CHUNG MING YU AND OTHERS v. NEXT MAGAZINE PUBLISHING LTD AND ANOTHER

HCA 785/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 785 OF 2011

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DECISION

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I. INTRODUCTION

1.  The trial of the present action was previously scheduled to commence on 8 October 2014 with 14 days reserved. At the 2^nd Pre-trial Review (“PTR”) on 27 August 2014, I dealt with various late applications on the part of the 1^st and 2^nd defendants (“D1” and “D2”, collectively “Ds”), and vacated the trial dates (“Decision”). On 15 October 2014, I handed down my reasons for decision (“Reasons”). I also dealt with some minor applications by the 1^st to 12^th plaintiffs (“P1” to “P12”, collectively “Ps”).

2.  By the Decision/Reasons, I also directed inter alia all case management conferences (“CMCs”), directions hearings and interlocutory applications in the present action be docketed to be heard and/or dealt with by Master S Kwang (“Master”) who shall be at liberty, where appropriate, to refer any matter or application to be heard by a judge.

3.  For convenience, unless otherwise stated, I adopt herein the abbreviations in the Reasons. I also adopt without repeating here (a) the summary of the parties’ pleadings, especially the ASoC[1] and AD (then AD Draft) referred to in paragraph 4 below, and (b) the procedural developments in the present action up to 15 October 2014.

4.  By the Decision/Reasons, I granted leave for Ps to amend the SoC (a) in the manner marked in red as per the ASoC Draft, and (b) by adopting the certified English translation of the Words in the Article. On 10 September 2014, Ps filed the Amended SoC (“ASoC”). I also granted leave for Ds to amend the Defence (i) in the manner marked in red as per the AD Draft,[2] and (ii) with amendments consequential to the ASoC. On 29 October 2014, Ds filed the Amended Defence (“AD”). I further granted leave for Ps to file/serve their Amended Reply within 42 days thereafter.  At the CMC on 21 January 2015, the Master ordered that unless Ps do file/serve the Amended Reply on/before 5:00pm on 4 February 2015, Ps shall be debarred from filing such pleadings. On 4 February 2015, Ps filed the Amended Reply (“AR”).

5.  By the Decision/Reasons, I granted leave for Ds to file/serve (a) the supplemental witness statement of Ngai dated 18 June 2014 and the witness statements of Tam and Pang both dated 18 June 2014 as per the Ngai

Draft,[3] Tam Draft and Pang Draft,[4] (b) the witness statement of Tse dated 24 June 2014 as per the Tse Draft,[5] and (c) the witness statement of Yeung as per the Yeung Draft.[6] On 29 October 2014, Ds filed the witness statements of Tam, Pang, Tse and Yeung and the supplemental witness statement of Ngai. Thus, Ds introduced 4 new witnesses and 5 new witness statements.

6.  On 29 October 2014 and 7 January 2015, Ds and Ps filed their respective Supplemental List of Documents. On 4 February 2015, Ps filed their 2^nd Supplemental List of Documents.

7.  By the Decision/Reasons, I granted leave for Ps to serve additional/supplemental witness statement(s) as to fact in reply within 42 days. By a Consent Order dated 21 November 2014, leave was granted for Ps to file/serve such additional/supplemental witness statement(s) as to fact in reply by 10 December 2014. At the CMC on 21 January 2015, the Master ordered that unless Ps do file/serve such additional/supplemental witness statements as to fact in reply to the AD on or before 5:00pm on 4 February 2015, Ps shall be debarred from relying on at trial any additional/ supplemental witness statements in reply to the AD.

8.  On 4 February 2015, Ps filed and served the witness statement of 何俊文 dated 31 January 2015, the witness statements of 何雪玲, 周康傑, 許鳳蓮, 周筱穎, 曾慶恒, 黃溢軒, 葉國基 and 藍家銘 all dated 1 February 2015, and the 2^nd witness statements of 黃梓琳, 袁愛琼 and 鍾明宇 all dated 1 February 2015. Thus, Ps introduced 9 new witnesses and 12 new witness statements. By this stage, Ps had in total 24 witnesses and 27 witness statements, whilst Ds had in total 8 witnesses and 9 witness statements.

9.  As alluded to above, the Master heard the CMC on 21 January 2015. For the purpose of such CMC, Ps and Ds filed their respective Listing Questionnaire (“LQ”) on 13 and 14 January 2015.

10.  On 1 April 2015, Ds filed a summons (“Ds’ 4^th Summons”) to seek the following reliefs, and filed the affidavit of their solicitor Cheung Bing Keung Peter (“Cheung”) in support (“Cheung Aff”):

(a)	the following paragraphs of the AR (“Impugned AR”) be struck out on the grounds that (1) they disclosed no reasonable cause of action, (2) they were scandalous, frivolous or vexatious and/or (3) they might prejudice, embarrass or delay the fair trial of the action:
	(i)	paragraph 14(1)(d);
	(ii)	“Be that as it may, the casting out of demon is something that has a solid biblical basis and not necessarily something mysterious or non-orthodox” in paragraph 14(3)(b);
	(iii)	paragraph 14(3)(f)(i)-(iii);
	(iv)	paragraph 14(3)(g)(i);
	(v)	paragraph 14(3)(h)(ii);
	(vi)	paragraph 14(3)(k)(ii)-(iii);
(b)		the following witness statements (in whole or in part) (“Impugned WS”) be struck out on the grounds that they contained inadmissible evidence and/or were scandalous, irrelevant and/or were otherwise oppressive:
	(i)	paragraphs 2 and 4 of the witness statement of 何俊文 dated 31 January 2015;
	(ii)	paragraph 2 of the witness statement of 何雪玲 dated 1 February 2015;
	(iii)	paragraphs 3 and 8 of the witness statement of 周康傑 dated 1 February 2015;
	(iv)	paragraphs 4 and 6-7 of the witness statement of 許鳳蓮 dated 1 February 2015;
	(v)	paragraph 2 of the witness statement of 周筱穎 dated 1 February 2015;
	(vi)	paragraphs 2, 8, 17 and 18 of the 2nd witness statement of 袁愛琼 dated 4 February 2015;
	(vii)	the second sentence of paragraph 3 of the witness statement of 曾慶恒 dated 1 February 2015;
	(viii)	paragraph 2 of the 2nd witness statement of 黃梓琳dated 1 February 2015;
	(ix)	paragraphs 2, 4-7 and 13-17, last sentence of paragraph 35, first sentence of paragraph 44, paragraphs 47-50 and 59 of the witness statement of 黃溢軒dated 1 February 2015;
	(x)	paragraphs 2 and 18-20 of the witness statement of 葉國基 dated 1 February 2015;
	(xi)	paragraphs 2, 34 and 36, exhibit CMY5 at paragraph 85, last sentence of paragraph 92 and paragraphs 133-139 of the 2nd witness statement of 鍾明宇dated 1 February 2015;
	(xii)	paragraphs 4-60 and 62, last sentence of paragraph 65, paragraph 71, last sentence of paragraph 76, paragraphs 87-92, 143, 148-150 and 165, last sentence of paragraph 218, paragraphs 224-226, exhibit NKM 14 at paragraph 228 and paragraph 229 of the witness statement of 藍家銘dated 1 February 2015.

11.  On 13 April 2015, the Master ordered inter alia that (a) Ds were to file/serve a table summarising their grounds for striking out the Impugned AR/WS together with estimation of time to be spent on substantive argument for each ground, (b) within 14 days of receipt of the table in (a) above Ps were to apply for affidavit evidence (if so required) otherwise they would be debarred from adducing any affidavit evidence for Ds’ 4^th Summons, (c) if no such application was made then no further affidavit evidence was to be filed by any party, and (d) within 14 days of receipt of the table in (a) above Ps were to give their estimation of time to be spent on substantive argument of each ground for striking out. Ps did not apply to file affidavit evidence but they provided their time estimations, so on 17 June 2015 Ds filed the table in (a) above that incorporated Ps’ time estimations (“Ds’ Table”).

12.  On 24 June 2015, the Master scheduled the substantive hearing of Ds’ 4^th Summons to be heard on 19-20 November 2015.

13.  The CMC was scheduled to be heard on 22 July 2015. Ps’ LQ filed on 20 July 2015 confirmed (a) their pleadings were in order and did not require amendment, (b) they did not intend to take out any other interlocutory application, and (c) it was appropriate in all the circumstances to set the case down for trial. On 21 July 2015, the Master adjourned the CMC to be heard immediately after the disposal/determination of Ds’ 4^th Summons. On 11 and 13 November 2015, Ps and Ds respectively filed their LQs. Ps’ LQ again confirmed the matters in (a)-(c) above.

14.  At the substantive hearing for argument for Ds’ 4^th Summons on 19 November 2015, Ps orally applied to re-amend the AR. The Master declined to entertain such unformulated oral application, so he adjourned Ds’ 4^th Summons and CMC for substantive hearing with 2 days reserved in consultation with counsel’s diary, and directed Ps to take out application for leave to re-amend the AR supported by affidavit to explain the reasons why such application was necessary at that stage. The Master further directed such summons (if made) to be heard together with Ds’ 4^th Summons, but Ds had to state whether they would oppose such summons, and if so, to give brief grounds of their objections with estimation of time to be spent on argument.

15.  On 2 December 2015, Ps filed a summons (“Ps’ 4^th Summons”) to seek leave to re-amend the AR in the manner marked in green as per the draft annexed to such summons (“RAR Draft”). On the same day, Ps filed the affidavit of their solicitor Lau Kwok Fai (“Lau”) (“Lau Aff”) in support. On 4 January 2016, the Master directed inter alia that Ps’ 4^th Summons, Ds’ 4^th Summons and CMC be heard before him on 13-14 April 2016 with 2 days reserved, and no further affidavit evidence be filed without leave of the court.

16.  On 5 April 2016, Ps filed their LQ. Just before the hearing on 13-14 April 2016, Ps by their counsel’s skeleton submissions dated 11 April 2016 stated that upon review of the case Ps were willing to voluntarily withdraw the witness statements of 黃琪成 and 葉秀華 both dated 2 December 2012, the witness statement of 何俊文 dated 31 January 2015, the witness statements of 何雪玲, 周康傑 and 許鳳蓮 all dated 1 February 2015, and paragraphs 51-53 and 255 of the witness statement of 藍家銘 dated 1 February 2015. Since Ds had no objection to such withdrawal, the Master eventually granted leave for Ps to withdraw such witness statements (in whole or in part), and ordered they be expunged from the court record (see paragraph 18(b)(ii) below).

17.  On 14 April 2016, Ds submitted and served revised grounds for striking out parts of various witness statements filed by Ps (“Ds’ Revised Table”) as follows:

(a) matters relating to “the Church”, ie “the Lord Jesus Christ Church (主耶穌基督教會), a family church with orthodox Christianity belief”[7] – paragraph 3 of the witness statement of 曾慶恒 dated 1 February 2015, paragraphs 4-7 of the 2^nd witness statement of 黃梓琳 dated 1 February 2015, and paragraphs 4-28, 54-60, 67-70, 77-79, 228 and exhibit NKM 14 of the witness statement of 藍家銘 dated 1 February 2015;

(b) biblical references – paragraphs 8, 14 and 17-18 of the 2^nd witness statement of 袁愛琼 dated 1 February 2015, paragraphs 47-50 of the 2^nd witness statement of 黃梓琳 dated 1 February 2015, paragraph 92 of the 2^nd witness statement of 鍾明宇 dated 1 February 2015, and paragraphs 29-53, 143, 148-150 and 165 of the witness statement of 藍家銘 dated 1 February 2015;

(c) consequent upon striking out of paragraph 14(1)(d) of the AR (if granted) – paragraphs 224-226 of the witness statement of 藍家銘 dated 1 February 2015;

(d) if parts of the witness statement of 藍家銘 in (a)-(b) above were struck out then other witnesses would not be able to adopt the same – paragraph 2 of each of the 2^nd witness statements of 袁愛琼, 鍾明宇 and 黃梓琳 and the witness statements of 周筱穎, 黃溢軒 and 葉國基 all dated 1 February 2015.

The main focus of Ds’ complaints concerned 2 matters: (i) “the Church” (see (a) above) and (ii) the biblical references (see (b) above).

18.  After hearing arguments, on 14 April 2016 the Master granted inter alia the following order (“Master Order”):

(a)	in respect of Ps’ 4th Summons,
	(i)	Ps’ application to re-amend paragraphs 9(1)-(3) of the AR be dismissed save and except that leave to re-amend was granted for the following:
		(1)	insertion of the words “neither the 1st or 2nd Plaintiff, nor any of the Plaintiffs herein, is or was at all material times a member of any” after the words “As to paragraph 10(1),” in paragraph 9(1);
		(2)	deletion of the words “there is no such” in paragraph 9(1);
		(3)	deletion of paragraph 9(1)(d);
		(4)	deletion of the words “since the Group does not exist,” in the first sentence of paragraph 9(2)-(3);
	(ii)	leave to Ps to re-amend paragraphs 9(4), 9(7) and 9(8) of the AR in the manner marked in green as per the RAR Draft;
(b)	in respect of Ds’ 4th Summons,
	(i)	the following paragraphs of the AR be struck out and Ps do file the Re-Amended Reply that showed such parts were struck out:
		(1)	paragraph 14(l)(d);
		(2)	the words “Be that as it may, the casting out of demon is something that has a solid biblical basis and not necessarily something mysterious or non-orthodox” in paragraph 14(3)(b);
		(3)	paragraph 14(3)(f)(i)-(iii);
		(4)	paragraph 14(3)(g)(i);
		(5)	paragraph 14(3)(h)(iii);
		(6)	paragraph 14(3)(k)(ii) and (iii);
	(ii)	leave for Ps to withdraw the witness statements of 黃琪成 and 葉秀華both dated 2 December 2012, the witness statement of 何俊文 dated 31 January 2015, the witness statements of 何雪玲, 周康傑 and 許鳳蓮 all dated 1 February 2015 and paragraphs 51-53 and 225 of the witness statement of 藍家銘 dated 1 February 2015, and such statements shall be expunged from the court’s record;
	(iii)	the following paragraphs of the following witness statements be struck out:
		(1)	the words starting from “「主耶穌基督教會」(下稱“教會”)” to “鍾明宇的性格和處事作風，還有” of paragraph 2 of the witness statement of 周筱穎 dated 1February 2015;
		(2)	the words starting from “「主耶穌基督教會」(下稱“教會”)” to “鍾明宇的性格和處事作風，還有” of paragraph 2 and the whole of paragraphs 8, 14, 17 and 18 of the 2nd witness statement of 袁愛琼 dated 1 February 2015;
		(3)	paragraph 3 of the witness statement of 曾慶恒 dated 1 February 2015;
		(4)	the words starting from “「主耶穌基督教會」(下稱“教會”)” to “鍾明宇的性格和處事作風，還有” of paragraph 2 of the 2nd witness statement of 黃梓琳 dated 1 February 2015;
		(5)	the words starting from “「主耶穌基督教會」(下稱“教會”)” to “鍾明宇的性格和處事作風，還有” of paragraph 2 and the whole of paragraphs 4-7 and 47-50of the witness statement of 黃溢軒 dated 1 February 2015;
		(6)	the words starting from “「主耶穌基督教會」(下稱“教會”)” to “鍾明宇的性格和處事作風，還有” of paragraph 2 of the witness statement of 葉國基 dated 1 February 2015;
		(7)	the words starting from “「主耶穌基督教會」(下稱“教會”)” to “鍾明宇的性格和處事作風，還有” of paragraph 2 and the whole of paragraph 92 of the 2nd witness statement of 鍾明宇 dated 1 February 2015;
		(8)	paragraphs 4-60, 67-70, 77-99, 143 and 148-150, part of paragraph 165 starting from “[民數記]” until the end of the paragraph, paragraphs 224 and 226, the heading above paragraph 228, and the last sentence of paragraph 228 starting from “詳見” until the end of that paragraph including exhibit NKM14 of the witness statement of 藍家銘dated 1 February 2015;
(c)	costs of and occasioned by Ps’ 4th Summons and costs of Ds’ 4th Summons, including all costs reserved and costs of the hearing on 13-14 April 2016, be to Ds payable forthwith by Ps with certificate for counsel (“Costs Order”).

19.  For Ps’ 4^th Summons, Ds took no issue over the proposed re-amendments in the preamble of paragraph 9(1) and paragraphs 9(1)(d), 9(2)-(4) and 9(7)-(8) in the RAR Draft that essentially alleged “the Group” did not exist, and the Master allowed such re-amendments (see paragraphs 18(a)(i)(1)-(4) and 18(b) above).

20.  The Master disallowed the proposed re-amendments in paragraphs 9(1)(a) and 9(2)-(3) in the RAR Draft (“Disputed Re- amendments”) (see paragraph 18(a)(i) above), which essentially alleged “the Church” (see paragraph 17(a) above) as used in the RAR Draft was synonymous with “the Group”, ie “a religious group which is associated with the name and/or term “真理天城” as averred in the AD[8] save and except Ps denied the Church had/has any association with the name/term “真理天城”.

21.  On 27 April 2016, Ps filed Notice of Appeal to Judge in Chambers against the Master Order, and sought the following reliefs (“Appeal”):

(a) the Master Order be set aside;

(b) Ps’ application to re-amend paragraphs 9(1)-(3) of the AR in the manner marked in green as per the RAR Draft be allowed in full;

(c) D’s 4^th Summons be dismissed;

(d) costs of and occasioned by Ps’ and Ds’ 4^th Summonses, including costs of the hearing below and of the Appeal, be to Ps to be taxed if not agreed and paid forthwith.

22.  On 10 and 11 May 2016, Ps and Ds respectively filed their LQs. Upon the parties’ joint application, on 12 May 2016 the Master granted an order by consent that (a) the witness statements of 周筱穎, 曾慶恒, 黃溢軒, 葉國基 and 藍家銘 and the 2^nd witness statements of 黃梓琳, 袁愛琼 and 鍾明宇 all dated 1 February 2015 be expunged from the court record, and (b) fresh statements of 周筱穎, 曾慶恒, 黃溢軒, 葉國基 and 藍家銘 and fresh 2^nd statements of 黃梓琳, 袁愛琼 and 鍾明宇 without the words/passages struck out under the Master Order be filed/served within 14 days, but (c) compliance with the above directions be stayed until 14 days after disposal of the Appeal. The CMC scheduled to be heard on 13 May 2016 was also vacated.

23.  On the same day, the Master assessed the quantum of costs under the Costs Order at the agreed sum of $280,000.

24.  To date, Ps failed to file/serve the Re-Amended Reply.

II. AFFIDAVIT EVIDENCE FOR Ds’ 4^TH SUMMONS

25.  Cheung noted a plaintiff in a defamation action must prove the impugned words/statements are defamatory, but he must first identify their meaning as reasonably understood by ordinary people using general common sense, which may include inferences/implications or indirect meanings that do not require the support of extrinsic facts or special knowledge. Cheung complained that by putting in issue various biblical references/meanings the Impugned AR sought to introduce extrinsic facts to establish the meaning of the allegedly defamatory Words and to request court’s adjudication on the truth of religious belief, both of which were impermissible. Thus, the Impugned AR (a) disclosed no reasonable cause of action, (b) was scandalous, frivolous or vexatious and/or (c) might prejudice, embarrass or delay the fair trial of the action, so they ought to be struck out.

26.  Cheung alleged the Impugned WS contained statements of information, belief and/or expression of opinion and also biblical references, which were not admissible. Further, Ps only had leave to serve “additional and/or supplemental witness statement(s) as to fact in reply”, but the Impugned WS were not in reply to Ds’ supplemental/further witness statements of Ngai, Tam, Tse, Pang and/or Yeung. Thus, the Impugned WS (a) contained inadmissible evidence, (b) was scandalous or irrelevant, and/or (c) was otherwise oppressive, so they ought to be struck out.

III. AFFIDAVIT EVIDENCE FOR Ps’ 4^TH SUMMONS

27.  Lau claimed that prior to the 2^nd PTR Ds had only served 4 witness statements, ie 3 statements by Ds’ employees mainly on compilation of the Article, and a 2-page pre-printed and pro-forma statement by Ngai who was an ex-member of “the Church” that merely adopted what was stated in the Article. It was said Ds’ case prior to the 2^nd PTR fell squarely within the four corners of the Article.

28.  At the 2^nd PTR, despite Ps’ objections, leave was granted for Ds to amend their Defence and to serve 5 more witness statements (but some parts of the proposed drafts were redacted/disallowed) with consequential directions, which led to vacation of the original trial dates. On 29 October 2014, Ds filed/served the AD (which Lau said went beyond the scope of the Article to cover new substantial matters) as well as the 2^nd witness statement of Ngai and the witness statements of Tse, Pang, Yeung and Tam (which Lau said covered new substantial matters “apparently in support of [Ds’] allegation that [Ps] were a religious cult”). Lau claimed “[the] religious group of which [Ps] were members was for the first time described in pleading and witness statements as a religious cult”. At the CMC on 21 January 2015, the Master inter alia required Ps to serve their AR and additional/supplemental witness statements in reply by 4 February 2015, and directed the parties to take out all interlocutory applications by 31 March 2015 (and no further interlocutory application be made after that day without his leave). On 4 February 2015, Ps filed/served the AR and additional witness statements.

29.  Lau claimed Ps did not take out any interlocutory application at that stage as they genuinely considered they were ready for trial and indeed wished to have the present action set down for trial again. But Ds filed Ds’ 4^th Summons on 1 April 2015 to strike out parts of AR and parts of Ps’ additional/supplemental witness statements. During the substantive hearing of Ds’ 4^th Summons on 19 November 2015, the Master made observations (as understood by Ps’ legal representatives) to the effect that the AD referred to “the Group” and the AR referred to “the Church”, but the pleadings did not expressly equate “the Church” as “the Group”, so the pleas in the AR on the former might be irrelevant. Lau suggested this was the “first time that such a possible pleading problem occurred to [Ps]” as (a) “[hitherto], both parties had apparently treated “the Church” and “the Group” as being synonymous terms, employed by [Ps] and [Ds] respectively, to refer to the religious body of which the [Ps] herein were members”, and (b) Ds did not raise such point in D’s Table as a ground for striking out the AR. Ps therefore wished to re-amend the AR to remove any possible confusion caused by the use of  “the Group” and “the Church” in the pleadings, and the hearing of Ds’ 4^th Summons was adjourned for Ps to take out Ps’ 4^th Summons. Lau urged the court to grant leave for Ps to re-amend the AR “as the need to amend did not occur to [Ps] until the hearing on 19 November 2015, and [Ds] would suffer no prejudice by reason of the proposed amendment, which is merely technical in nature”.

IV.  LEGAL PRINCIPLES

(a)  Appeal from Master’s decision

30.  It is trite that an appeal from the master to judge in chambers is dealt with by an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time. The judge will give the weight it deserves to the previous decision of the master; but he is in no way bound by it.[9]

(b)  Striking out pleadings

31.  Ds’ 4^th Summons was made under Order 18 rule 19 of the Rules of the High Court (“RHC”) [10] and the inherent jurisdiction of the court. The principles governing striking out applications are well established. Hong Kong Civil Procedure 2018 provides as follows:[11]

“…... It is only in plain and obvious cases that the court should exercise its summary powers to strike out the indorsement on any writ or any pleading under this rule. There should be no trial upon affidavit. Disputed facts were to be taken in favour of the party sought to be struck out. Nor should the court decide difficult points of law in striking out proceedings. The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out. ……

Plain is not the same as simple and obvious is not the same as short. …… The mere fact that the case is weak and not likely to succeed is no ground for striking it out ……

It is for the party seeking to strike out an indorsement or pleading to demonstrate that the case is a plain and obvious one in which the other party’s claim is bound to fail. ……”

But the fact a question of law appears difficult/obscure does not necessarily preclude the court from striking out a claim if it is satisfied it has all the necessary information to decide the question, and has come to the conclusion after full argument in the face of all relevant information that the case is plainly and obviously one for striking out. In such circumstances, the court “should not decline to do so on the ground that the issues are difficult or complicated”.[12]

32.  In respect of the ground of no reasonable cause of action, a reasonable cause of action means “a cause of action with some chance of success when only the allegations in the pleading are considered ……”[13] In respect of the ground that the plea was frivolous or vexatious,  Hong Kong Civil Procedure 2018 states that:[14]

“…… A proceeding is frivolous when it is not capable of reasoned argument, without foundation or where it cannot possibly succeed. A proceeding is vexatious when it is oppressive and/or lacks bona fides.

In Yifung P roperties Ltd v. Manchester Securities Corp, (unrep., HCA1341 and 1359/2014, [2015] H.K.E.C. 2182), Au Yeung J stated:

12. … Where a litigant brings a claim knowing that there is no substance in it or that it is bound to fail, or if the claim is on its face so manifestly misconceived that it can have no prospect of success, it may be deemed frivolous and an abuse of process …… the court should see what the party in question knew or ought to have known if he had gone about the matter seriously ……

13. … Vexatiousness implies the doing of something over and above that which is necessary for the conduct of the litigation and suggests the existence of some spite, or desire to harass the other side to the litigation, or some other improper motive ……

14. To decide that the litigant has been frivolous or vexatious and thus abused the process of the court is a serious finding to make, for it will generally involve bad faith on his part and one would expect the discretion to be sparingly exercised.[15]

In exercising a judicial discretion to determine whether proceedings are vexatious …… the court may admit affidavit evidence ……”

(c)  Striking out witness statements

33.  Order 38 rule 2A(8) of the RHC provides that nothing in this rule shall make admissible evidence that is otherwise inadmissible. Thus, the court has discretion to expunge witness statement or parts thereof on the grounds that such statement evidence is inadmissible because it is irrelevant, scandalous, oppressive and/or embarrassing.[16]

34.  In Re Linea Trading Company Limited, Barma J (as he then was) summarised the legal principles on striking out affidavits under Order 41 rule 6 of the RHC as follows:[17]

“4. The principles on which the court acts when considering whether or not to strike out matters in an affidavit pursuant to the rule were not, I think, seriously in dispute. For present purposes, I summarise them as follows:-

(1) Scandalous has the same meaning in Order 41 rule 6 as it does in Order 18 rule 19 dealing with the striking out of pleadings. Thus, degrading, indecent and offensive charges made in an affidavit will be regarded as scandalous if they are irrelevant or inadmissible in evidence to prove any material allegation in the petition (see eg Cashin v Cradock (1877) 3 Ch 376; Christie v Christie (1873) LR 8 Ch App 499, in the context of striking out a pleading);

(2) Matters which are material will not generally be struck out even if they are offensive, although where unnecessary detail is given, that may be susceptible to being struck out (see e.g. Blake v Albion Assurance Society (1846) 45 LJCP 663, also in the context of striking out of pleadings).

(3) Irrelevant matter may be struck out even if not scandalous (Re J (An Infant) [1960] 1 All ER 603).

(4) It is wrong to include argumentative material in affidavits and such material may be struck out (see eg Deak v Deak Perera Far East Limited [1991] 1 HKLR 551).

(5) The court may take one of three approaches to an affidavit in which there is scandalous, irrelevant or oppressive matter:-

(a) It may decline to strike the matter out, on the basis that it is capable of excluding such material from its mind when deciding the issues which arise for decision; or

(b) It may think it appropriate to strike out some or all of the material complained of; or

(c) It may, in an extreme case, order the entire affidavit to be taken off the court file.

Which of these courses is adopted will depend on the circumstances of the case, regard being had to the nature and extent of the objectionable material.”

I agree with Mr Ho, counsel for Ds, that generally speaking these principles apply mutatis mutandis to striking out of witness statements. Irrelevant and/or inadmissible evidence in witness statements are liable to be struck out as otherwise it will lead to embarrassment and unnecessary confusion, and it will also be a waste of time/effort for the other party to respond to it.

V. EXISTING PLEADINGS

35.  In the present action, Ps sued Ds for libel in respect of the Article published in the 1088^th issue of the Magazine on 13 January 2011.  The Article was a cover story titled “換妻邪教” with the Words and Photos on the cover, contents and inside pages that Ps claimed were defamatory of them in their natural and ordinary sense. Ds claimed it was a piece of investigative journalism; they denied Ps’ claim and put forward various defences, including justification, fair comment and Reynolds privilege.

(a)  ASoC

36.  In the ASoC, Ps pleaded that (i) Ds deliberately printed/ published or caused to be printed/published the Article in the Magazine, (ii) the Article and Photos were understood and meant to refer to them, and (iii) no less than 42 phrases/sentences/passages of the Words were grossly defamatory of them in their natural and ordinary meaning. I shall adopt but not repeat here the summary in paragraph 40 of the Reasons in respect of P’s pleas as to the natural and ordinary meaning of the impugned Words, and highlight below only a few of the pleaded “natural and ordinary meaning” of the Words:

(a) “[Ps] were found to be believers and/or otherwise were involved in or associated with a religious denomination under the name of “真理天城教派” (English Translation: “the Heavenly Kingdom of Truth Denomination”) (“the Cult”)”;[18]

(b) “[the] Cult was a heretical religious cult similar to “The Children of God” famous for their fornication”;[19]

(c) “[the] Cult targeted on young people and was at the material time active in the district of Tai Po”;[20]

(d) “[the] Cult was at the material time practicing promiscuous gatherings and heretical religious rituals namely oil anointment redemption (身體搽油) rituals for the female believers, and wife switching (換妻) and marriage rearrangement (配婚) practices ……”;[21]

(e) “[P1] was the hierarch of the Cult and [P2 to P12] were his followers or otherwise under his influence”, and “P2 was a prophetess in the Cult”.[22]

The Words and their “natural and ordinary meaning” as pleaded in paragraphs 15 and 17 of the ASoC only referred to the Cult being “真理天城教” [23] or “真理天城教派”,[24] and not “the Church” as described in paragraph 17(a) above at all. P went on to plead that by reason of the publication of the Words they suffered damage to their reputation, and they were distressed/embarrassed.  They also asked for injunctive relief and loss/damages, including aggravated and/or exemplary damages and special damages being P1’s loss of income.

(b)  AD

37.  Since the Cheung Aff alleged P’s 4^th Summons was triggered by the AD referring to “the Group” and the AR referring to “the Church”, I shall revisit the Defence (summarised in paragraphs 41-43 of the Reasons) that was subsequently amended to become the AD.

38.  Ds denied the Article referred to Ps or it had been or could have been shown to have been published to persons who knew P3 to P12.  But if, which was denied, the Words were understood to refer to the Ps, Ds denied the Words in their natural and ordinary meaning and in their proper context bore any of the meanings set out in paragraph 15 of the ASoC.  But if the Words bore or were understood to bear or capable of bearing the meaning in paragraph 15 of the ASoC, Ds relied on the defences of justification, fair comment and Reynolds privilege.

39.  For the justification defence, Ds pleaded under “Particulars of meaning” (“Meaning Particulars”) in paragraph 10 of the AD (“Para 10 / AD”) “meaning” of the Words in the natural and ordinary sense set out in (a)-(m) below that was said to be true in substance and in fact, and if necessary Ds would rely on section 26 of the Defamation Ordinance Cap 21:

(a)	there was a religious group associated with the name/term “真理天城” (ie the Group);[25]
(b)	the Group was a religious cult, and had a large number of young members;[26]
(c)	P1 and P2 were respectively a leader and a member of the Group;[27]
(d)	(i) P1 admitted he was a deacon (執事) of the Group, and (ii) P2 admitted she was a prophetess (先知) of the Group;[28]
(e)	P1 and P2 exercised a high degree of control and/or influence over the private lives of certain former members of the Group;
(f)	P1 and/or P2 made suggestions and/or gave advice to members of the Group, including in respect of members’ romantic relationships;
(g)	the Group practised wife switching (換妻) and marriage matching (配婚), and P1 and P2 were involved and/or otherwise associated with such practices;[29]
(h)	P1 and P2 used religious theories and prophecies to delude certain former (and/or present) members of the Group into wife changing (換妻) and/or marriage matching (配婚);
(i)	P1 informed former members of the Group he practised marriage re-arrangement (配婚) himself with P2;
(j)	P1 denied he was the hierarch of the Group, denied the Group practised wife changing (換妻) and/or marriage matching (配婚), and refused to answer various questions when he was interviewed by D1’s reporter on 10 January 2011;
(k)	the Group hosted gatherings and religious rituals at inter alia the 1st and 2nd Premises;
(l)	one ritual practised by the Group was to dab or spread oil onto members of the Group;
(m)	an activity undertaken by members of the Group included throwing dolls up and down.

40.  Ds also relied on the defence of fair comment, ie insofar as the Words contained the following comments or expressions of opinion they constituted fair comment made in good faith and without malice on a matter of public interest[30]:

(a)    “換妻邪教”;

(b)    “「最令人震驚係呢個教派舉行配婚制度，就連已婚夫婦都要拆開重新分配，任何正統宗教派別都唔會搞配婚，連信徒私生活都操控埋，好明顯呢個教派係邪教。」離教信徒阿明[ie Ngai]道出真理天城教的黑暗面，及很多鮮為人知的荒誕行為”.

41.  Ds pleaded the following particulars of facts/matters in support of the justification defence (and relied on some of such particulars for the defences of fair comment and Reynolds privilege):

(a)	on/about late 2010, Yeung (a member of a concern group called “Concern Group on Newly Emerged Religions” (新興宗教關注事工), “Concern Group”) contacted/ informed a member of D1’s staff that the Group was a fringe Christian group which the public should be warned about;
(b)	on/about 6 January 2011, a member of D1’s staff interviewed Ngai (former member of the Group) who said when he was a member of the Group P1/P2 told him and his then fiancée to separate, and as a result he and his then fiancée broke off their relationship;
(c)	Ngai further informed a member of D1’s staff that:
	(i)	the Group had a large number of young members and some high school students,
	(ii)	P1 claimed to be a deacon (執事) of the Group, and P2 claimed she was a prophetess (先知) of the Group;
	(iii)	P1 claimed P2 was a prophetess (先知) sent by Jesus who would communicate directly with P2;
	(iv)	P2 claimed she had special power and could read a person’s spiritual level (屬靈程度);
	(v)	P1 claimed P2 and P2’s son Chow Hong Kit (周康傑) possessed the spirit (靈) of angels (天使), Jesus would communicate directly with P2, and the Holy Father (天父) would communicate directly with P2’s son Chow Hong Kit (周康傑);
	(vi)	P1/P2 claimed they would become the Millennium King and Queen of Hong Kong (千禧年的香港皇及香港后);
	(vii)	P1/P2 exercised high degree of control/influence over the private lives of certain former members of the Group;
	(viii)	the Group practised the casting out of demon;
	(ix)	the Group practised wife changing (換妻) and/or marriage matching (配婚), and P1/P2 were involved and/or otherwise associated with such practices;
	(x)	P1/P2 used religious theories and prophecies to delude certain former (and/or present) members of the Group into wife changing (換妻) and/or marriage matching (配婚);
	(xi)	P1 informed former members of the Group he practised marriage matching (配婚) himself with P2, and informed inter alia Ngai he practised wife matching (換妻) with P2;
	(xii)	P1 practised wife changing (換妻) and/or marriage matching (配婚) on inter alia Pong and Tam;
	(xiii)	in/about 2007 P1 told Ngai it was the will of God for him to marry Jess or Shirley (who were members of the Group at the material time);
	(xiv)	P1 informed inter alia Ngai the spirits (靈) of the Twelve Chosen (十二揀選) were within the Group;
	(xv)	P1/P2 organised a rapture (to return to heaven (被提)) trip for the Group, and P1 asked members of the Group (including Ngai and Pang) to draw up a last will before departure for the rapture trip;
	(xvi)	Ngai and Pang (who were members of the Group at the material time) took part in such rapture trip;
	(xvii)	P1/P2 invited 2 high school students to attend the rapture trip, asked them to skip school for such purpose, and asked them to prepare a last will (遺書) before their departure;
	(xviii)	Ngai, Pang, Tam (a member of the Group at the material time) were cast away from the Group after last judgment (最後審判) by P2 and her son, who at that time claimed to be possessed by Jesus and the Holy Father respectively;
	(xix)	Tam was admitted to hospital as a result of her being cast away from the Group by P2;
	(xx)	Ngai further provided various emails between Ps and himself to the member of D1’s staff;
(d)	on/about 7 January 2011, members of D1’s staff attended the 1st Premises, which they identified from a photograph of a meeting place of the Group obtained in/around late December 2010 from a member of the clergy, who also provided a photograph of P1/P2 and identified them as persons associated with the Group;
(e)	on/about 8 January 2011, members of D1’s staff again attended the 1st Premises and saw P1/P2 entered such premises, and they later followed P1, P2 and other persons (who left the 1st Premises) first to a restaurant and then to the 2nd Premises;
(f)	upon observation of the 2nd Premises, a member of D1’s staff saw a member of the Group throwing a doll up and down repeatedly at the 2nd Premises;
(g)	on/about 10 January 2011, a member of D1’s staff conducted an internet search of P1’s name, located P1 (who was a teacher at a school in Shatin) and interviewed him, and during the interview P1 said:
	(i)	the Group was affiliated with a website entitled/known as “真理天城”, ie the Website;
	(ii)	P1 was a founder and deacon (執事) of the Group and had a supervisory role;
	(iii)	P2 was also a member and prophetess of the Group, and P1/P2 worked together within the Group;
	(iv)	one ritual practised by the Group was to dab/spread oil onto members of the Group;
	(v)	P1 and other members of the Group made suggestions and/or gave advice to members of the Group regarding their romantic relationships.

42.  Ds also averred the Article (of which the allegedly defamatory Words formed part) was published on an occasion of qualified privilege, and if necessary they would rely on section 27 of the Defamation Ordinance Cap 21:

(a)	the Article was about matters of public interest and general concern/interest as “they relate to an active fringe Christian group, adopting questionable religious practices, and the public should be informed of it”;
(b)	the journalistic investigation which led to the publication of the Article was prompted inter alia by information provided by the informants Yeung and Ngai;
(c)	as to the other information contained in the Article, Ds repeated all particulars in paragraph 39(a)-(m) above, and averred such information was considered to be reliable and credible;
(d)	as to the comments contained in the Article, Ds repeated paragraph 40 above, and averred such comments were fair, honest and supported by true/credible facts;
(e)	reasonable steps had been taken prior to publication of the Article to put the information to P1 for his response, and P1’s response was accurately reported in the Article;
(f)	the Article was published on the date of publication because the subject matter had become one of current concern and had attracted wide public attention;
(g)	so Ds were under a moral/social duty to publish or cause the publication of the Article, and the public had a corresponding legitimate interest to read the same, or further or alternatively the publication of the Article to the world at large was in the public interest.

(c)  AR

43.  The AR traversed many of the facts/matters pleaded in the AD that helped to elicit the disputed issues for the trial of the present action. In the AR, Ps averred the Words/Photos depicted Ps, and (a) by reason of the small number of believers associated with “the alleged Cult” Ps could be readily identified and referred to as believers of “the alleged Cult”, [31] (b) other persons (including relatives, friends and neighbours residing in/around San Tau Kok Village, Tai Po) were able to identify and refer to P9, P11 and P12 from the references to their English names alongside a reference to and a Photo of their residence at the 1^st Premises in the Article and those readers would be able to identify/refer to P10 as P9’s wife, and (c) by reason of a reference to and a Photo of their residence at the 2^nd Premises together with the Photos depicting P3 and P4 in the Article, other persons (including relatives, friends and neighbours residing in/around Fu Shin Estate, Tai Po) would be able to identify and refer to P3 and P4 after reading the Article.

44.  In reply to the justification defence, Ps denied the Words in their natural and ordinary meaning merely bore the meanings Ds alleged. Ps reiterated their pleas in the ASoC, and further averred that:

(a)   the repeated/prominent use of the phrase “換妻邪教” at the cover, contents and inside pages of the Magazine and the characterisation of “the alleged Cult”[32] as an equivalent of “淫亂盛名的「天父的兒女」” were intended/calculated to convey the message, and strongly suggested and/or gave the impression, that Ps (in particular P1/P2) were engaged in wife- switching (“換妻”) adult sexual activity and/or evil/immoral behaviour involving “換妻” rather than merely making suggestions and/or giving advice to members of the Group in respect of their romantic relationship, and this was borne out by repeated suggestions in the Article that P1 would “埋手” young female believers and wives/companions of male believers and “配婚” them to his heelers and henchmen;

(b)   references in the Article to “男教主除了替女信徒身體搽油驅鬼，搞荒誕淫亂聚會外”, “犯咗淫邪罪嘅姊妹會企响圓圈內，接著Chris便用橄欖油替女信徒塗抹”, “「要換睡袍搽面?係唔係最後要搽埋全身?」記者追問阿明，阿明聽後滿臉漲紅不願作答，然後表示這些怪誕儀式並不是最可怕”, and “不少女信徒深信Chris有超能力，能看出她們犯過「淫邪」罪，故亦甘願接受Chris對她們的懲罰及救贖” etc were intended/calculated to convey the message, and strongly suggested and/or gave the impression, that Chris (ie P1) anointed oil over the whole naked body of female believers and engaged in such indecent and promiscuous acts under the false name of religious practices.

45.  Ps also denied the meaning of the Words under the Meaning Particulars was true in substance and in fact by reiterating their pleas in the ASoC and by further averring as follows:

(a)	there was no such “religious group associated with the name and/or term “真理天城” or 「真理天城」教派 (the Heavenly Kingdom of Truth Denomination), ie the Cult”,[33] and instead:
	(i)	Ps were all members of “the Lord Jesus Christ Church (主耶穌基督教會), a family church with orthodox Christianity belief (“the Church”)”;[34]
	(ii)	the Church was not a heretical religious cult;
	(iii)	the words “真理天城 (the Heavenly Kingdom of Truth Denomination)” were the name of the Website and save and except that some editors of the Website (including P1) were members of the Church, the Website had no direct/official relationship with the Church;
	(iv)	“[in] the premises, the alleged Group does not exist”;[35]
(b)	since the Group did not exist, P1 and P2 were not respectively the leader and member of the Group, and in the Church all members were equal “弟兄姊妹” and the position of “教主” never existed;[36]
(c)	since the Group did not exist, P1 was not a deacon (執事) of the Group but was one of the two elders (長執制度下兩位長老) of the Church;[37]
(d)	since the Group did not exist, P1/P2 did not make suggestions and/or give advice in respect of romantic relationship of members of the Church, but the Article repeatedly suggested P1 was involved in wife switching (換妻), laid his hands (埋手) on young married female believers and “配婚” them to his heelers and henchmen;
(e)	the supporting incident cited in the Article concerning P1/P2 was untrue in that:
	(i)	P1 did not promote P2 as a prophetess (let alone doing so for the purpose of staying with her) and under orthodox Christianity faith/belief the word “prophet” (先知) connoted an ability rather than a position which could be promoted;
	(ii)	P1 divorced his ex-wife due to their difference in values which had nothing to do with the subsequent relationship/marriage between P1 and P2 (the latter of whom was already divorced before she participated in religious gatherings of the Church);
(f)	the supporting incident cited in the Article concerning P11/P12 was untrue in that:
	(i)	when an ex-member of the Church referred to as “Peter” in the Article indulged himself by watching videos of sexual violence on the internet and asked his wife P12 to do so, several members of the Church (including P1) counselled Peter;
	(ii)	due to Peter’s continued defaults, eventually he was no longer admitted to further gatherings of the Church;
	(iii)	in the end P12 decided out of her own accord to divorce Peter, and she subsequently married P11;
	(iv)	such marriage was a voluntary one between P11 and P12;
(g)	the supporting incident cited in the Article concerning Ngai was untrue in that:
	(i)	Ngai was single when he became a member of the Church;
	(ii)	subsequently he met his girlfriend and sought assistance from the Church due to their differences in their religious beliefs;
	(iii)	Ngai and members of the Church introduced Ngai’s girlfriend to the Church’s gatherings, but she eventually ceased to attend such gatherings;
	(iv)	since then Ngai experienced doubts in his religious belief, and P1 and three other male members of the Church discussed with Ngai and told him it might be more desirable for him to quit the Church and attend the gatherings of his girlfriend’s church if he wished to maintain his relationship with her instead of putting himself into a dilemma and questioning his religious belief;
	(v)	Ngai chose to stay with the Church and broke up with his girlfriend;
	(vi)	the Church, P1 and/or the three male members of the Church did not ask Ngai to break up with his girlfriend, and they only counselled Ngai out of concern and with a view to assist him in his religious belief;
	(vii)	since Ngai’s girlfriend ceased to participate in the Church’s gatherings a year before Ngai’s own departure from the Church, there was no basis to suggest she might allegedly be “配婚” to other members of the Church;
(h)	in any event, many members of the Church were already married when they joined the gatherings of the Church, and they remained as married couples, so there was no truth in the repeated suggestions in the Article that P1 targeted young married women, disrupted their existing marriages, and “配婚” them to his heelers, henchmen or trusted subordinates;
(i)	since the Group did not exist, Ps as members of the Church did not practice the ritual of dabbing/spreading oil onto other members of the opposite sex as alleged in the Article; if there was any need for the anointing of oil on a female member of the Church as a ritual performed for curing diseases as referred to in the Gospel of Mark, Chapter 6, verses 12-13, it would only be administered by another female member or her partner by anointing oil on the forehead or the part of the body affected by diseases, and apart from his wife P2 and male members of the Church P1 had never anointed oil on other female members of the Church;
(j)	Ps denied they (in particular P1) or the Church had ever held any promiscuous gatherings, wife switching (換妻) or wife bethothing or marriage rearrangement (配婚) activities as alleged in the Article;
(k)	since the Group did not exist, Ps as members of the Church did not have any religious ritual, practice or activity involving throwing dolls up and down, and the covert surveillance of the 2nd Premises by D1’s reporter from an opposite building during the night of 8 January 2011 and the taking of close-up photographs of such private residence constituted blatant/illegitimate invasion of privacy;
(l)	during the night of 8 January 2011, P1 and a few members of the Church attended the 2nd Premises (ie the residence of P3/P4) for a social gathering and no religious ritual was practised; the Photo in the Article only showed P4 holding a doll to play with her dog (so it was untrue to suggest an activity of the members of the Church included throwing dolls up and down), and P4, who was pregnant at that time, turned off the lights and went to bed early whilst other members of the Church who paid a visit to P3 and P4 that night left at/about 10-11pm.

46.  Ps admitted the Words in their natural and ordinary meaning bore or were understood to bear the meanings set out in paragraph 39, 39(b), (d)(i), (e) and (g)-(i) and (k) above. In respect of the meaning in paragraph 39(j) above, Ps repeated that the Words in their natural and ordinary meaning bore or were understood to bear the meaning in paragraphs 39(b), (d)(i), (e) and (g)-(i) and (k) save and except that P1 in fact denied to D1’s reporter “the Church” practised wife switching and marriage matching/rearranging, not that he denied “the Church” “does not practise” wife changing and marriage matching. Ps claimed the “meaning” Ds pleaded in paragraph 39(b), (d)(i), (e), (g)-(j) and (k) above amounted to admission of Ps’ contentions in paragraph 44 above, but they were not true in substance and in fact (see paragraph 45 above).

47.  Ps denied the justification defence or any reliance on section 26 of the Defamation Ordinance Cap 21.  As regards the facts and matters Ds pleaded that went to the justification defence, Ps averred that:

(a)	in respect of paragraph 41(a) above,
	(i)	Ps had no knowledge of the alleged contact between D1’s staff with Yeung or anyone from the Concern Group, and was unaware of anything that might have been said by Yeung;
	(ii)	Ps denied the Church was a fringe Christian group against which the public should be warned;
	(iii)	“on the contrary, the Concern Group is and at the material time was a controversial organisation within the Christian community, which had been criticised by many Christians as being too keen to label others as cults or heresies, without due inquiries, investigations or basis, and without due regard to theological differences that may properly exist among Christians of different denominations”;[38]
	(iv)	Ds never approached the Church for comments on what Yeung or other members of the Concern Group might have said to Ds’ staff, and had Ds done so the Church would have brought the matters in (iii) above to the Ds’ attention as well as clarified the doctrines/beliefs of the Church;
(b)	in respect of paragraph 41(b) above, Ps had no knowledge of the interview of Ngai (who was a former member of the Church and not of the Group which did not exist) by D1’s staff and what Ngai might have said and what documents he might have provided to D1’s staff, Ngai never informed them his girlfriend was his fiancée, and P1/P2 or any member of the Church had not told Ngai to break up or separate with his girlfriend;
(c)	in respect of paragraph 41(c) above, P repeated their averments and added the following:
	(i)	the Church did/does not practise the casting out of demon, and “[be that as it may, the casting out of demon is something that has a solid biblical basis and not necessarily something mysterious or non-orthodox”, but members of the Church did pray for each other for protection against Satan’s temptations/deeds which was not practice of casting out of demon;[39]
	(ii)	Ps admitted there were some members of the Church who were young persons and/or secondary school students, but denied there were a large number of them, and anyway the Church was/is a family church basically comprising of family units with Christians of different age groups;
	(iii)	in reply to matters in paragraph 41(c)(ii)-(v) above, Ps denied P1/P2 ever claimed P2 was a prophetess, or P2 or her son Chow Hong Kit had any special power whether to read a person’s spiritual level or otherwise, and Ps went on to aver that: “(i) “Prophet” or “prophetess” is a position that has solid biblical basis, meaning a messenger of God. It is not a mysterious or non-orthodox concept. (ii) Being a prophet or prophetess primarily means carrying out teaching or dispensing comfort by the words of the Lord. Although the telling of prophesies may also be part of the gift of a prophet or prophetess, it was not a gift that members of the Church would particularly pursue. (iii) It is orthodox Christianity belief that the Holy Spirit dwells in every believer, and that through the Holy Spirit, as well as through prayers, every Christian has direct access to the Father and the Son. In this sense, it is biblical to say that Jesus as well as the Holy Father communicates directly with every Christian.”[40]
(d)	in respect of paragraph 41(c)(vi) above, Ps averred “[it] is a biblical prophesy, contained in The Book of Revelations, Chapter 20, that upon the first resurrection, those who take part in it shall reign with Christ for a thousand years ; this period of a thousand years is what Christians commonly call “Milleneium” (千禧年)”,[41] so P1/P2 jokingly surmised that should they be in Hong Kong at the time of the 1st resurrection they would be the king and queen respectively of Hong Kong, but such surmise was never taken seriously by any member of the Church or even by P1/P2 themselves as no one knew when the 1st resurrection is going to happen and where P1/P2 will be at the time of the 1st resurrection;
(e)	in respect of paragraph 41(xv)-(xvii) above, Ps averred that:
	(i)	Ds’ reference to the “rapture trip” was a retreat activity the Church organised for its members for 8-10 September 2010;
	(ii)	such retreat was organised for making use of the Jewish Festival of Blowing of Trumpets (吹角節) being equivalent of the Jewish New Year to encourage members of the Church to study Bible, pray and reflect that had nothing to do with “rapture”;
	(iii)	“[be] that as it may, “rapture” has a sound biblical foundation (see, for example, 1 Thessalonians 4:17). Christians believe that upon the return of Christ, those of us who “are alive and remain shall be caught up together with them in the clouds, to meet the Lord in the air; and so shall we ever be with the Lord”. This is nothing mysterious or non-orthodox at all about the belief”;[42]
	(iv)	Ps admitted that members of the Church who took part in such retreat on entirely voluntary basis included Ngai, Pang and 2 secondary school students;
	(v)	Ps averred the Church had reminded the secondary school students to seek permission from the schools in advance before joining such retreat, and denied P1/P2 or anyone in the Church asked/encouraged the secondary school students to skip school to join such retreat, and when members of the Church became aware the secondary school students had not sought permission from their respective school before skipping class to join such retreat they were rebuffed;
	(vi)	Ps admitted that in/about March 2010 members of the Church were invited to prepare “wills” which was part of a reflective exercise (ie to imagine what to say to those who would remain and what testimony to give to them if “rapture” were to happen right away) the purpose of which was to encourage members of the Church to live a true Christian life and to always prepare themselves for the return of Christ which no one could say when would happen, but this was just a suggestion, and members of the Church were free to choose whether or not to adopt the “will” or any other suitable format;
	(vii)	Ps averred the “wills” suggested to be compiled by the members of the Church were not intended to be and were not true wills, and the suggestion to compile “wills” took place about half a year before (and had nothing to do with) such retreat;
(f)	in respect of paragraph 41(xiii) above, Ps averred that on one occasion Ngai did mention to P1 and 4-5 male members of the Church he fancied dating a girl whereupon the male members of the Church jokingly said Ngai might consider dating either Jess or Shirley who were the only single female grown up members of the Church, but neither P1 nor any other member of the Church ever suggested to Ngai it was the will of God for him to marry either of them;
(g)	in respect of paragraph 41(c)(xii) above, Ps averred that:
	(i)	Pong and Tam started to date after they met at the Church and decided to get married a few months afterwards, but members of the Church cautioned them against marrying too soon (but to no avail);
	(ii)	shortly after their marriage Pong and Tam separated and divorced even though members of the Church tried to persuade them not to have a rash divorce (but to no avail), and as far as Ps knew/believed, one of the reasons for the divorce was because Tam continued to flirt with other single male members of the Church after her marriage;
	(iii)	Pong and Tam acted against the wise counsel of members of the Church, and Ps denied their marriage/divorce were the result of any wife changing or marriage matching by P1 or any member of the Church;
(h)	in respect of paragraph 41(c)(xiv) above, Ps averred that the idea of “the Twelve Chosen” was brought to the Church by Pong and not P1, and “[the] idea was that each of the twelve Apostles of Jesus has his strengths and characteristics and each of them is a good example, in different ways, for members of the Church to follow”[43] and “[there] is nothing mysterious or non-orthodox at all about the idea”[44];
(i)	in respect of paragraph 41(c)(xviii) and 41(c)(xix) above,
	(i)	Ps admitted Ngai, Pang and Tam had left the Church but denied they did so after being “cast away” after any “last judgment” either by P2, her son or any member of the Church, and further denied P2, her son or any member of the Church claimed to be possessed by Jesus or the Holy Father;
	(ii)	Ngai blamed the Church and the time he spent at the retreat for his unsatisfactory results of an examination he took shortly after the retreat, and even though some members of the Church tried to pacify and explain to him, he left the Church of his own accord and cut off all communications with its members;
	(iii)	Pang lost his job and ran into financial difficulty about a month after he joined the Church in June 2010, and the Church helped by arranging for him to live with a member of the Church and later at the Church’s premises in Tung Tsz (洞梓), Tai Po, but Pang caused noise/nuisance to another member of the Church living there, and he spread rumours against P1/Church before a foreign visitor to the Church, so members of the Church asked him to move out of the Church premises, and he left the Church in anger but of his own accord;
	(iv)	Tam falsely represented to members of the Church that she was possessed by demon and asked them to cast out the demon for her, thus creating commotion within the Church, and her conduct set a bad example to younger members of the Church, so the Church asked her to stop attending the Church for the time being whereupon she left;
	(v)	Ps had no knowledge whether Tam was admitted to hospital after she was told to stop attending the Church, but she did exhibit some strange behaviour after she left the Church (eg sending strange emails to members of the Church and kneeling on a path in the vicinity of the Church premises), and members of the Church were scared by her behaviour and did not have necessary skill/ expertise to help her, so the Church was not responsible for Tam’s condition;
(j)	Ps had no knowledge of the visit by members of D1’s staff to the 1st Premises (which was the residence of P9 to P12 that was jointly rented by P9 and the Church, and which was also a venue for religious gatherings by the members of the Church) on 7 January 2011;
(k)	the members of the Church attending gatherings at the 1st Premises were of different ages (including those of about 50 years to about 80 years), and they participated in activities common to orthodox Christianity beliefs such as singing, praying and bible reading etc, and occasionally after the religious gatherings at the 1st Premises, some members would go to the residence of P3 and P4 for social gatherings;
(l)	there was no video recording/surveillance equipment installed outside the 1st Premises, and on/about 8 January 2011 when a person knocked on the door of the 1st Premises, P9 was surprised because the 1st Premises located on the 1st floor was not accessible without passing through the main gate on the ground floor that was usually locked, and the Church had not publicly disclosed the use of the 1st Premises as a venue for religious gathering, so when P9 opened the door to the female reporter who (i) claimed to be introduced by a former member Jerry whom P9 had never heard of, and (ii) wished to join the religious gatherings at the 1st Premises, and when P9 then found another suspicious male idling at the staircase leading to the 1st floor, P9’s suspicion was roused and as a matter of prudence he asked the female to contact them through the Website, but he never told the female it was necessary to obtain P1’s approval for her to join the religious gatherings;
(m)	some members (particularly those of more advanced age) left in the course of the religious gathering that day or immediately after it, and the remaining 10 odd members went to a restaurant for dinner after which some of them attended the 2nd Premises being the residence of P3 and P4 for social gathering, but they did not know they were being covertly followed by members of D1’s staff first to a restaurant and then to the 2nd Premises and/or being covertly observed/surveyed by a member of D1’s staff from an opposite building;
(n)	on/about 10 January 2011 when P1 walked out from his school at the main gate, a reporter of D1 suddenly took repeated photographs of him and confronted/ challenged him with hostile questions, many of which were without basis and P1 was not given a reasonable chance to respond; since the reporter insisted P1 was extremely evil and P1 did not wish to jeopardise the school’s reputation, he invited the reporter to go to a nearby café so he could clarify some matters within the limited timeframe, and he drew the reporter’s attention to inter alia the distinction between the Website and the Church, clarified that the concept of casting away demon was not unknown to Christianity belief, and referred the reporter to relevant passages in the Gospel.

48.  Ps denied the words complained of by Ds constituted fair comment or comment on a matter of public interest, and claimed D1 was not entitled to rely on the defence of fair comment since the publication of the Article and Words was actuated by malice:

(a) Ps reiterated the pleas in the ASoC and AR, and claimed the Article and Words were grossly untrue and false, and D1 knew or believed what was published therein were untrue and/or they did not care whether they were true or not;

(b) excessive language was used in the Article and Words, and Ps reiterated the pleas in the AR;

(c) the Article and Words were published for the improper motive of increasing circulation of the Magazine, and Ps reiterated the pleas in the ASoC.

49.  Ps also denied the contents of the Article were matters of public interest, or Ds were entitled to the defence of qualified privilege. Ps repeated some of the matters in paragraphs 44-47 above.

VI.  Ps’ 4^TH SUMMONS

50.  The dispute under Ps’ 4^th Summons concerned Ps’ application to re-amend paragraph 9(1)(a), 9(2) and 9(3) of the AR (see paragraphs 18(a)(i) above) by the Disputed Re-amendments which had the effect of alleging that “the Church” as used in the AR (ie “the Lord Jesus Christ Church (主耶穌基督教會), a family church with orthodox Christianity belief – paragraph 9(1)(a) of the AR) was synonymous with “the Group” as used in the AD (ie “a religious group which is associated with the name and/or term “真理天城”” – see sub-paragraph (1) under the Meaning Particulars of Para 10 / AD) save and except Ps denied “the Church” had/has any association with the name and/or term “真理天城” (“Exception”).  Ds opposed the Disputed Re-amendments, which Mr Lam accepted must stand or fall together as they were premised on the same grounds/reasons.

51.  Generally speaking, all amendments of pleadings ought to be made for the purpose of determining the real question in controversy between the parties to any proceedings or for correcting any defect or error in any proceedings, and the court is not to punish parties for mistakes they made in the conduct of their cases unless it would cause injustice to the other party.[45] Both DHCJ Lok (as he then was) in Li Shiu To v Li Shiu Tsang & ors[46] and Recorder Horace Wong SC in Igal Dafini v CMA CGM SA[47] put in a caveat brought about by the Civil Justice Reform (“CJR”). Order 1A of the RHC makes clear that court will give effect to the underlying objectives when it exercises its powers, including increasing cost-effectiveness of litigation, ensuring a case is dealt with as expeditiously as is reasonably practicable, and promoting a sense of reasonable proportion and procedural economy in the conduct of proceedings. “If the amendment application is made in circumstances offending these underlying objectives, the court may have to balance all the factors in the case in determining whether to grant the application.”[48] Further, Order 20 rule 8(1A) of the RHC prescribes that “[the] Court shall not …… order a pleading to be amended unless it is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs”, and the burden and onus lies on the party applying for such an amendment to demonstrate so.[49] Hong Kong Civil Procedure 2018 states as follows:[50]

“The court will always look at the materiality of the proposed amendment …… An inconsistent or useless amendment will not be allowed ……nor an addition of some irrelevant matters or an amendment which fails to give the necessary material facts or particulars …… Leave will not be given to amend a defence by adding a plea which was no answer to the action (Central Queensland Meat, etc., Co. v. Gallop (1892) 8 T.L.R. 225) …… nor to make any other amendment raising a case which must fail …… So if at the trial an amendment turns out to be useless and such as ought never to have been asked for, the party who applied for it will be penalised in costs ……”

52.  I have explained the relevant principles on applications for late amendment of pleadings in paragraphs 34-36 of the Reasons, which I adopt but not repeat here. Although the original trial had been vacated and the case had not been set down again for trial, there was no shying from the fact this was a late application as it was (a) well past the time for the original trial, and (b) well after opportunity (with time extensions) was given for Ps to file amended pleadings in reply to the AD. The latest round of amendments of pleadings was completed by February 2015, and in July and again in November 2015 Ps confirmed by their LQs no further amendments to pleadings were required and (as far as Ps were concerned) the present action was ready to be set down again for trial. But notwithstanding the CJR-driven edicts of efficiency and effectiveness, I accept the lateness in the present context was somewhat blunted by the need to deal with Ds’ 4^th Summons, which meant the present action could not have been set down for trial until final disposal of both summonses.

53.  In my view, notwithstanding the alleged reasons for the Disputed Re-amendments in the Lau Aff, the need to introduce the Disputed Re- amendments was a matter of Ps’ own making since they arose out of their understanding of the AD and/or matters raised in “reply” in Ps’ own pleadings:

(a) The Lau Aff put the need for and delay in putting forward the Disputed Re-amendments squarely on the Master’s observations on 19 November 2015 (see paragraph 29 above). But in my view, the primary obligation necessarily rested on Ps (who all along had the benefit of legal representation/advice) to properly/ sufficiently plead their own case, and I am unable to see how the Master’s observations would lessen such obligation. Hence, I would approach Ps’ 4^th Summons on the basis that Ps perceived a need for the Disputed Re-amendments in mid-November 2015.

(b) The Lau Aff next complained Ds did not raise in D’s Table the point made by the Master (see paragraph 29 above) as a ground for striking out the Impugned AR under Ds’ 4^th Summons. Such allegation was not understood as Ds did not rely on such ground to strike out the Impugned AR.

(c) Thus, the only remaining ground canvassed in the Lau Aff was Ps’ alleged fear that in the absence of an express plea to the effect that “the Church” used in the AR (subject to the Exception) equated to “the Group” used in the AD, then “all matters pleaded in the [AR] in relation to “the Church” may be irrelevant”, which problem was only realised in mid-November 2015 because hitherto both parties treated “the Church” and the “Group” as synonymous terms that referred to the religious body of which Ps were members (subject to the Exception). Mr Lam’s written submissions went further to suggest Ps could not have used the term “the Group” in the AR since the AD defined “the Group” as associated with “真理天城” which allegation Ps denied (ie the Exception), so Ps referred to “the Church” in the AR, “[but] neither party had any difficulty with the meanings of the two terms until the aforesaid remarks with the learned Master”.

54.  Before I proceed to consider Ps’ ground for the Disputed Re-amendments in paragraph 53(c) above, it is useful to set out a few matters to put this ground in context:

(a) Ps’ claim was premised on the plea that the Words were defamatory of them in their natural and ordinary meaning;

(b) as part of the defence of justification, Ds pleaded particulars of various shades of meaning in their natural and ordinary sense that they sought to justify as true in substance and in fact;

(c) Ps pleaded paragraph 9(1)-(3) of the AR in reply to (i) the meaning in sub-paragraph (1)-(3) under the Meaning Particulars of Para 10 / AD, and (ii) D’s plea that such particularised meaning was true in substance and in fact.

I shall proceed to address both sub-paragraphs (c)(i) and (c)(ii) above, and turn first to the “meaning” D sought to justify in sub-paragraph (c)(i) above.

55.  According to Gatley on Libel and Slander, the natural and ordinary meaning of disputed words is “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 and fair-minded reader?”[51] The expression “natural and ordinary meaning” of words encompasses the direct and literal meaning of the disputed words, and an inferential meaning inherent in those words that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning that is capable of being detected in the language used.[52] This is contrasted to a true/legal innuendo where the defamatory meaning only arises because of extrinsic facts which are known to the recipients, and in this sense a true/legal innuendo only exists where the extended meaning arises from facts passing beyond general knowledge[53] such that extrinsic facts alleged to give rise to that meaning had to be pleaded and proved.[54]

56.  As explained in paragraph 73 of the Reasons, generally speaking, in pleading and proving a defence of justification, a defendant (with limited exceptions) is not permitted to justify (a) a more serious meaning for the words complained of than that asserted by the plaintiff or (b) a meaning which is wholly distinct from that asserted by the plaintiff, but he is entitled to justify a shade of meaning or a less injurious meaning or any meaning which the words are reasonably capable of bearing. It was for this reason that a defendant is required to specifically plead the defamatory meaning that he seeks to justify.

57.  Thus, the natural starting point would be the Article, but the Article never referred to “the Church” as defined in paragraph 9(1)(a) of the AR at all (see paragraph 17(a) above). Since the Article made no mention of “the Church” at all, the suggestion that “the Group” was synonymous with “the Church” (subject to the Exception) was not a meaning the Words were reasonably capable of bearing in the natural and ordinary sense on the basis of general and not extrinsic knowledge.

58.  A careful study of the ASoC also showed Ps never pleaded that the Words in their natural and ordinary sense referred to “the Church” or meant Ps were members of “the Church”. Indeed, Ps never referred to “the Church” (as defined in paragraph 9(1)(a) of the AR – see paragraph 17(a) above) in paragraph 17 of the ASoC that set out the natural and ordinary meaning of the Words that Ps claimed were defamatory of them. Rather, the relevant pleas in paragraph 17(1)-(2) of the ASoC averred the Words meant and were understood to mean Ps were found to be believers and/or otherwise were involved in or associated with “a religious denomination under the name of “真理天城教派” (English Translation: “the Heavenly Kingdom of Truth Denomination”)”, which was a “heretical religious cult which is similar to 「The Children of God」 famous for their fornication” (see paragraph 36(a)-(b) above). Paragraph 17(1) defined this religious denomination and/or heretical religious cult as “the Cult” (see paragraph 36(a) above). So to put it in another way, Ps never pleaded the “the Cult” and “the Church” were synonymous terms. Indeed, as seen below, even when one read the ASoC and RAR Draft (ie inclusive of the Disputed Re-amendments) together, such pleadings still drew difference/distinction rather than synonymity between “the Cult” and “the Church”.

59.  In such circumstances, what shades of meaning Ds could seek to justify were circumscribed by Ps’ pleas as to the meaning of the Words in their natural and ordinary sense, and it was not open to Ds to plead in the AD, whether expressly or implicitly, as part of its justification defence that “the Group” was synonymous with “the Church” (whether subject to the Exception or otherwise), which purported meaning of the Words was wholly distinct from the meaning Ps asserted in the ASoC. In any event, Ds never pleaded the Words bore or were understood to bear or were capable of bearing such meaning. Rather as an alternative defence, Ds in the AD sought to justify the meaning of the Words in the natural and ordinary sense (that were defamatory of Ps) inter alia that (a) “[there] was a religious group associated with the name/term “真理天城””, and (b) it was a religious cult. [55] It was this religious group associated with “真理天城” being a religious cult that was defined as “the Group” in the AD. Nowhere could one find any reference in the AD to “the Church”, which according to the AR was “the Lord Jesus Christ Church (主耶穌基督教會), a family church with orthodox Christianity belief” (see paragraph 17(a) above).

60.  In my view, it was erroneous to say Ds as a matter of pleadings treated “the Church” (subject to the Exception or otherwise) and “the Group” as synonymous terms that referred to the religious body of which Ps were members. This was not what Ds averred as borne out by the pleadings themselves:

(a)   The Exception as pleaded in paragraph 9(1)(a) of the AR and Mr Lam’s submissions in relation thereto (see paragraph 53(c) above) made it quite clear Ds by the AD did not treat “the Church” as synonymous with “the Group”. Mr Lam accepted, as he must, that the association with the name/term “真理天城” was an essential element of the make-up of the religious group defined as “the Group” in the AD, but in paragraph 9(1)(a) of the RAR Draft (being part of the Disputed Re-amendments) Ps “denied the Church has or had any association with the name and/or term “真理天城”. Indeed, Mr Lam submitted this was the very reason why Ps did not adopt the term of “the Group” in the AR but referred to “the Church” instead, which suggested that the difference between the two terms was recognised.

(b)   Ds also expressly pleaded in the AD that the Group was a religious cult, but Ps in paragraph 9(1)(a)-(b) of the AR pleaded that “the Church” was a family church with orthodox Christianity belief” and “not a heretical religious cult”, which pleas still remained in the RAR Draft.

In my view, as explained above, there was plainly no synonymity in the pleadings between the two terms of “the Group” in the AD and “the Church” in the AR, which “meaning” must be viewed in their natural and ordinary sense.

61.  Turning to the AR, since (a) Ps’ primary case on the natural and ordinary meaning of the Words as set out in the ASoC did not refer to “the Cult” as synonymous with “the Church” (whether subject to the Exception or otherwise), and (b) under the Meaning Particulars in Para 10 / AD Ds did not seek to justify the “meaning” of the Words in their natural and ordinary sense by allusion to “the Group” being synonymous with “the Church”, I am unable to see how Ps could “reply” to Ds’ allegation as to the “meaning” of the Words (in their natural and ordinary sense that Ds sought to justify) by averring “the Group” would equal to “the Church” (subject to the Exception). In my view, Ps could not seek to slip in by reply a “meaning” of the Words they did not even aver in the ASoC.

62.  Turning to Ps’ pleas in reply to Ds’ justification defence that the “meaning” of the Words as pleaded in the AD was true in substance and in fact (see sub-paragraph 54(c)(ii) above), I note there was much commonality and/or synonymity between “the Cult” used in the ASoC and “the Group” used in the AD in contra-distinction to “the Church”. As alluded to in paragraphs 58-61 above, both “the Cult” and “the Group” were defined in the pleadings as a religious denomination/group associated with or under the name/term “真理天城” and as a religious cult. I agree with Mr Ho (a) Ds could not have adopted the term “the Cult” (as pleaded in the SoC) in their original Defence and had to coin the term “the Group” because at that stage Ds could not justify a meaning of the Words that the Group was a religious cult when they did not yet have the supplemental/further witness statements of Ngai, Tse, Yeung, Pang and Tam to hand, but (b) Ds by amendment pleaded such meaning in sub-paragraph (7) under the Meaning Particulars in Para 10 / AD when those supplemental/further statements became available. From that point onwards, Ps’ and Ds’ pleadings as to the meaning of the Words in their natural and ordinary sense showed that “the Cult” was practically synonymous with “the Group” but not with “the Church”.

63.  The difference/distinction between “the Cult” / “the Group” and “the Church” was also inherent in Ps’ own pleadings:

(a) In the preamble of paragraph 9(1) and in paragraph 9(1)(a) of the AR, Ps expressly denied they were members of the religious group associated with the name and/or term “真理天城” or “「真理天城」教派” being “the Cult”, but they claimed to be members of “the Church” being a family church with orthodox Christianity belief that did not have any association with the name and/or term “真理天城”. Clearly, even Ps’ own AR distinguished between “the Cult” and “the Church”.

(b) In paragraph 14(2) of the AR, Ds averred “[Ngai] was a former member of the Church, rather than the Group (which did not exist)”. Even if we put aside the phrase “(which did not exist)” which Ds, quite strangely, did not seek to remove despite their application in Ps’ 4^th Summons to re-amend the AR by removing averments that alleged “the Group” did not exist (see paragraph 19 above), the remaining parts of paragraph 14(2) of the AR demonstrated that even on Ps’ case “the Church” and “the Group” were different such that Ngai was previously a member of the former and not the latter. This quite exploded Ps’ contention that they all along believed or understood “the Group” and “the Church” were synonymous terms (subject to the Exception). After all, paragraph 14(2) was pleaded in Ps’ original Reply in September 2011 and was not introduced by subsequent amendment in the AR or proposed by way of the Disputed Re-amendments in the RAR Draft. Significantly, Ps did not seek to re-amend paragraph 14(2) of the AR.

In view of the above and the matters in paragraphs 58-61 above, I am unable to see any alleged common understanding between the parties all along that “the Group” was synonymous as “the Church” (subject to the Exception). In my view, the Disputed Re-amendments were quite inconsistent with paragraph 14(2) of the AR (even if the words “(which did not exist)” were to be ignored), which plea was/is still very much part of Ds’ pleadings, and also inconsistent with the ASoC that branded the Words to mean and to refer to the “Cult”, which I have found to have commonality and/or synonymity with “the Group”, but the ASoC did not even hint “the Cult” was synonymous with “the Church”. As explained in paragraph 51 above, an inconsistent amendment would not be allowed.

64.  This was also echoed in paragraph 9(1)-(3) of the AR and RAR Draft. Ps pleaded paragraph 9(1) of the AR in “reply” to the meaning of the Words in their natural and ordinary sense as set out in sub-paragraph (1) under the Meaning Particulars in Para 10 / AD that Ds sought to justify (ie “[there] is a religious group which is associated with the name and/or term “真理天城” (the “Group”)”):

(a) “there is no such religious group associated with the name and/or term “真理天城” or “「真理天城」教派” (the Heavenly Kingdom of Truth Denomination), ie the Cult”;[56]

(b) Ps were members of “the Church” which was not a heretical religious cult;[57]

(c) “真理天城 (Heavenly Kingdom of Truth Denomination)” was the name of the Website of which some editors (including P1) were members of the Church, but there was no direct/official connection with the Church;[58]

(d) the alleged Group did not exist.[59]

In a nutshell, Ps’ pleaded case (first made more than 6 years ago in September 2011) was that (i) “the Cult” and “the Group” did not exist, (ii) “真理天城 (the Heavenly Kingdom of Truth Denomination)” was merely a website forum of which some editors (including P1) were members of the Church but had no real connection with the Church, and (iii) Ps were members of “the Church”.

65.  In paragraphs 9(2)-(3) of the AR, Ps replied on the “meaning” of the Words in their natural and ordinary sense set out in sub-paragraphs (2)-(3) under the Meaning Particulars in Para 10 / AD that Ds sought to justify:

(a) it was incorrect to refer to P1/P2 as leader/member of the Group or P1 as a deacon of the Group since the Group did not exist;

(b) all members of the Church were equal brothers and sisters (弟兄姊妹), and the position of “教主” did not exist;

(c) P1 was 1 of 2 elders (長執制度下兩位長老) of the Church.

In a nutshell, Ps’ pleaded case (first made more than 6 years ago in September 2011) was (i) “the Group” did not exist, and (ii) Ps were equal members and P1 was an elder of “the Church”.

66.  Plainly, by the AD and AR, Ps clearly drew careful distinction between “the Group” and “the Church”. The former was a religious cult associated with the name/term “真理天城”, but the latter was a family church that was not a religious cult and not associated with the name/ term “真理天城”. But Ds had no objection to and the Master allowed Ps to re-amend the AR by removing the averments in paragraphs 64(a), (b) and (i) and 65(a) above. Therefore, but for the Disputed Re-amendments, Ps’ revised pleadings would have averred that (1) Ps were members of “the Church”[60] but not “the Cult”[61], (2) “真理天城 (the Heavenly Kingdom of Truth Denomination)” was merely a website forum of which some editors (including P1) were members of the Church but it had no direct/official connection with the Church, (3) P1/P2 were leader/member of the Church, and (4) it was still incorrect to refer to P1 as deacon of the Church. It was quite clear from (1) above that even the undisputed re-amendments in the RAR Draft drew a careful distinction between “the Cult” (which I have found to have commonality and synonymity with “the Group”) and “the Church”. This reinforced the above analysis that there was no synonymity between “the Group” and “the Church” in the parties’ pleadings, and in the circumstances, the suggestion of synonmity in the Disputed Re-amendments raised an inconsistency.

67.  Mr Lam argued Ps must be entitled to refer to “the Church” in reply to Ds’ pleas in relation to “the Group” in Para 10 / AD. But I note Ds quite fairly took no objection to Ps’ pleas concerning “the Church” in paragraphs 9(1)-(3) of the RAR Draft as summarised in paragraph 66(1)-(4) above. The only matter that drew Ds’ ire was the suggestion that their averment of “the Group”, which natural and ordinary meaning of the Words they sought to justify, was the same as “the Church” (subject to the Exception) which was not their pleaded meaning at all.

68.  For the above reasons, there was no basis for Ps to introduce by way of re-amendment the extrinsic matter of equating “the Group” with “the Church” (subject to the Exception) either on Ps’ primary case that the Words in their natural and ordinary meaning were defamatory or on Ps’ response to Ds’ alternative defence that the particularised shades of meaning or less injurious meaning could be justified. Since the Disputed Re-amendments were proposed in “reply” to the AD, they could not stretch (or be inconsistent with) Ps’ primary case set out in the ASoC, and certainly they could not give colouring to Ds’ justification defence that Ds never asserted in the AD. As analysed above, there was nothing express or implicit in the existing pleadings to the effect that “the Group” was synonymous with “the Church”, and imposing the Exception on the latter in fact highlighted its difference rather than its synonmity with the former.

69.  In my view, the Disputed Re-amendments purported to raise new/inconsistent contentions that was not in “reply” to the AD, and in this respect I bear in mind there was no proposed re-amendment to P’s primary case as pleaded in the ASoC.  As explained above, the Church, according to Ps, had/has no association with the name/term “真理天城” and was not a religious cult. In my view, to allow the Disputed Re-amendments would introduce impermissible confusion and contradiction to Ps’ case that did not rely on any plea of true/legal innuendo, which would be embarrassing and/or unfair to Ds, and would not be necessary for fairly disposing of the cause or matter or for saving costs. The Disputed Re-amendments must be refused, and the Master was correct to disallow them. In the circumstances, Ps’ appeal against the Master Order in respect of Ps’ 4^th Summons in this respect must be dismissed.

VII.  Ds’ 4^TH SUMMONS

70.  In dealing with Ds’ 4^th Summons, both Mr Lam and Mr Ho agreed (a) the Impugned AR in respect of the Concern Group in paragraph 14(1)(d) of the AR (“Concern Group Plea”) and the biblical references in paragraphs 14(3)(b), 14(3)(f)(i)-(iii), 14(3)(g)(i), 14(3)(h)(iii) and 14(3)(k) (ii)-(iii) of the AR (“Biblical References Pleas”), and (b) the Impugned WS in respect of matters relating to the Church (see paragraph 17(a) above) and biblical references (see paragraph 17(b) above) would stand and fall together by the grouped pleas/statements as a matter of broad principle without minute study of individual words, phrases, sentences and passages. The fate of other parts of the Impugned WS (see paragraph 17(c)-(d) above) depended on the outcome of the application to strike out matters in (b) above. Mr Ho accepted the burden was on Ds to show Ps should not be allowed to raise those pleas and to lead evidence on those matters.

71.  I first turn to Ds’ application to strike out the Biblical References Pleas that essentially averred biblical references and religious belief in relation to inter alia casting out of demon (paragraph 14(3)(b) of the AR), communicating directly with Jesus and the Holy Father (paragraph 14(3)(f) (iii) of the AR), prophet/prophetess (paragraph 14(3)(f)(i)-(ii) of the AR), Millennium (paragraph 14(3)(g)(i) of the AR), rapture (paragraph 14(3)(h) (iii) of the AR) and Twelve Chosen (paragraph 14(3)(k)(ii)-(iii) of the AR).

72.  Ps’ case against Ds rested on the natural and ordinary meaning of the Words that were allegedly defamatory of Ps. I have explained in paragraph 55 above such natural and ordinary meaning may include inferences, implications or indirect meanings 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. The important thing to note is that such meaning does not require the support of extrinsic facts passing beyond general knowledge.[62]I have also explained in paragraph 73 of the Reasons and paragraph 56 above that, generally speaking, the defendant in raising a defence of justification is not permitted to justify (a) a more serious meaning for the words complained of than that asserted by the plaintiff or (b) a meaning which is wholly distinct from that asserted by the plaintiff. But Ds still had to justify the Words by natural and ordinary rather than innuendo meaning.

73.  In the pleaded “meaning” under the Meaning Particulars in Para 10 / AD that Ds sought to justify, there was no reference to casting out of demon, communicating directly with Jesus and the Holy Father, prophet/ prophetess, Millennium, rapture and Twelve Chosen at all. So neither Ps nor Ds could introduce extrinsic facts (eg biblical references and Christianity beliefs in the Biblical References Pleas) to establish the natural and ordinary meaning of the Words that were allegedly to be defamatory. The position on evidence is clear: [63]

“…… Where the claimant is relying on the natural and ordinary meaning of the words complained of, no evidence of their meaning is admissible or of the sense in which they were understood, or of any facts giving rise to inferences to be drawn from the words used. It is for the jury to determine the sense in which the words would reasonably have been understood by an ordinary man in the light of generally known facts and meanings of words ……” (my emphasis)

It was likewise clear that Ps’ state of mind and subjective interpretation of the Words were irrelevant. “Where the claimant relies on the natural and ordinary meaning he is equally subject to the rule that evidence cannot be given as to meaning.  Thus he cannot be asked what he understood the words to mean. The claimant may be able to give evidence on meaning, if he has pleaded an innuendo ……” (my emphasis), [64] which Ps did not so plead. In any event, although “…… the burden is generally upon the claimant to satisfy the jury that the words in their natural and ordinary meaning convey a defamatory imputation ……” (but it is unnecessary to prove anyone did understand the words in the defamatory sense alleged),[65] in a defence of justification “[the] onus is upon the defendant to prove the truth of the words in their natural and ordinary meaning ……”[66]

74.  In the course of submissions, Mr Lam accepted the aforesaid principles in relation to the natural and ordinary meaning of words alleged to be defamatory, but suggested (a) sub-paragraphs (1)-(7), sub-paragraphs (1)- (5) and sub-paragraphs (1)-(3) under “Particulars of facts and matters relied upon in support of the plea of justification” (“Facts/Matters Particulars”) in Para 10 / AD respectively for the defences of justification, fair comment and Reynolds privilege were “no doubt to support Ds’ allegation that Ps’ group was a religious cult (邪教)”, and (b) the Biblical References Pleas were in reply to Ds’ “factual allegations” without which Ps would not be able to put forward a complete response, which would be unfair to them.

75.  Given Mr Lam’s contentions, it is necessary to revisit the precise pleas/averments in the AD. As explained in paragraph 56 above, Ds could justify different shades of meaning or less injurious meanings of the Words. In the “meaning” detailed under the Meaning Particulars in Para 10 / AD, Ds did not (as Mr Lam suggested) seek to justify any meaning that the Group was “邪教” (heretical religious cult – see paragraph 15(3) of the ASoC and sub-paragraphs (1) and (7) under the Meaning Particulars of Para 10 / AD) was true in substance and in fact. Rather, Ds sought to justify the meaning that the Group was a religious cult (see sub-paragraph (7) under the Meaning Particulars of Para 10 / AD). Further, in sub-paragraph (11) under the Meaning Particulars in Para 10 / AD, Ds did not seek to justify any meaning that P2 was actually a prophetess of the Group, but rather to justify the meaning that P2 admitted she was such.

76.  Still further, Ds did not seek to justify any meaning that casting out of demon, being prophet/prophetess, communicating directly with Jesus and the Holy Father, Millenium, rapture and Twelve Chosen were something mysterious or non-orthodox. This did not feature as any meaning that Ds wished to justify as true in substance and in fact. What was pleaded in sub-paragraph (3) under the Facts/Matters Particulars of Para 10 / AD was that Ngai told D1’s staff certain matters without ascribing any meaning, definition or explanation to the terms or activities Ngai mentioned,[67] and without seeking to justify that they were mysterious or unorthodox. But Ps’ reply in paragraph 14(3) of the AR ascribed meaning, definition and explanation to the terms or activities Ngai mentioned by pleas of biblical references and Christianity belief, and suggested they had solid biblical basis. Since, as Mr Ho conceded, for the purpose of the defence of justification Ds in the AD did not ascribe meaning or question the orthodoxy of these matters, I am unable to see any necessity or pertinence in raising this fresh and distinct issue in reply.

77.  Mr Lam suggested Ps were entitled to plead in reply to Ds’ allegation that Ps’ Group was “邪教” (see paragraph 76 above). In fact, Ds only pleaded “換妻邪教” as fair comment (see paragraph 40 above) and not as a meaning of the Words that they sought to justify as true in substance and in fact.

78.  In relation to the defence of fair comment, Gatley on Libel and Slander explained such defence had 5 elements:

“…… Paraphrasing, these five elements are:

(1) the comment must be on a matter of public interest;

(2) the comment must be recognisable as comment, as distinct from an imputation of fact;

(3) the comment must be based on facts which are true or protected by privilege;

(4) the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based, and

(5) the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views.

Where malice can be established by the claimant this will defeat the defence of honest comment, albeit that the concept of malice is somewhat circumscribed in this context ……”[68]

79.  As to the question whether the Words in paragraph 40(a)-(b) above were statements of fact or expressions of opinion, it would be “decided upon a consideration of the words themselves. It is not permissible to have regard to some other article, letter, document or publication in response to which the words were written which have not been repeated or summarised on the defendant’s words. It is submitted, however, that the words must be appraised within their entire relevant context in adjudicating whether they are fact or comment. No oral evidence is admissible on this issue” (my emphasis).[69] As to the fairness of the comment, this is to be judged objectively, applying the test whether any man, however prejudiced and obstinate, could honestly hold the view expressed by the defendant on the facts known to him.[70] Thus, the burden of proof fell on Ds on the facts known to them in contra-distinction to Ps’ state of mind and/or subjective interpretation of the Words.

80.  Where, as here, Ps alleged malice to defeat the plea of fair comment (ie Ds were not expressing genuine opinion), the burden was on Ps to establish malice, and Ds were to give evidence to rebut the charge.[71] Although Ps could rely on extrinsic evidence (ie something outside the Article),[72] here Ps merely relied on the facts and matters pleaded in paragraph 18 of AR to infer malice (see paragraph 48 above), and in making the 2 points that (a) the Article was grossly untrue/false and D1 knew/believed what was published in the Article and Words was untrue and/or not caring whether what was published was true or false and (b) excessive language was used in the Article and the Words, Ps relied on inter alia paragraphs 8-14 of the AR, which would include the Biblical Reference Pleas. But there was no plea in paragraphs 18-19 of the AR that Ds were aware of Ps’ state of mind, Ps’ subjective interpretation of the Words, or Ps’ subjective understanding of the biblical references and Christianity belief when they published the Article, or Ds shared Ps’ understanding of the Words, biblical references and Christianity belief and yet published the Article with an improper motive. In such circumstances, Ps had no pleaded basis to use the Biblical References Pleas to establish malice to defeat the defence of fair comment.

81.  In respect of the defence of Reynolds privilege, this is a form of qualified privilege for publication that concerns a matter of public interest where there has been responsible journalism on the part of the defendant. Lord Nicholls in Reynolds v Times Newspapers Ltd[73] set out a non-exhaustive list of the 10 “Nicholls factors” as follows:[74]

“Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only. 1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which the subject matter is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegation may have already been the subject of an investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. 8. Whether the article contained the gist of the plaintiff’s side of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It needs not adopt allegations as statements of fact. 10. The circumstances of the publication, including the timing.

This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. ……”

82.  I have no doubt that the burden was on Ds to show they had complied with the standards of responsible journalism. As explained in Jameel v Wall Street Journal (No 1), it is not relevant to qualified privilege whether the publication is true or not.[75] Further, the defence of Reynolds privilege cannot be defeated by malice. As Gatley on Libel and Slander states,

“The traditional form of qualified privilege is defeated by proof by the claimant of malice on the part of the defendant. This has become irrelevant in the context of Reynolds: the defendant must establish not only that the matter was of sufficient public interest, but that he acted in accordance with the tenets of responsible journalism. There is therefore “no question of the privilege being defeated by proof of malice because the propriety of the conduct of the defendant is built into the conditions under which the material is privileged.” …… The irrelevance of malice may be more a matter of practicality than doctrine ……”[76]

“…… the mere fact that the defendant honestly believes in the truth of what he says does not of itself provide a basis for the privilege. However, the defendant must show that he complied with the standards of responsible publication, how can there ever be a case where, the defendant having done that, the defence is rebutted by proof of malice?”[77]

Indeed, Eady J in Miller v Associated Newspapers Ltd said “[if] a particular publication passes the privilege test now [ie under Reynolds], it is very difficult to envisage circumstances where there would be room for it to be overridden by malice”.[78]

83.  In light of the above, I am unable to see how the Biblical References Pleas, being matters of Ps’ state of mind, subjective interpretation of the Words, and subjective understanding of biblical references and/or Christianity belief or being matters of extrinsic facts would be of any relevance to any rebuttal of the defence of Reynolds privilege.

84.  Given the above analysis, there was no basis at all to introduce the Biblical References Pleas in “reply” to or rebuttal of the defences of justification, fair comment and Reynolds privilege in the AD. In coming to the above decision that the Biblical References Pleas ought to be struck out, I (like the Master) consider there was no need to consider the issue of justiciability of the subject matter of those pleas. But I will deal with it briefly for completeness. Mr Lam submitted that fairness required Ps to be allowed to refer to biblical references and Christianity belief and to explain what those terms/activities meant to them and to further explain that such terms/activities had solid biblical basis and were not something mysterious or non-orthodox. As I have explained above, these matters had no relevance in “reply” to the defences pleaded in the AD. But if Ps introduced the Biblical References Pleas for other purpose, Mr Ho argued it would be tantamount to inviting the court to adjudicate on whether the casting out of demon, whether P2 was in fact a prophetess, whether P1/P2 (if they are in Hong Kong at the time of the 1^st resurrection) will be the Millennium king and queen of Hong Kong, and whether rapture and the Twelve Chosen had solid biblical basis, but these matters were non-justiciable by the secular court that respects believers of different faiths.

85.  Mr Lam referred to Shergill & ors v Khaira & ors[79] that concerned questions of who had power to appoint and remove trustees, who were resident and held property in England, the trust deeds having given such power to the First Holy Saint (spiritual leader of the sect by believers adhering to his teachings) or his “successor”. After the First and Second Holy Saints died, dispute arose over who was the “successor”. It was held although the courts do not adjudicate on the truth of religious beliefs or validity of particular rites, where a claimant asks the court to enforce private civil rights and obligations which depend on religious issues, the judge can determine such religious issues as are capable of objective assessment and necessary to decide the disputed legal rights, including questions of disputed doctrine (see also paragraph 78 of the Reasons). But the above analysis showed the adjudication of Ps’ claim herein did not depend on the religious issues raised in the Biblical References Pleas, which were not necessary to decide the alleged tort of defamation. I am not persuaded Shergill & ors took Ps’ case on the Biblical References Pleas any further.

86.  Turning to the Concern Group Plea, such plea averred the Concern Group was a controversial organisation within the Christian community that had been criticised as being too keen in labelling others as cults or heresies without due inquiries, investigations or basis, and without regard to theological differences that might properly exist amongst Christians of different denominations.

87.  Sub-paragraph (1) under the Facts/Matters Particulars put forward the Concern Group as the source/informant that gave the lead for Ds’ journalistic investigation for the Article rather than put forward the Concern Group as the contents of the Article or the Words themselves. So such plea would only have been pertinent to alleged rebuttal of the defence of Reynolds privilege, and would merely be factual background rather than going to the heart of any defence based on (a) the natural or ordinary meaning of the Words that Ds sought to justify (ie the justification defence) or (b) any genuine opinion on a matter of public interest (ie the fair comment defence). After all, the Concern Group was not mentioned in the Article.

88.  Mr Lam’s point was a simple one: if Ds were allowed to plead allegation by a member of the Concern Group that “the Group” was a fringe Christian group that the public should be warned about, why should Ps be precluded from pleading that the Concern Group itself was a controversial organisation within the Christian community criticised by many as being keen to label others as cults or heresies?

89.  In my view, the answer lies in the law which was not cited by Mr Lam or Mr Ho. In GKR Karate (UK) Ltd v Yorkshire Post Newspapers Ltd & ors,[80] May LJ referred to inter alia item 3 of the Nicholls factors (ie the source of the information) and said as follows at pp 2578-2579:

“…… Nor is it necessary or relevant to speculate (for the purposes, for instance, of considerations 3, 4 or 7) what further information the publisher might have received if he had made more extensive enquiries. The question is rather whether, in all the circumstances, the public was entitled to know the particular information without the publisher making further such inquiries. The reliability of the source of the information is a relevant consideration, but that, in my view, is to be judged by how objectively it should have appeared to the defendant at the time. It is to be considered in conjunction with the inquiries which the defendant made at the time relevant to the reliability of the source. If the defendant made careful inquiries which, judged objectively, reasonably justified a conclusion that the source was apparently reliable, that will be a positive (though not determinative) indication in favour of the occasion being privileged. If the defendant made no, or only perfunctory, inquiries, a conclusion that the source was apparently reliable will be less likely. In neither instance is a subsequent investigation at trial into the actual reliability of the source relevant. The judge was, in my view, right so to conclude in the present case. Mr Porch may or may not have an axe to grind. But, if he did, what is relevant is whether Mrs Holmes knew it at the time or, if she did not, whether she made proper inquiries on that subject.” (my emphasis)

90.  GKR Karate (UK) Ltd was cited with approval by the English Court of Appeal in Jameel v The Wall Street Journal Europe SPRL.[81] Simon Brown LJ said at p 106 as follows:

“…… Is the evidence in question here designed to demonstrate that those sources were not as reliable objectively it might have appeared to the appellant at the time, or is it designed rather to show that the sources are in fact unlikely to have told the appellant that it says it was told (or at least are unlikely to have conveyed the information as clearly as the appellant claim it was conveyed)? The former purpose would, as GKR Karate makes plain, be impermissible; the latter, however, seems to me entirely justifiable.

…… In GKR Karate, it is important to understand, the author of the defamatory article had a single source who was not anonymous; he was, indeed, the second defendant, the claimant’s business rival. There was simply no dispute in that case as to what the source had told the author, …… “the reliability of his source of information” …… in itself, GKR Karate clearly establishes, is not properly the subject to investigation at trial. I rather think, however, that the judge intended no more than to indicate that journalists for their part should be circumspect about referring to the quality of their anonymous sources lest they thereby seek an untoward advantage in the litigation. ……” (my emphasis)

91.  This is nicely summarised in Gatley on Libel and Slander as follows:[82]

“Where Reynolds privilege is raised ……, the claimant must of course be able to lead evidence as to any factual matter in issue on the Reynolds/public interest defence. The question has often been: what exactly is in issue?

So in Jameel v Wall Street Journal (No 1) it was not relevant …… to speculate what further information the publisher might have discovered if he had made more extensive enquiries. However, evidence was admissible to show that the defendant’s sources were in fact unlikely to have told the defendant what it alleged it was told, or at least unlikely to have conveyed the information as clearly as the defendant alleged. In Jameel, Simon Brown LJ distinguished between evidence to that effect, and evidence which sought to show that the defendant’s sources were not in fact as objectively reliable as was claimed, which would have been inadmissible.

The source of the defendant’s information is one of the ten circumstances in Lord Nicholls’ non-exhaustive list of circumstances to be taken into account when determining whether publication attracted Reynolds privilege. The claimant, it is submitted, must be able to lead evidence on other matters on Lord Nicholls’ list, if they are in dispute, such as whether comment was sought from him, and whether the article contained the gist of his side of the story. ……”

92.  Thus, as regards the source/informant of the published material, it was what appeared to the defendant at the time that is relevant.[83] Further, “[one] must be realistic about what the defendant can do in these cases, however, since a newspaper is not a secret service and if the defendant has pursued what other inquiries are open to him he is not deprived of the protection of privilege because the original source had an obvious axe to grind”.[84]

93.  Gatley on Libel and Slander also reminds that since it is generally not the truth of the allegations as such that is in issue in a Reynolds public interest case, so the important consideration in determining whether the defence of Reynolds privilege is met is what steps the journalists took to verify the allegations, hence it is the conduct of the publisher/defendant by reference to the circumstances known at the time of the publication (not information that subsequently came to his attention) that will decide the question.[85] That is why it has been said that in many cases where there is a Reynolds or public interest defence, evidence from the claimant on this issue will unnecessary or rare. Gatley on Libel and Slander[86] cited Charman v Orion Publishing Group Ltd where Gray J observed:[87]

“Where, as here, the issue is whether an author or journalist conducted himself responsibly in relation to the publication complained of, it will rarely be necessary for factual evidence to be called on behalf of the claimant.”

94.  Bearing in mind these principles, it was plainly redundant and inappropriate to plead the Concern Group Plea when there was no averment that Ds knew of the matters alleged, and a plea that went to the issue of actual or objective reliability of the source was not permissible. Plainly, the Concern Group Plea was not to address the question whether or not Yeung or the Concern Group gave the relevant information to D1’s staff for Ps already pleaded they had no knowledge whatsoever about any contact between Ds’ staff with Yeung or anyone from the Concern Group, and were unaware of anything that might have been said by Yeung (see paragraph 47(a)(i) above). Ds fairly took no objection to pleas in the AR that dealt with steps taken or omission of steps by Ds in investigating/verifying the lead. Further, Yeung / Concern Group was not an anonymous source. The Concerned Group Plea ought to be struck out.

95.  In the circumstances, I agree with the Master that the Impugned AR were pleas on matters that were inadmissible, irrelevant and/or unnecessary for the eventual trial on the issues raised by Ps’ case (ie whether the words were defamatory in their natural and ordinary meaning) and/or raised by Ds’ case (ie denial of Ps’ claim and the defences of justification, fair comment and Reynolds privilege). The Impugned AR ought to be struck out. This aspect of the Appeal must also be dismissed.

96.  Turning to the Impugned WS, the starting point is that pursuant to my order set out in paragraph 7 above Ps were only given leave to reply to the amendments in the AD and the supplemental/further witness statements of Ngai, Tse, Pang, Yeung and Tam. If Ps wished to adduce statement evidence outside the scope of such “reply”, they had to take out independent application for leave to serve supplemental/additional witness statements, and they were not entitled to slip in extraneous matters under the guise of “reply”.

97.  Both Mr Lam and Mr Ho agreed that for the court to deal with the Impugned WS it would unnecessary for this court to delve into the specific sentences, phrases and words of the impugned passages in each witness statement (see paragraph 70 above), and that I should deal with the matter on broad principle. Indeed, Mr Lam accepted the fate of the Impugned WS necessarily followed that of the Disputed Re-amendments and Impugned AR. I shall proceed on such basis, but that said I have read and considered impugned passages in coming to my conclusions below.

98.  As explained in paragraph 17 above, the focus of Ds’ complaints against the Impugned WS concerned the Church as well as biblical references and Christianity belief. Given the striking out of the Biblical References Pleas and refusal of the Disputed Re-amendments, I agree the corresponding matters in the Impugned WS that gave detail as to the history/ideology of the Church and various biblical references were irrelevant and unnecessary. Further, they were not in “reply” to the defences raised in the AD. The Church was not any of the Ps, and there was no claim by the Church against Ps. There was no averment/reference in the Article to the Church. Neither Ps nor Ds averred the natural and ordinary meaning of the Words that was defamatory of Ps (whether as claimed by Ps or raised in justification by Ds) concerned the Church. I have also explained the irrelevancy of the biblical references and Christianity belief in purported “reply” to the defences pleaded in the AD, and the fallacy of the suggestion that “the Group” was synonymous with “the Church” (subject to the Exception). I agree the Impugned WS concerning matters relating to the Church and biblical references (set out in paragraphs 17(a)-(b) above as adjusted by the Master Order) ought to be struck out.

99.  Since the Concern Group Plea was struck out as being inadmissible, it followed the corresponding paragraphs 224 and 226 of the witness statement of 藍家銘 (see paragraph 17(c) above) ought to be struck out as well. Further, since parts of the witness statement of 藍家銘 were struck out (see the above paragraph), Ps’ other witnesses could no longer adopt those parts of the witness statement of 藍家銘, and the corresponding passages in the witness statements of such other witnesses (referred to in paragraph 17(d) above as adjusted by the Master Order) ought to be struck out too.

100.  For all of the above reasons, I see no basis to disturb the Master Order in striking out the Impugned WS, which decision I agree. The Appeal against the Master Order in this respect is also dismissed.

VIII. CONCLUSION

101.  The Appeal is dismissed. I grant the following consequential orders:

(a) Ps shall within 14 days from today file and serve Re-Amended Reply pursuant to paragraphs 1-2 of the Master Order;

(b) paragraphs 2-3 of the order of the Master dated 12 May 2016 do stand.

102.  I will ask my clerk to provide a copy of this Decision to the Master with directions for the Master to fix a CMC (with consequential directions as he may deem appropriate) as soon as practicable. In respect of the forthcoming CMC, the Master and the parties should note that the Glossary referred to in paragraph 128 of the Reasons would no longer be needed for the eventual trial, especially in light of the clarification above and the eventual provision of proper English translations of documents and witness statements as alluded to in paragraph 127 of the Reasons.

103.  There is no reason why costs should not follow event. I grant a costs order nisi that costs of and occasioned by the Appeal be paid by Ps to Ds including all costs reserved if any (save and except that in respect of the hearing bundle Ds were only entitled to recover half of the costs of and occasioned by the preparation, lodgment and service of the hearing bundle), and such costs shall be summarily assessed. Ds had put in a lot of historical documents in the hearing bundle that were not pertinent to Ps’ 4^th Summons, Ds’ 4^th Summons and Appeal. It was a waste of costs and effort, and more importantly it was burdensome on Ps and the court.

104.  I also give directions for the summary assessment of costs as follows:

(a) Ds do within 7 days from the date hereof lodge and serve statement of costs not exceeding 1 page pursuant to Practice Direction 14.3;

(b) Ps do within 7 days thereafter lodge and serve succinct summary of objections of not more than 1 page in respect of Ds’ statement of costs;

(c) if no application is made to vary the costs order nisi within 14 days from the date hereof, the summary assessment of costs will be by paper disposal (unless otherwise directed);

(d) if application is made to vary the costs order nisi within 14 days from the date hereof, the party seeking variation of the costs order nisi do within 14 days from the date hereof fix a date with the Listing Clerk for the hearing of the application for variation of the costs order nisi and summary assessment of costs before me in chambers (open to the public) on a date not before 21 days from the date hereof with half hour reserved.