KI MING PO also known as KI PO v. YEUNG WAI HONG AND OTHERS

1993, No.A604

Headnote

[When the defendant in a libel action has made a general charge against the plaintiff and says that he will justify it, he must be prepared to give particulars of the specific acts and instances which he relies on as justification for the general charge]

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is an application by summons for an interlocutory injunction to restrain further publication of an alleged libel, which, at my direction, has been argued in open court.

2. The plaintiff is an executive director in a number of companies in the entertainment business. Briefly, the words which are said by the plaintiff to be defamatory of him are words in which he is accused among other things of being a member of or associated with a triad society. I am satisfied that that is a very serious libel. But the plaintiff has not, or has not yet, deposed that the words are untrue; and for a plaintiff to come to this court and say "prevent the publication of something which I do not prove to be untrue" is a very strong thing indeed. As a general rule, a plaintiff who applies for an interlocutory injunction must show the statement to be untrue: see Quartz Hill Consolidated Gold Mining Company v Beall [1882] 20 Ch D 501 per Jessel, M.R. at p.508.

3. It is obvious that the subject matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise it without impediment so long as no wrongful act is done, and unless an alleged libel is untrue, there is no wrong committed. On the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed. And the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions. All this was emphasised in the majority judgment of a full court of appeal, consisting of no less than seven judges, in Bonnard v Perryman [1891] 2 Ch.D.269; see especially at p.284. (Kay L.J. delivered the only dissenting judgment.)

4. So I approach the present application with these principles in mind.

5. The libel complained of here was published in a magazine published in the Chinese language (it is called "Next Magazine" in English). In his statement of claim, the plaintiff sets out, as the words complained of, an English translation of what appears in the Chinese language in the magazine. That is not the right way in which to plead an alleged libel expressed in a foreign language. You must, as I understand the practice, plead the actual words complained of, and then plead separately what you say is the correct translation. The point seems technical but unless the practice is observed, it entitles the defendant to say (as these defendants do) : "But I never published the words complained of at all; those words are English, and all I published was in Chinese."

6. The defence, which pleads over this difficulty, attempts to justify the libel but without condescending, as it seems to me, to proper particulars. A general charge needs specific justification. Where a charge is general in its nature, it is no justification to plead simply that the alleged libel is true; that is not justification but is merely repeating the libel. In such a case the defendant must set out the specific acts and instances on which he will rely in support of his justification. The plaintiff must know the case he has to meet and what acts he is alleged to have committed which justify the general charge against him. In the present case the plaintiff says that the charge made against him is not sufficiently specific to enable him to meet it.

7. I do not think it appropriate to deal with that point at this stage since the plaintiff himself has failed (as I have said) to file evidence denying the truth of the words complained of. I am of the opinion that the plaintiff ought to be given an opportunity to put his house in order by pleading his case properly and by filing evidence along these lines : "I am not now and never have been a member of any triad society." (The defendants will of course be at liberty to reply to that evidence, giving proper particulars of justification, if they can.)

8. I propose accordingly to accede to the application which at my suggestion the plaintiff has made to me, i.e. to adjourn this summons to another date so that these matters of pleading and evidence may be put right. It does not by any means follow that at the restored hearing the court will think it right to grant the interlocutory injunction for which the plaintiff asks. But I think it wrong to drive the plaintiff from the judgment seat without an opportunity of putting right the pleading and evidential points correctly, in my view, taken against him.

9. So I shall stand over this summons to a date to be fixed. The plaintiff having sought an adjournment, and been granted it as a matter of indulgence, must bear the defendants' costs of today which I shall order to be taxed (if not agreed) and paid by the plaintiff to the defendants in any event.