EASTERN EXPRESS PUBLISHER LTD. AND ANOTHER v. MO MAN CHING AND ANOTHER

CACV 178/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 178 OF 1998

(ON APPEAL FROM HCA NO. 5660 OF 1995)

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J U D G M E N T

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Liu, JA:

1. The 1st and the 2nd plaintiffs took the 1st and the 2nd defendants to court for libel. The action was entertained by Yuen, J. The judge dismissed the claims against both defendants. The libel action involved two statements. The judge nevertheless proceeded to assess damages as regards the 2nd plaintiff with respect to the 2nd statement. The quantum awarded was $80,000. The defendants did not question the quantum so suggested by the judge. Both plaintiffs took the defendants to appeal. This court concluded that both plaintiffs should succeed on the 2nd statement and the quantum of $80,000 suggested by the judge for the 2nd plaintiff was embraced by this court in an unaided attempt to assess damages.

2. As to the quantum of damages for the 1st plaintiff and the general question of costs, this is what this court said:

"The 1st plaintiff succeeds but only on one of the two Statements. However, the 1st plaintiff is victorious over the issue of identification. The 2nd plaintiff is successful only on the Second Statement. It would appear arguable that the two Statements are discrete and that costs should be separately considered. On the other hand, there is much to be said for costs to follow the event in a programme now found to be defamatory of the plaintiffs in this libel action. In my view, the proper order should be an order nisi that the plaintiffs should have half costs here and below. To the extent of the determinations made in this judgment, the judge's order be set aside. I would, therefore, allow the appeal to the same extent and order accordingly, including making the $80,000 award with liberty to apply."

3. The appeal was allowed. The proposed orders nisi were indorsed by all the members of this court, and orders in terms were made. Both the award and the costs order were made orders nisi, so to speak, blind without the benefit of submissions from counsel. It was intended to do poetic justice so that neither of the adversaries would be unnecessarily further agitated.

4. This matter has not been permitted to rest. Pursuant to the order nisi, an application is made to this court for finalising it, so put Mr Cheng Huan, leading counsel for the plaintiffs, in appropriate terms. It is submitted by Mr Cheng Huan that the $80,000 should not be shared by both plaintiffs and that the half costs awarded to his clients should be increased.

5. The 2nd plaintiff is a listed holding company of a publication conglomerate. Broadly speaking, it oversaw the activities of the 1st plaintiff. The 2nd plaintiff is in fact the holding company of the 1st plaintiff. The award to the 2nd plaintiff is not sought to be interfered with in this application. It is not to be lost sight of that the 1st plaintiff is the only English newspaper publication within the conglomerate which the 2nd plaintiff heads.

6. Mr Cheng Huan for the plaintiffs submits that both the 1st and the 2nd plaintiffs were separate legal entities. They had separate reputation to protect. They were separately defamed and they should be awarded separate damages. Counsel refers us to the case of Booth v. Briscoe, (1877) 2 QBD 496 at p. 497, per Bramwell LJ.

7. In the circumstances of this case as succinctly analysed by counsel, on the conclusions reached by this court, separate vindication of each of the plaintiffs should be reflected in a separate award. The $80,000 awarded to the 2nd plaintiff is to, in the absence of further submissions, stand. This court does not focus so much on the hurt as sustained by each of the plaintiffs as it does on the attendant facts relating to each of them. It is not easy to quantify the amount to be awarded to the 1st plaintiff. Not only should a separate award be made to the 1st plaintiff, but it would appear that on the like parity of reasoning, the award of $80,000 for the 2nd plaintiff should not be shared. As to the 1st plaintiff, this court does not propose to rehearse what have been said on his behalf by counsel except for the two features counsel has highlighted. First, the offending episode occurred on 11 March 1995 and the 1st plaintiff closed down its operation in June 1996 although its legal entity was reserved. This court is also told that the circulation of the English newspaper published by the 1st plaintiff reached $30,000 copies a day.

8. Looking at the case of the 1st plaintiff in the round together with our conclusion that it should receive an amount for separate vindication, we arrive at, though not entirely without diffidence, a sum of $20,000 as damages for the 1st plaintiff on the 2nd statement it had succeeded.

9. Turning finally to the question of costs, Mr Cheng Huan, counsel for the plaintiffs, provides an estimate to this court that the 1st statement on which both plaintiffs failed in the libel action, took not more than a morning for evidence. This court is reminded that the 1st statement concerned an issue within a narrow compass.

10. Mr Chow for both defendants submits that whilst he does not dispute the time-frame estimate of Mr Cheng Huan, he maintains that the 1st and the 2nd statements were matters intertwined. He invites this court to take the view that the 1st statement was more extensively involved. Mr Chow further submits that both statements were contested on virtually the same issues. That submission of Mr Chow contains an implicit concession that the very same legal arguments would have had in any case to be run here and below. On the 2nd statement alone, it is again not a matter easy for precise assessment. Doing the best this court possibly can, in the exercise of our discretion against the background given us in counsel's submissions, this court would regard 80% of the litigation costs for the plaintiffs as fair and reasonable.

11. In conclusion, the order nisi made by this court is varied and substituted by an order that the 1st plaintiff be awarded $20,000 damages. The $80,000 damages awarded to the 2nd plaintiff are to stand and costs here and below are to be borne by both defendants to the extent of 80% or 4/5ths in the action and the appeal. We are indebted to counsel for their clear and concise submissions.

(After submissions)

Further ordered: Costs of to-day be part of costs of the appeal, such costs be paid by defendants to plaintiffs.