CHRISTIAN ZHENG SHENG ASSOCIATION LTD AND OTHERS v. NEXT MAGAZINE PUBLISHING LTD AND ANOTHER

HCA 563/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 563 OF 2010

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REASONS FOR RULING

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Introduction

1. These are the reasons for my ruling made on 9 December 2013 at the end of a legal argument during the libel trial with a jury (but which took place before the jury was empanelled).  The said argument arose out of the defendants’ objection to the plaintiffs’ inclusion of certain documents in the trial bundles for use by the jury (“jury bundles”).  I ruled in the defendants’ favour.

Background

2. This action was commenced in April 2010.  The plaintiffs have been involved in charity work, the most well-known of which in Hong Kong is a secondary school called Christian Zheng Sheng College (“the College”).  Besides being a secondary school, the College also offers boarding and rehabilitation for adolescent drug abusers.

3. The plaintiffs complain that libelous statements were made by the defendants against them in 3 separate issues of a weekly magazine “Next Magazine” respectively published around 13 and 27 August and 31 December 2009.

4. The defendants deny the claim, contending (among other things) that they can rely on the defence of justification, fair comments, and (in the case of one article) qualified privilege.

The objections

5. Various groups of documents intended to be included in the jury bundles were objected to by the defendants.  The trial was adjourned for half-day or so for the parties to discuss them.  When the hearing resumed, agreement in principle concerning some of them has been reached. 

6. Some documents remained disputed.  They were documents showing expenses incurred for engaging:

(a) a public relations company called A-World Consulting Ltd (“A-World”);

(b) accounting firms called Trade Management Ltd (“Trade Mgt”) and Union Alpha CAAP CPA Ltd (“Union Alpha”).

7. As stated above, the allegedly defamatory words were published respectively on about 13 and 27 August 2009 and 31 December 2009.  The amended statement of claim pleads that expenses were incurred by the plaintiffs to mitigate the damages thus caused.  Those expenses included expenses for press conferences held on:

(1) 19 August 2009;

(2) 11 April 2010.

(particulars (1) and (4), para 21, amended statement of claim)

8. The defendants opposed the A-World documents:

(1) they included items such as retainer fee for the latter half of 2010.  Unless satisfactorily explained, they cannot be related to the August 2009 press conference (as the plaintiffs contended during the hearing);

(2) there is no averment in the pleadings about this (nor in the witness statements) and so the basis for which they were put forth is unknown /unclear to the defendants.

9. They also opposed the Trade Mgt and Union Alpha documents:

(a) accounting expenses allegedly incurred to mitigate the loss have been pleaded.  But the witness statements stated that the accounts were prepared/audited by two other firms;

(b) in any event, in the absence of satisfactory explanation (whether by way of pleadings or witness statements), the preparation of accounts and their audits should be part of the ordinary operating expenses.

10. In short, I agreed with the above objections. Despite the plaintiffs’ attempt to argue otherwise, there were insufficient materials in the trial bundles to explain why the opposed documents should be placed before the jury.  To permit the plaintiffs to do so in such manner carried a real risk of substantial prejudice to the defendants; they would not be able to properly prepare materials to refute those documents.

Conclusion

11. The above were the reasons for my ruling that the opposed documents should not be included in the jury bundles.

Costs order

12. I awarded the costs of the above ruling to the defendants.  The parties’ argument concerning the matter lasted for a substantial part of the hearing on 9 December 2013 (including the time spent on discussion (para 5 above)) (from about 10 am to 3:30 pm).  Trial time should be used for its intended purpose; a trial is not the appropriate occasion for substantial discussions/argument about things like trial bundles.  Further, the dispute was quite independent of the issues which will later fall for determination in this action.

13. That being the case, I disagreed with the plaintiffs’ proposal for those costs to be in the cause of this action, and found it appropriate to adopt the usual rule that costs should follow the event.

14. The trial was adjourned to a date to be fixed because both parties opined that the original estimate of a 10-day trial (the first day was spent on the above dispute) would be insufficient (the new estimate was a 15-day trial).  This was not caused by the fault of only one party.  Thus, the appropriate order would be for the costs thrown away by the adjournment to be in the cause of this action.