there may be cases in which the claimant is not certain whether he should rely on the natural and ordinary meaning of the words complained of or on a true/legal innuendo.  Gatley on Libel and Slander said “it may not always be easy to decide whether an extrinsic fact relied on is a matter of special knowledge, or whether it is just general knowledge in the light of which the ordinary, though indirect, meaning of the words has to be ascertained”, and “[in] such cases, the best course is to plead in the alternative”.[38]

55. Hughes was a newspaper defamation case where the plaintiff relied primarily on the proposition that certain extrinsic facts were within the general knowledge of the community and therefore within the natural and ordinary meaning of the matter complained of, or alternatively relied upon a true/legal innuendo.  The defendant’s application for particulars of names and addresses of persons with knowledge of the extrinsic facts was refused.

56. But Hunt J acknowledged that particulars must be given of persons who have knowledge of the extrinsic facts which are not generally known, “where the class of such readers may be sufficiently limited in size or composition to enable the defendant to rely on some defence which would not be applicable to a publication of a wider class or a different class, or where the size or the composition of that class may dictate to the defendant the amount which it should consider paying into court: Fullam v Newcastle Chronicle and Journal Ltd …..” [39]

57. In that case, “the plaintiff has given particulars in his statement of claim of a number of facts which he asserts are either within the general knowledge of the community (and thus within the natural and ordinary meaning of the matter complained of ……) or, if not within that knowledge, then extrinsic facts giving rise to a true innuendo” (my emphasis).[40]  Hunt J held that it was at least arguable that the facts pleaded by the plaintiff were within the general knowledge of the community (including, at least, “a great majority of those members of the public who watch Rugby League football on television”[41]).  The plaintiff relied upon a true/legal innuendo “only in the alternative in case it is held at the trial that those facts are not within that general knowledge.  Obviously enough, if he gave the particulars which the defendant seeks, the plaintiff will say that the whole community would have had knowledge of those facts and thus every reader of the matter complained of. That, or something like it, is the principal case for which the plaintiff contends” (my emphasis).[42]

58. The learned judge went on to say that it will not be in every case in which a plaintiff will escape from giving particulars of the persons with knowledge of the extrinsic facts simply because innuendo has been pleaded as an alternative to a principal case relying on the facts being within the general knowledge of the community.  In some cases, it will be obvious that a claim that specified facts are within the general knowledge of the community must fail.  “In those cases, particulars may well be ordered if it is thought to be necessary to enable the defendant to know the case which is to be made against him.”[43]

59. In a subsequent defamation case by the Supreme Court of New South Wales again not cited by counsel, Hall & ors v Jones & anor,[44] the 2^nd to 4^th plaintiffs claimed they were identified in a radio broadcast only as members of the National Rugby League Judiciary but not by name.  The plaintiffs claimed in the first instance that their identity was made a matter of common knowledge, and in the alternative, their appointment as members of the National Rugby League Judiciary had been published extensively in numerous mass media publications.  Counsel for the plaintiffs referred to one publication in The Australian in support of the latter proposition.  The plaintiffs claimed that “the number of persons to whom the plaintiffs were identified is too great for the plaintiffs to be able to provide a list of their names and addresses”.[45] Studdert J held that the knowledge necessary to link the unnamed plaintiffs with the broadcast would not have been widespread, hence the defendants were entitled to particulars as to identification, and ordered the plaintiffs to provide names and addresses of some persons to whom the matter complained of was published and who had heard the radio broadcast and recognised the unnamed plaintiffs.  In respect of persons who were not nominable by name and address, the plaintiffs were ordered to nominate them by description as a class and by specifying the facts and matters that were relied upon in asserting that this class had knowledge of the relevant facts.[46]

60. In coming to such view, Studdert J relied on Lazarus and Moore & anor v Australian Broadcasting Corporation,[47] but did not refer to Hughes.  The learned judge said that clearly, as a matter of principle, a defendant is entitled to know the nature of the case which he or it has to meet.[48] Studdert J cited the following considerations by Hunt J in Moore which he found apposite to Hall:[49]

“A defendant should not be obliged to guess; he is entitled to know the nature of the case which is to be presented against him: Sims v Wran [1984] 1 NSWLR 317 at 321-322. In that case it was said:

There is often a fine line between giving particulars of the case to which a party proposes to make and disclosing the evidence by which that case is to be proved. It all depends upon what is necessary to guard the other party against surprise. If the other party cannot otherwise be so guarded, it may sometimes be necessary for a party to disclose his evidence, or at least a broad outline of it. The starting point is what is necessary to guard the other party against surprise; the starting point is not what can be said without disclosing the evidence to be led.

Whether a plaintiff relies upon extrinsic facts which are known only to a very few people, or whether he relies upon extrinsic facts which are known to a lot of people, the defendant is clearly entitled to know just precisely what is the nature of the case which has been made against him.”

61. In my view, the averments in paragraphs 18A(1) and (2) of the 3^rd Draft RASoC are far different from the pleadings in Hughes.  First, even though the Ps asserted that (a) the Impugned Words were defamatory of them in its natural and ordinary meaning, particulars of which were set out in paragraph 18A(1) of the 3^rd Draft RASoC, and also (b) the meaning was a true/legal innuendo arising by reason of extrinsic facts within the knowledge of people to whom the matter was published, which extrinsic facts were set out in paragraph 18A(2) of the 3^rd Draft RASoC, these two causes of action were not put forward as true alternatives as in the case of Hughes.  This is borne out by the averment of “[further] and/or in the alternative” that prefaced the cause of action on true/legal innuendo in paragraph 18A(2) of the 3^rd Draft RASoC.  Although Mr Kwok intimated in his oral submissions at the Hearing that the Ps might not need to rely on such cause of action if they were to succeed at trial on the cause of action in paragraph 18A(1) of the 3^rd Draft RASoC that relied on the natural and ordinary meaning of the Impugned Words, when pressed he was reluctant to abandon words “[further] and/or” in paragraph 18A(2) of the 3^rd Draft RASoC and maintained that the “2^nd group of Causes of Action” in paragraph 18A(2) of the 3^rd Draft RASoC was truly a further as well as alternative cause of action.

62. But at the same time at the 2^nd CMC, Mr Kwok put forward the Ps’ case in respect of the cause of action under paragraph 18A(2) of the 2^nd Draft RASoC on the premise that there were people to whom the Impugned Words were published who were aware of the pleaded extrinsic facts, and who would have read such words as defamatory of the Ps notwithstanding that there would be other persons who might have been unaware of the extrinsic facts and therefore might not have read such words in that way.  The effect of such submissions is that the Ps expected the number of readers to whom the Impugned Words were published and who would have knowledge of the relevant extrinsic facts might be less than the general readership of the Notice.

63. This is quite different from Hughes where the cause of action based on the natural and ordinary meaning of the words complained of and the cause of action based on true/legal innuendo was a true alternative defence.  Significantly in that case, under the former cause of action the readership of the impugned media publication was the whole community and the plaintiff pleaded facts that were said to be within the general knowledge of the community, and the very same readership and facts were relied upon by the plaintiff under the latter cause of action, which was therefore a true alternative cause of action in the sense that it would only be viable if the court were to find that the facts relied on were not within the general knowledge of the community.  In such a situation, it would be otiose to ask for particulars of the relevant readers under the alternative cause of action since the obvious answer would mirror that for the former cause of action, ie the whole community.

64. In any event, no facts said to be within the general knowledge of the readership of the Notice had been pleaded in paragraph 18A(1) of the 3^rd Draft RASoC as a mirror averment of the facts pleaded in paragraph 18A(2) of the 3^rd Draft RASoC to demonstrate a truly alternative cause of action that merely turns on the court’s determination as to whether knowledge of such facts come within general or special knowledge of the readers.  According to Mr Kwok,[50] the plea in paragraph 18A(2) of the 3^rd Draft RASoC arises in circumstances where the defamatory meaning would be apparent not to any ordinary reader but to a particular class with knowledge of the specified extrinsic facts

65. Further, unlike Hughes and other media/newspaper mass publication cases, given the location of the Notice and the time period it was put up on the land belonging to Realray, the nature of the Impugned Words, the imputations in their context and the surrounding circumstances as pleaded, the class of readers with knowledge of the alleged extrinsic facts is likely to be (a) sufficiently limited in size or composition to enable the D to rely upon some defence which would not be applicable to a publication to a wider or different class (as in a mass media or newspaper case), or (b) where the size or composition of that class might dictate to the D the amount which he should consider paying into court.[51]

66. As pointed out above, the purpose of pleadings is to allow the parties to know in broad outline the case which they have to meet at trial, and the use of particulars is to define the issues and thereby prevent surprise.  In my view, to make good their claim based on true/legal innuendo in paragraph 18A(2) of the 3^rd Draft RASoC, it is appropriate and indeed necessary for the Ps to provide particulars of named persons who had knowledge of the alleged extrinsic facts and who had read the Impugned Words, and in the event that such persons are not nominable, the Ps should nominate any unnamed persons by description as a class, specifying the matters relied upon in asserting that those persons in this class had knowledge of the alleged extrinsic facts.[52]

67. This is important because, as Mr Chain submitted, if the alleged facts and matters the Ps relied upon to say that the class of persons had knowledge of the alleged extrinsic facts is nothing more than “general knowledge” of modern Chinese history of an average Chinese person in the community, the D may well be able to raise a positive defence on such basis that this is not a case of true/legal innuendo.  Mr Chain fairly accepted that if proper particulars were provided, eg (on hypothetical basis) that the relevant class of publishees was those members of the Koon who had read the Impugned Words and who understood a defamatory meaning by reason of their knowledge of the alleged extrinsic facts from reading a particular Taoist scripture, then the D would have to meet such claim, but the plea presently put forward in paragraph 18A(2) of the 3^rd Draft RASoC left the D no wiser as to the precise nature/scope of the Ps’ cause of action based on true/legal innuendo.

68. In my view, these are material facts required under Order 82 rule 3(1) of the RHC to enable the D to know precisely what case he has to meet at trial and to prepare accordingly.  I agree with Mr Chain that the D should be enabled by the particulars to weigh the quantum in the case against him and to consider how to properly frame his defence contentions, including the defence of qualified privilege that may depend upon the D being able to establish that the alleged publishees have a legitimate interest in the Notice so published.

69. As a fallback, Mr Kwok submitted that the plea in paragraph 18A(2) of the 3^rd Draft RASoC that made reference to “the [Ps], visitors and the Koon’s members as set out in the List hereof [ie陳楚娟，廖雪梅，區國齡], or any one of them ……” who had knowledge of the pleaded extrinsic facts was sufficient to address the D’s concerns.  I disagree.

70. Mr Chain complained that the reference to “any one of them” is objectionable and embarrassing because the D was at a loss to understand the class of persons the Ps put forward as having read the Impugned Words and having had knowledge of the alleged extrinsic facts.  Mr Kwok’s answer was two-pronged.

71. First, Mr Kwok claimed that at this stage it was uncertain whether the persons who had read the Impugned Words and who had knowledge of the alleged extrinsic facts (ie including the Ps, visitors to the Koon and the named persons) were misconceived in their belief that such words had a defamatory meaning.

72. I am not persuaded by such argument.  If the Ps did not even know the parameters of their own case, the D cannot be expected to answer it.  Further, Mr Kwok also acknowledged at the 2^nd CMC that the above uncertainty went to the matter of evidence/proof at trial and not to the matter of pleadings, and that for the purpose of pleadings knowledge of the alleged extrinsic facts by persons who had read the words complained of would suffice to support a true/legal innuendo.  That being the case (although I do not necessarily agree with such proposition), such uncertainty does not explain any inability to plead with certainty.

73. Secondly, Mr Kwok submitted that not everyone in the general community and indeed not everyone of the Ps, visitors and/or even the named persons in the List referred to in paragraph 18A(2) of the 3^rd Draft RASoC would have been aware of the alleged extrinsic facts, hence it was necessary to plead “or any one of them”.  The reason for this, as explained by Mr Kwok, was due to the uncertainty as to how the relevant publishees aquired knowledge of the alleged extrinsic facts, which could be from various sources (including books, television, radio, internet etc) over an extended period (which might have spread over 10-20 years).  Indeed, Mr Kwok accepted that apart from the Ps, visitors and/or the named persons in the List as specifically referred to in paragraph 18A(2) of the 3^rd Draft RASoC, there might well be other persons (eg employees/workers at the Koon) who might have read the Notice and also might have knowledge of the alleged extrinsic facts, and who might have understood the Impugned Words to carry a defamatory innuendo meaning, but Mr Kwok said the Ps could not and (more importantly) need not plead and describe every such person, and the plea of “or any one of them” satisfied the requirement of having at least one publishee who had special rather than general knowledge of the identified extrinsic facts for the cause of action based on true/legal innuendo.

74. The above submissions suggest that the Ps had little idea as to the persons who constitute the class of persons who have read the Impugned Words and who have knowledge of the alleged extrinsic facts.  Although this must be a matter of fact, and a material one in my view, the fluidity of Mr Kwok’s submissions that reduces (ie “any one of [the Ps, visitors and the Koon’s members as set out in the List hereof]”) or increases (eg possibly employees/workers at the Koon who have read the Notice and who also have knowledge of the alleged extrinsic facts) such class of persons on a basis that even the Ps cannot now put a finger on (ie the varied sources of knowledge of the alleged extrinsic facts over an extended period) leads inexorably to the conclusion that the cause of action based on true/legal innuendo is embarrassing, and the D should not be called upon to address such an embarrassing claim.  I also agree with Mr Chain that such submissions sail fairly close to his complaint that the so-called special knowledge or extrinsic facts may well have merged into “general knowledge” if the class of persons who has knowledge of the alleged extrinsic facts, in practical terms, cannot be defined.

75. In any event, the suggestion that pleading “or any of [the Ps, visitors and the Koon’s members as set out in the List hereof]” suffices is fallacious.  There is no dispute that the material part of the cause of action in libel is the publication of the libel, and in order to constitute publication, the matter must be published by the defendant to (communicated to) a third party, that is to say, at least one person other than the claimant.[53]  Hence, proof of publication to at least one person who had knowledge of the extrinsic facts would complete the cause of action based on true/legal innuendo, without which there is simply no actionable defamation.  But an averment of publication to at least one person so that the cause of action can lie does not tell the court and/or the defendant the extent and scope of the publication of the words complained of, and it is the fullness of the claimant’s case that the defendant has to meet and to consider his defence (eg qualified privilege) or quantum.  In my view, it is plainly embarrassing and insufficient for the Ps to qualify the pleaded publishees with “or any one of them”.

76. Mr Chain further submitted that the defamatory meaning alleged in paragraph 18A(2)(d) of the 3^rd Draft RASoC, ie “the 1^st to 6^th Plaintiffs’ activities were similar and comparable to those of the Boxers and [Yiquando] in history in that, in like manner as the Boxers and [Yiquando] in history, they …… (d) operate and are part of or parties to an evil cult which ought to be outlawed and abolished” (my emphasis), could only be referable to the Koon and not P3, P4, P5 and P6 since the individual Ps could not be an evil cult, and hence the current plea that referred to all the Ps was embarrassing.  Mr Kwok accepted that if the Ps were able to establish such defamatory meaning, the averment of “an evil cult which ought to be outlawed and abolished” was referable to the Koon, but P3, P4, P5 and P6 were arguably “part or parties” to such evil cult.  In my view, although the defamatory meaning in paragraph 18A(2)(d) of the 3^rd draft RASoC could have been pleaded more elegantly, on Mr Kwok’s explanation such plea is not on its face defeasible.

77. However, this does not really help the Ps because without clear pleadings/particulars as to the matters set out in paragraph 66 above I agree with Mr Chain that paragraph 18A(2) of the 3^rd Draft RASoC is embarrassing and should not be allowed.  Whether the Ps will be able to regroup and introduce a properly particularised plea of true/legal innuendo will be a matter for the future, but the matters discussed in paragraph 74 above raise serious hurdles. That being the case, the Ps’ application to adduce expert evidence from Prof Lai in support of the cause of action in paragraph 18A(2) of the 3^rd Draft RASoC also falls away.

78. In the circumstances, I grant the following order:

(a) leave be granted for the Ps to re-amend the Amended Statement of Claim in the manner marked in green as per the 3^rd Draft RASoC save and except that (a) the words “2^nd group of Causes of Action” and the whole of paragraph 18A(2) thereof are disallowed, (b) the words “3^rd group of Causes of Action” and “4^th group of Causes of Action” thereof shall be replaced by “2^nd group of Causes of Action” and “3^rd group of Causes of Action” respectively, and (c) paragraphs 18A(3) and (4) thereof shall be re‑numbered as paragraphs 18A(2) and (3) respectively;

(b) the Ps shall within 14 days from today file and serve the Re‑Amended Statement of Claim;

(c) leave to the D to file and serve within 28 days thereafter the Re‑Amended Defence (i) in the manner marked in green as per the 2^nd Draft RAD and (ii) with amendments consequential to the Re-Amended Statement of Claim to be filed and served as aforesaid;

(d) leave to the Ps to file and serve within 28 days thereafter Re‑Amended Reply (i) in the manner marked in green as per the Draft RAR and (ii) with amendments consequential to the Re-Amended Defence to be filed and served as aforesaid;

(e) the case be adjourned to a CMC before Master S Kwang on 7 January 2015 at 3:30 pm with one hour reserved (“Master CMC”);

(f) save as provided in (k) below, all case management conferences, directions hearings and interlocutory applications in respect of the present action be docketed to be heard and dealt with by Master S Kwang who shall be at liberty, where appropriate, to refer any matter or application to be heard by a judge;

(g) paragraphs 3-4 of the Summons and the Ps’ applications set out in paragraph 11(e) above be adjourned to be heard at the Master CMC with costs reserved;

(h) where appropriate, both parties may by consent summons or either party may by summons apply to Master S Kwang to expedite the Master CMC with reasons on affidavit;

(i) paragraphs 5-6 of the Summons be dismissed;

(j) any application for the present action and HCA1266/2012[54] to be consolidated or heard/tried together or for global case management of these two actions shall be made no later than 14 days before the Master CMC, and such application (if any) shall be returnable before Master S Kwang at the Master CMC (unless Master S Kwang directs otherwise);

(k) subject to (j) above, any application for the present action (whether together with HCA1266/2012 or not) to be consolidated with or heard/tried together with any related or other action shall be docketed to be heard by this court;

(l) there be a costs order nisi that (i) costs of and occasioned by the argument in respect of the Disputed Plea and paragraphs 5-6 of the Summons (including all costs reserved, if any) be paid by the Ps to the D to be taxed if not agreed, and (ii) save as aforesaid, costs of and occasioned by paragraphs 1-2 of the Summons and the aforesaid re-amendment of pleadings in (a)-(d) above be costs in the cause.

79. In respect of paragraph 78(k) above, this court understands that there are other related actions that involve the parties. For example, HCMP143, 1013 and 2477/2011 is due to be tried on 5 January 2015. Mr Chain advised that there are other related proceedings. This court notes that the present action and HCA1266/2012 already involve many issues and complex evidence, and prima facie it is inappropriate to encumber them further with other actions or issues in other actions.  Careful scrutiny is required to ensure the present action remains effective and manageable for eventual trial.

80. Whilst the 2^nd Draft RAD was an improvement on the Amended Defence, it still contained extensive pleas in relation to forecasts by Taoist spiritual or planchette writings and/or other religious or doctrinal matters, which raise questions as to whether or not such matters are justiciable or capable of objective ascertainment.[55] It is premature for me to make observations on these matters before full formulation of the re‑amended pleadings, but the learned Master may wish to bear in mind these issues when dealing with the overall case management of the present action at the Master CMC.

III.  RELATED CASE

81. At the 2^nd CMC, I was informed by Mr Kwok and Mr Chain that HCA1266/2012 was a libel claim by the D and Chong Kai Man against the estate of P2, P3, P4, P5 and P6 in which various matters pleaded in the parties’ respective pleadings in the present action were also referred to in that action.  It was therefore suggested that HCA1266/2012 and the present action should be heard and tried together.  For such purpose, the D filed a summons in HCA1266/2012 on 17 September 2014 (“HCA1266/2012 Summons”) for the CMC in that action scheduled to be heard by Master A Ho on 25 September 2014 to be referred to me.

82. Since HCA1266/2012 and the HCA1266/2012 Summons were not before me at the 2^nd CMC, and bearing in mind that the pleadings in the present action had yet to be re-amended, I granted the following order in respect of HCA1266/2012 at the Hearing:

(a) the CMC scheduled to be heard by Master A Ho on 25 September 2014 at 10:30am be vacated;

(b) the HCA1266/2012 Summons be adjourned sine die with liberty to restore.

83. To facilitate further case management, I now give the following directions:

(a) HCA1266/2012 be adjourned for CMC before Master S Kwang to be heard at the same time as the Master CMC on 7 January 2015 at 3:30 pm with one hour reserved;

(b) save as provided in (e) below, all case management conferences, directions hearing and interlocutory applications in respect of HCA1266/2012 be docketed to be heard and/or dealt with by Master S Kwang who shall be at liberty, where appropriate, to refer any matter or application to be heard by a judge;

(c) where appropriate, both parties may be consent summons or either party may by summons apply to Master S Kwang to expedite the CMC in (a) above with reasons on affidavit, but such CMC must be heard together with the Master CMC;

(d) any application for HCA1266/2012 and the present action to be consolidated or heard together or for global case management of these two actions shall be made no later than 14 days before the CMC in (a) above but returnable before Master S Kwang at the CMC in (a) above (unless Master S Kwang directs otherwise);

(e) subject to (d) above, any application for HCA1266/2012 (whether together with HCA336/2012 or not) to be consolidated with or heard/tried together with any related or other action shall be docketed to be heard by this court;[56]

(f) no order is made on the HCA1266/2012 Summons save that costs of the application be costs in the cause.

84. In respect of paragraph 83(f) above, since further case management of HCA1266/2012 will be docketed to Master S Kwang for handling and in light of the directions in paragraphs 78(j) and 83(d) above, it is no longer necessary for the HCA1266/2012 Summons to be restored.

85. For the sake of good order, the D should draw up the two separate orders in paragraphs 81 and 82 above in HCA1266/2012 and not in the present action.

IV.  CASE MANAGEMENT

86. To assist the learned Master to whom the present action and HCA1266/2012 have been docketed, and to enable the parties to avoid previous case management pitfalls, I shall dwell a little on the history of the present action which led to the six-day trial (scheduled to commence on 8 July 2014) being vacated when the matter came before me for pre‑trial review (“PTR”) on 10 April 2014.  The case was not ready when leave was granted to set down for trial, and indeed it was still not ready when it came before me at the PTR.

87. On 1 March 2012, the Writ of Summons endorsed with the Statement of Claim was filed.  On 20 April 2012, D filed his Defence.  On 17 May 2012, the Ps filed their Reply, and although they pleaded malice on the D’s part, no particulars were given as required under Order 18 rule 12(1)(b) of the RHC, and no directions were given for compliance with such procedural rule.

88. There was extensive contention/dispute in the pleadings over the English translation of the Words, but no arrangement was made and no directions were granted for obtaining certified English translation of the Words to narrow or even to end the dispute.  At the PTR, I directed the parties to jointly submit their respective English translations to a single court translator for a single certified translation.  This has been done after the PTR, and I have been informed that both parties will adopt the certified English translation, thus a large chunk of dispute in the pleadings falls away.

89. As explained above, the pleadings in the present action also referred to other related proceedings (some of which are still ongoing).  It was therefore necessary to give early consideration to (a) the order of trial in various related cases to minimise duplication of efforts and to enable efficiency and procedural economy in the adjudication of the disputed issues and (b) the issue of whether any of these cases ought to be consolidated or heard together.  Since the PTR, I have been informed that the trial in HCMP143, 1013 and 2477/2011 in relation to claims alleging maladministration of the Koon will commence on 5 January 2015.  Further, enquiry by this court has resulted in the proposal intimated by counsel at the 2^nd CMC for the present action and HCA1266/2012 to be heard and tried together.

90. On 10 and 23 July 2012, the parties’ timetabling questionnaires were filed.  At the hearing of the case management summons held on 28 August 2012 (“CMS”), directions were granted concerning mediation, discovery, inspection and witness statements, and the case was adjourned for CMC to be held on 10 April 2013.  The names of the factual witnesses were not identified in the timetabling questionnaires or in the order made at the CMS.

91. On 17 and 26 September 2012, the parties filed their respective List of Documents.  On 26 February 2012, the Ps applied for leave to amend the Writ of Summons.  On 12 March 2013, leave was granted for the Ps to amend the Writ of Summons within 7 days (ie 19 March 2013) and for the D to consequentially amend his Defence within 28 days (ie by 15 April 2013) and for the Ps to amend their Reply within 28 days thereafter (ie by 13 May 2013).  On 18 March 2013, the Ps filed the Amended Writ of Summons.

92. On 25 March 2013, the D filed his listing questionnaire which advised that he would file his Amended Defence on/before 15 April 2013, and that witness statements had not been completed, but he did not give any information as to the names and/or number of factual witnesses.  On 3 April 2013, the Ps filed their listing questionnaire, which was left blank except to state that discovery had been completed, and likewise there was no information as to the names and/or number of witnesses.  The explanation provided for the empty form was that “[the Ps] have applied leave to amend the Writ and Statement of Claim and filed the Amended Statement of Claim on 18 March 2013 pursuant to [the court order]”, and “[upon] completing the pleadings, parties will proceed the outstanding directions to prepare the case for trial”.  The Ps proposed to adjourn the case management conference to a date to be fixed not earlier than mid-September 2013.

93. However, at the CMC on 10 April 2013, leave was granted to the Ps “to set down within 42 days for a 6-day trial (subject to variation upon production of counsel’s certificates provided below) before a bilingual judge alone in the fixture list” with a PTR for 30 minutes 12 weeks before trial, and the “parties shall at least 2 clear days before the setting down for trial file and serve [certificate of time estimate of trial]”.

94. At that time, (a) the Amended Defence and Amended Reply was not yet due for filing under the order dated 12 March 2013, (b) the identity and number of factual witnesses were unknown, (c) witness statements had not been prepared at all, (d) it was unknown whether further discovery would be required and/or whether interlocutory applications would have to be made when the pleadings were fully revised, and (e) no certificate of time estimate for trial had been filed by either party.

95. On 15 April 2013, the Amended Defence was filed.  On 16 May 2013, the Ps filed their certificate of time estimates for trial (which at best was a guesstimate since the latest round of amended pleadings had not been closed and no witness statement was served/exchanged as yet).  The D did not file any certificate of time estimates for trial.

96. On 19 June 2013, the Amended Reply was filed, and such pleading ballooned from 5 to 34 pages complete with three schedules.  On 17 July 2013, the Ps filed seven witness statements with the key statement comprising 29 pages in single spacing small print in Chinese with various annexures.  On 24 July 2013, the D filed four witness statements, including his own statement of 55 pages.

97. On 5 September 2013, the six-day trial was set down to commence on 8 July 2014.  On 20 February 2014, the Ps filed their supplemental list of documents.  By the time of the PTR on 10 April 2014, it was apparent to counsel and this court that with 10 witnesses (one had passed away) and the extensive facts and matters raised in the pleadings and witness statements, the six-day trial was hopelessly underestimated. A Consent Summons was filed on 9 April 2014 for re-amendment of both parties’ existing pleadings, further supplemental witness statements and further discovery.  But even the draft re-amended pleadings still left much to be desired, and both parties had to attend to further refinements.  Various issues on global case management not raised previously were canvassed by this court with the parties at the PTR.

98. There was no help for it but to vacate the trial and to utilise the first day of trial as a CMC for further case management.  Directions were given at the PTR for renewed drafts of re‑amended pleadings, revised witness statements, etc.  At the 1^st CMC on 8 July 2014, pursuant to dialogue between bar and bench, Mr Kwok and Mr Chain again needed time to reconsider and revise the draft re‑amended pleadings, and hence the case was adjourned for the 2^nd CMC.

99. For future case management of the present action and/or HCA1266/2012, the learned Master should bear in mind the lesson learned from the past procedural history, and should not set down for trial again unless all procedural steps that may impact on the trial have been completed and realistic certificates of time estimates for trial have been filed.  This is borne out by paragraph 26 of Practice Direction 5.2 that requires the CMC bundle to contain “copies of pleadings, witness statements, expert reports and a draft index of the document bundle” (my emphasis), and paragraph 32 thereof that gives power to the court at a CMC to “review the steps which parties have taken in the preparation of the case …… ” and “decide and fix a timetable for the steps which are to be taken by the parties to secure the progress of the case in accordance with the underlying objectives”.  The procedural economy and efficiency encouraged by the Civil Justice Reform requires true speed and not mere haste otherwise it may lead to even more delay and more CMCs as happened here.

100. Additionally, the learned Master should consider whether an order for setting down for trial for the present action and/or HCA1266/2012 should be made after the outcome of the trial in HCMP143, 1013 and 2477/2011 in relation to claims alleging maladministration of the Koon.