DR KI PING KI, PAUL v. NEXT MAGAZINE LTD. and Others

1994, No.A8071

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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The claim

1. This is a defamation action brought by the Plaintiff against the Next Magazine Limited and others in respect of an article which appeared at the 22nd May 1993 issue of the "Next Magazine". The other Defendants are the publisher, editor and printer of the magazine.

The article

2. The Plaintiff developed a drug called Retrogen which he said was able to treat AIDS. In May 1993, Mr Yan, a reporter from the Next Magazine conducted an interview with the Plaintiff. After the interview, Mr Yan had a number of telephone conversations with the Plaintiff as well. The Next Magazine subsequently published the article entitled "Such an effective drugs for AIDS". The four-page article covered many topics and they can be summarised as follows :

(1) The Plaintiff said that he had invented several kinds of drugs including Retrogen for curing AIDS.

(2) None of the drugs invented by him was approved by the authorities.

(3) It would take at least hundreds of clinical experiments over a long period of time before a drug can be approved.

(4) He was unable to find patients in the U.S.A. to conduct experiments and he moved to Uganda in Africa and Mexico to conduct clinical experiments. In 1989, five patients in Uganda were tested for three months and 10 clinical experiments were tried in Mexico. With very little research success, he went to some medical conferences to give presentations.

(5) One of the five patients in Uganda had died of meningitis, he did not know whether the rest of the patients had died.

(6) After meeting difficulties everywhere in the U.S.A., the Plaintiff came to Hong Kong to promote sale of his new drugs for AIDS and often held press conferences for publicity purpose. He was warned by the Department of Health that his press conference would amount to advertising and that he would be prosecuted if he committed the same again.

(7) The Plaintiff had requested Dr Li, a member of the AIDS Foundation in Hong Kong to provide him with patients to conduct clinical experiments. Dr Li, however, was of the view that the information on his new drugs was inadequate. When Dr Li asked him how to arrange the treatment, what quantity of drugs should be used and for how long, the Plaintiff could not give any concrete answer. The AIDS Foundation would not recommend the drugs to be used on dying patients because the drug was lacking in fundamental data.

(8) In European countries and America where AIDS is rampant, quite a number of AIDS patients would take the risk and buy the drugs in the underground market notwithstanding the drugs are not yet approved. The Plaintiff, however, said that he was not prepared to test the law. Even when ten Americans pressed him to sell the drugs, he refused to do so.

(9) The Plaintiff went to countries which would deal with the matter more flexibly to conduct research. He also entered into a packaging contract with the Shaoguan Drugs Manufacturing Factory ("the Shaoguan Factory") to manufacture Retrogen. He said that "Mainland China is more lax, regulations could be changed by them at will, whether to loosen the control is entirely at their whim". He said that he hope to get 1,000 patients to carry out experiments on the drugs.

(10) Doubts were cast by Dr Li on how the Plaintiff could have the confidence to find the 1,000 patients as there were only several tens of HIV carriers in the Guangdong province.

(11) The Health Department of Shaoguan denied having any contact with the Plaintiff and the person in charge did not even know that the state run Shaoguan Factory had entered into a packaging contract with the Plaintiff.

(12) In order to obtain the approval for Retrogen from the Chinese side, the Plaintiff had set up a land selling plan to sell land in Iowa U.S.A. to the people in China and to use the proceeds to establish an AIDS Foundation.

(13) The article concluded that "Although the Plaintiff said his Retrogen could treat AIDS, his AIDS Foundation in mind was not for helping the patients to recover but to help the Chinese AIDS children to have their last dreams fulfilled, for instance, enabling them to go to Disney Land for fun."

3. The Plaintiff complained that the article was defamatory. He relied on 18 matters in the article in support of his claim that the Defendants had defamed him.

The principles

4. As the Plaintiff appears in person, it is necessary for me to set out firstly, the principles to be applied.

The defamatory imputation

5. The gist of the torts of libel and slander is the publication of matter (usually words) conveying a defamatory imputation. A defamatory imputation is one to a man's discredit, or which tends to lower him in the estimation of others, or to expose him to hatred, contempt or ridicule, or to injure his reputation in his office, trade or profession, or to injure his financial credit. The standard of opinion is that of right-thinking persons generally (Gatley on Libel and Slander, para.31).

Imputation of unfitness for profession or calling

6. It is defamatory to impute that a man is unfit for his profession or calling owing to want of ability, learning or some other necessary qualification, or that he has been guilty of any dishonest or disreputable conduct or any other misconduct or inefficiency therein. This applies to any profession or calling, however humble, so long as it is not illegal. "... words may be defamatory of a trader or a business man or professional man, though they do not impute any known fault or defect of personal character. They can be defamatory of him if they impute lack of qualifications, knowledge, skill, capability, judgment or efficiency in the conduct of his trade or business or professional activity ..." (Gatley para.60)

Natural and ordinary meaning

7. Words are normally construed in their natural and ordinary meaning, i.e. in the meaning in which reasonable men of ordinary intelligence, with the ordinary man's general knowledge and experience of worldly affairs, would be likely to understand them. The natural and ordinary meaning may also "include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words." (Gatley para.93)

Legal innuendoes

8. However, words may convey a defamatory imputation only by reason of some special knowledge available to those to whom they were published, of the circumstances of publication, or of some special meaning or inference to be attached to or drawn from the words. The words are then said to carry an innuendo. In such a case the question is what meaning would be attached to the words by a reasonable man having special knowledge of any relevant facts or meanings (Gatley para.94).

The general burden

9. The general burden of proof is on the plaintiff, so that it is for him to show, if he relies on the natural and ordinary meaning, that the words convey a defamatory imputation, or, if it is disputed what defamatory imputation they convey, that they convey the most serious imputation on which he relies. But if either party alleges that the words were reasonably to be understood in a meaning other than their natural and ordinary meaning, and in that meaning were either defamatory or not defamatory, as the case may be, the burden of proof is on that party (Gatley para.114).

Judge and jury

10. It is well settled that the question whether words which are complained of are capable of conveying a defamatory meaning is a question of law and is therefore one calling for the decision of the court. If the words are so capable then it is a question for the jury whether the words do in fact convey a defamatory meaning (Gatley para.119).

11. As I am sitting as both the judge and jury in this case, I have to consider whether the words complained of are capable of conveying a defamatory meaning and if they are, I have to further consider whether they in fact convey a defamatory meaning.

Reasonableness

12. In determining whether the words are capable of a defamatory meaning the judge will construe the words according to the fair and natural meaning which would be given them by reasonable persons of ordinary intelligence, and will not consider what persons setting themselves to work to deduce some unusual meaning might succeed in extracting from them (Gatley para.120).

Two meaning reasonably possible

13. But where the words complained of are ambiguous, that is, reasonably capable of either an innocent or a defamatory meaning, it is a question of fact for the jury to determine in which of the two meanings they were understood by those to whom they were published (Gatley para.124).

The judge's ruling : natural and ordinary meanings

14. Whether the plaintiff relies on one or on more than one defamatory meaning as the natural and ordinary meaning of the words, the judge must rule in relation to each meaning relied on whether the words are capable of having that meaning. His functions are not merely confined to ruling whether or not the words are capable of a defamatory meaning (Gatley para.125).

Defences

15. In this case the Defendant is relying on the defence of justification and fair comment.

Justification

16. The general rule is that it is a defence to an action for libel or slander that the words are true in substance and in fact. (Duncan and Neill on Defamation 2nd Ed., para.11.01) This defence is called justification.

17. The basis of the rule that truth is a defence to an action for defamation was stated by Littledale J in McPherson v. Daniels (1829) 10 B & C 263 at 272 as being that :

"The law will not permit a man to recover damages in respect of an injury to a character which he does not or ought not to possess."

(Duncan & Neill para.11.02)

18. The general rule is that the defendant's state of mind is irrelevant to the issue of justification. If the words complained of are true in substance and in fact the defendant will not be liable even though he published the words with the express intent of causing damage to the plaintiff. The burden of proof is on the defendant.

19. In order to succeed in a defence of justification it is necessary for the defendant to prove the truth of the words complained of not only in their literal meaning but also in such inferential or innuendo meanings as the jury may find the words to bear. Furthermore, the words in their context may amount to a general charge against the plaintiff for which the proof of one or more specific allegations may not provide an adequate defence (Duncan & Neill para.11.05).

Partial justification

20. It is not necessary for the defendant, even at common law, to prove the truth of every detail of the words. In Edwards v. Bell (1824) 1 Bing 403 at 409, Burrough J put the matter as follows :

"As much must be justified as meets the sting of the charge, and if anything be contained in the charge, which does not add to the sting of it, that need not be justified."

(Duncan & Neill para.11.06)

21. Where the words complained of contain more than one charge or are otherwise severable the defendant may justify part only of the defamatory words, ... (Duncan & Neill para.11.07). This is recognised by s.26 of the Defamation Ordinance, Cap.21 which is as follows :

"26. Justification

In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges."

Fair comment

22. The main principles relating to the defence of fair comment may be stated as follows -

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

(b) the comment must be based on fact;

(c) the comment, though it can consist of or include inferences of fact, must be recognisable as comment;

(d) the comment must satisfy the following objective test : could any fair-minded man honestly express that opinion on the proved facts?

(e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.

(Duncan & Neill para.12.02)

Public interest

23. InLondon Artists Ltd. v. Littler [1969] 2 QB 375 at 391, Lord Denning MR spoke of the scope of public interest as follows :

"There is no definition in the books as to what is a matter of public interest. All we were given is a list of examples, coupled with the statement that it is for the judge and not the jury. I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on, or what may happen to them or others; then it is a matter of public interest on which everyone is entitled to make fair comment."

Facts

24. The comment must be based on fact. It is a necessary ingredient of fair comment that the comment shall be based on facts which are either stated by the commentator or indicated by him with sufficient clarity to enable the reader or listener to ascertain the matter on which the comment is being made. A defendant cannot defend a statement as comment, however, if he has not set out the facts on which he based the statement nor, at the least, indicated in general terms what those facts were (Duncan & Neill para.12.05).

Partial defence

25. The defence of fair comment will not fail by reason only that the truth of every allegation of fact is not proved. This is stated in s.27 of the Defamation Ordinance :

"27. Fair comment

In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved."

Limits

26. The limits of the right of comment are very wide as appears clearly from the summing up of Lord Hewart CJ in Stopes v. Sutherland, where he said :

"What is it that fair comment means? It means this - and I prefer to put it in words which are not my own; I refer to the famous judgment of Lord Esher MR in Merivale v. Carson 'Every latitude', said Lord Esher, 'must be given to opinion and to prejudice, and then an ordinary set of men with ordinary judgment must say (not whether they agree with it, but) whether any fair man would have made such a comment. Mere exaggeration, or even gross exaggeration, would not make the comment unfair. However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limits. The question which the jury must consider is this - would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said?' Again as Bray J said in R. v. Russell: 'When you come to a question of fair comment you ought to be extremely liberal, and in a matter of this kind - relating to the administration of the licensing laws - you ought to be extremely liberal because it is a matter on which men's minds are moved, in which people who do know, entertain very very strong opinions, and if they use strong language every allowance should be made in their favour. They must believe what they say, but the question whether they honestly believe it is a question for you to say. If they do believe it, and they are within anything like reasonable bounds, they come within the meaning of fair comment. If comments were made which would appear to you to have been exaggerated, it does not follow that they are not perfectly honest comments.' That is the kind of maxim which you may apply in considering whether that part of this matter which is comment is fair. Could a fair-minded man, holding a strong view, holding perhaps an obstinate view, have been capable of writing this? - which, you observe, is a totally different question from the question, do you agree with what he has said."

Express malice

27. The defence of fair comment can be defeated if the plaintiff proves that when the defendant published the words complained of he was actuated by express malice. Furthermore, malice may also be relevant on the issue of damages and in certain limited circumstances in relation to a defence of justification (Duncan & Neill para.17.03).

28. Horrocks v. Lowe [1975] AC 135 at 149 is a case dealing with the defence of qualified privilege and the effect of express malice, but the speech of Lord Diplock provides an important guidance in which malice has to be considered.

"... So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. 'Express malice' is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove. But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interest.

...

Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, 'honest belief'. If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. ...

Even a positive belief in the truth of what is published on a privileged occasion - which is presumed unless the contrary is proved - may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or illwill towards the person he defames. ... A defendant's dominant motive may have been to obtain some private advantage unconnected with the duty or the interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true.

Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. The motives with which human beings act are mixed."

The 18 allegations

29. I will deal with the 18 paragraphs of the article which the Plaintiff said had defamed him.

Para.1

"SUCH AN EFFECTIVE DRUG FOR AIDS

An American Chinese claimed to have invented a new drug which could cure the incurable AIDS, but in the U.S.A. no one was willing to carry out clinical experiments on the drug. He went to Africa and found five patients to conduct experiments. One of them died out of meningitis after taking the drug. Four of them could not be traced. He accordingly went to Mexico and claimed to have conducted ten experiments there. This drug was not allowed to be registered in the U.S.A. and Hong Kong, and no medical practitioner was willing to find patients for carrying out clinical experiments. So this inventor hoped to take advantage of the laxity of the laws of China to find 1,000 AIDS patients in the Mainland China to conduct clinical experiments. Furthermore, without the support of data, he had entered into a packaging contract with a drugs manufacturer, preparing for a mass production (of his new drug)."

Four separate complaints were raised on this paragraph.

1. The first complaint

The article alleged that he was an American Chinese. In fact he is a British citizen and holding a U.K. passport. The author used his imagination to fabricate the story and framed him as an American. This suggested that the Plaintiff was not an honest person.

The ruling

30. The words used in the article was "美國華人" which means "a Chinese in the United States" or "American Chinese". In my view, this description, however translated, does not and is not capable of bearing any defamatory meaning. The evidence showed that the Plaintiff went to study in the United States in 1972. He returned to Hong Kong permanently in 1990. Between 1972 to 1990, he came to Hong Kong once every few years. While he was in the U.S. he studied in the Ohio State University, obtaining a Ph.D. degree in biochemistry in 1984. Between 1984 and 1990, he conducted research in the U.S. He developed the drug Retrogen in the U.S. By no means of imagination could one say that the author of the article had fabricated a story to defame the Plaintiff.

2. The second complaint

The Plaintiff said that the article referred to the absence of supporting data. In fact he had done many studies to support the advocacy of the drugs. Five abstracts had been published in conferences. This cast doubt on his professional capacity as a scientist.

The ruling

31. In my view, the words complained of by the Plaintiff are not defamatory and the Defendants have made out a case of justification. It is clear from the evidence adduced that there was insufficient data on the drug. The data was lacking for the drug to be used in clinical tests on patients.

15 testings

32. The evidence showed that only 15 patients had been tested with Retrogen in the U.S. The only patient that was tested with the drug was the Plaintiff himself. In Uganda, six patients were tested, one was used as a control and in Mexico, 15 patients were tested with the drugs.

Dr Ng's evidence

33. According to Dr Steven Ng, an expert of the Defendants, in the U.S., before a drug is marketed commercially, its clinical claims of indication, effectiveness and safety have to go through a very stringent series of tests :

(a) Pre-clinical investigations

This involves testing on animals to show its adverse effects, toxicity and death. Long term drugs will have to be administered for a sufficiently long period of time to determine the possible toxic effects.

(b) Clinical investigations

Once clinical studies have established the relative safety of the drug on animals, clinical study on humans can begin. There are three phases of human investigation, each involving a large number of patients :

(i) Clinical pharmacology

This involves 20 to 80 patients to test the level of toxicity on human beings, the pharmacologic effect and followed by early dose - ranging studies in patients for safety and effectiveness.

(ii) Clinical investigation

This consists of controlled clinical trials designed to demonstrate the effectiveness and safety. They are performed on closely monitored patients of limited number. Seldom will this phase go beyond 100 to 200 patients on drug.

(iii) Clinical trials

These are performed after effectiveness has been basically established and are intended to gather additional evidence of effectiveness for specific indications and more precise definition of drug related adverse effects. Trials on this phase are usually carried out in several hundred to several thousand subjects.

Approval of drugs in U.S.

34. In the U.S. the approval of drugs is done by the Food and Drug Administration ("FDA"). Even after the FDA approval, there should be clinical trials (Phase 4 studies) to elucidate the incidence of adverse reactions, to explore a specific pharmacologic effect, or to obtain more information of a circumscribed nature. The announcement of success of the new drugs is allowed only after FDA's approval and usually accompanied by the publication of the results of clinical trials.

Hong Kong procedure

35. In Hong Kong, the regulatory body governing pharmaceuticals is the Pharmacy and Poisons Board ("the Board"). Hong Kong has very little original manufacturing of western medicine and no indigenous western medicine has ever been developed by a Hong Kong institution to the stage that will require approval from Hong Kong government as the country of original production. The Board depends for its own approval of drugs on the approval of other countries, namely, approval from the country of origin and two advance countries.

Plaintiff's data insufficient

36. The Plaintiff by his own admission in the interview with Mr Yan agreed that the number of tests he had carried out was insufficient.

37. Of his five publications, four abstracts were published in international AIDS conferences and one letter was published in a U.K. publication entitled AIDS 1989 Vol.3, no.12, page 858.

38. According to Dr Ng, whose evidence I accept, the abstracts and letters are considered minor publications by the scientific community, as they are generally not peer reviewed. The abstracts contribute little to scientific knowledge and letters serve to communicate only preliminary ideas or data. They are considered more as opinions rather than scientific facts. Conference abstracts are sometimes reviewed by a selection committee but the criteria are very loose. They are usually judged on topical interest and not scientific rigor. Again, they are used to communicate preliminary results. Definitive results must always be published in a peer reviewed journal as a scientific article. Peer review would involve questioning by a panel of experts on the matter.

39. Dr Ng was of the view that the publications by the Plaintiff can hardly qualify as serious publications or strong evidence of scientific accomplishment.

Dr Li's evidence

40. The evidence of Dr Li of the AIDS Foundation in Hong Kong points equally to the insufficiency of data of the drug. Dr Li had exchanged correspondence with the Plaintiff from September 1987. The Plaintiff approached him regarding the possibility of conducting a clinical trial on AIDS patients in Hong Kong with the product Retrogen.

41. Between 1987 and 1990, the Plaintiff corresponded with Dr Li and provided him with information on Retrogen and to give clarifications which would be necessary before approval could be obtained from the local ethics committee to proceed with the clinical trial. The information and data on Retrogen provided to Dr Li by the Plaintiff were mainly in the form of descriptive summaries of the properties of Retrogen by the Plaintiff as well as copies of newspaper cuttings. He supplied Dr Li with letters from laboratories which demonstrated evidence of anti-HIV effect of Retrogen in the laboratory setting.

42. In 1990, Dr Li considered that there was not enough information on Retrogen to obtain approval from the Medical and Health Department for clinical trials on patients in Hong Kong. This was because the information supplied to him by the Plaintiff only included his summary of the properties of Retrogen and past experience of its use. No information about the study design and details of the analysis was given. The only aspect which was detailed by the Plaintiff involved testing of the drug in the laboratory. There was insufficient data on the use of Retrogen on healthy human subjects or patients with other illnesses, in particular, concerning the clinical efficacy, dose regiment and safety profile.

43. Subsequently, Dr Li was informed by the Plaintiff that Retrogen has been used in China to treat herpes and other viral infection with good result and no toxicity. Also in 1992, the Plaintiff informed Dr Li that he had treated six patients in Africa with Retrogen. According to the results of the treatment, some of the patients had increased in immune cells. However there was only one patient serving as the control and the trial only lasted for 10 weeks.

44. Dr Li said that Retrogen has not been approved in any country for the treatment of HIV infection or AIDS. Eight years after the development of Retrogen, it still has not been approved for large scale human trials in the U.S.

3. The third complaint

The article said that no one was willing to do a clinical study in America. The Plaintiff said in fact most of the patients under treatment in Mexico were Americans. Further, there were two American doctors who had shown their interest in using Retrogen to treat their patients. This suggested that he was not successful in U.S.A. and therefore had to conduct the experiment in Africa and Mexico. He claimed that this "Made me look like an idiot".

The ruling

45. The evidence established that in U.S.A. the Plaintiff was the only person who has been injected with Retrogen. The Plaintiff said that two medical doctors in U.S. were interested in using Retrogen to treat their patients. According to the documents produced by the Plaintiff, one Dr Marcus Conant wrote to the Plaintiff on 24th May 1992. The letter reads :

" I thank you for your recent letter regarding Retrogen.

As you may know, we are currently caring for some 3,000 HIV positive men and have an active clinical research center associated with our practice.

If you would be interested in doing phase I and phase II studies of Retrogen on HIV positive patients, please contact me or my associate, Joe Robinson at the number noted below."

The letter did not show that Dr Marcus Conant was interested in letting his patients try Retrogen. On the contrary, the letter was made in response to the enquiries made by the Plaintiff.

46. The two other letters produced by the Plaintiff showed that an individual and a group were interested in obtaining Retrogen and asked for information on this product.

47. All these fall short of showing that the U.S. doctors were prepared to administer the drugs on their patients. In my view, the sentence that "In the U.S.A. no one was willing to carry out clinical experiments on the drug" is not capable of bearing any defamatory meaning and is also shown to be true.

4. The fourth complaint

The Plaintiff said that the article accused him of taking advantage of the Chinese law to do a clinical study in Chinese. This is not true because to get approval in any country, one has to do clinical studies in that particular country.

The ruling

48. In the interview the Plaintiff was asked by Mr Yan whether because of the problems he had encountered in the U.S. and the difficulties of going to Africa that the Plaintiff wished to conduct the testing of the drugs in China. Although the Plaintiff denied that it would be easier to get things done in China, he referred to the inflexibility of the approach taken in U.S. and in Hong Kong in solving the AIDS problem. The "inflexibility" was clearly reflected in the stringent requirements by the FDA on the testing of the drugs leading to its approval. Throughout the interview, the Plaintiff lamented the rigidity of the systems in U.S. and Hong Kong in respect of the approval of drugs for the treatment of AIDS. He stated that although the requirement in Europe was a little flexible, it still required numerous testing of the drugs before approval could be given. He recognised that the data for the 15 testing of Retrogen was insufficient. He further said the only method was to carry out the tests in China. This shows that the Plaintiff's intention was to avail himself of what he considered to be the more flexible approach in China to carry out the clinical tests.

49. In my view, the passage is not defamatory and the Defendants have established the truthfulness of this matter.

5. Para.5

"Five Patients Were Treated With New Drugs,
No One Knew Whether They Were Alive Or Not"

The complaint

50. The Plaintiff said that this part of the article is not true because the patients were treated for a duration of 10 weeks only. At the end of the trial period, he only knew that four of them were still alive and their health conditions had been improved. The fifth one died of meningitis which was not related to the treatment. The Plaintiff submitted that this passage imputed that he was not responsible in following up on or taking care of the patients and that he was taking advantage of the African patients.

The ruling

51. In the interview, the Plaintiff agreed that he did not know how were the 15 patients who had been treated with Retrogen. He said that they had used the Retrogen and their response within the three months treatment had been very good. However, he had no idea how they were after the treatment. He had no idea whether the patients were dead.

52. The interview between the Plaintiff and Mr Yan was repeated in paragraph 10 of the article in which the Plaintiff admitted that he had not constantly monitored the condition of the patients and that "he did not even know whether the rest of those patients had died by now".

53. The passage complained of is a sub-title of the preceding paragraphs which included paragraph 10. The Defendants have been able to prove that at the time of the interview the statement concerning the absence of knowledge of the live or death of the patients who had been treated with the drugs is true.

54. The Plaintiff complained that the article did not state that during the three months period the response of the patients were good. The omission to the response of the patients during the three months period does not, in my view, render the subtitle defamatory or that it would constitute evidence of express malice. The fact remains that the drugs was only administered on patients over a short period of time and only 15 patients were used for clinical treatment of the drug and eight years after the development of the drug approval has still not be obtained.

6. Para.9

" In the year 89, he had a package of 'Retrogen' transported to Uganda to test on five patients there for three months. Last year he entrusted medical practitioners in Mexico to conduct ten clinical experiments, and with that little research success, he went to some medical conferences to give presentations."

The complaint

55. The Plaintiff said that the article insulted him that he was presenting research results everywhere. The accusation is defamatory. His presentation and publications were peer reviewed and published in world famous journals. The Plaintiff also complained that this part of the article suggested he made presentation with very little data, casting doubt on his ability as a scientist.

The ruling

56. I do not find the statement that "the Plaintiff had presented the research results everywhere" is defamatory. By his own evidence the plaintiff said that he had made presentations and published extracts in international conferences.

57. In regard to his contention that that he was defamed because the article suggested that he was making presentations with very little supporting data, I am also satisfied that this is also not defamatory. The statement is true. I accept Dr Ng's view that the extracts contain only preliminary results.

7. Para.10

" There are tens of thousands of AIDS patients in Africa, but Ki Ping-ki could only find five patients for experiments."

The complaint

58. The Plaintiff said this is defamatory. In doing any clinical trials, it is more effical to do a small trial with fewer patients. If it is successful, a larger trial would be conducted to eliminate the possible danger exposed to the patients. This suggested that he was incapable to find patients and implied that he was not a good scientist.

The ruling

59. I am of the view that the words do not bear the defamatory imputation as suggested by the Plaintiff. The truth of the matter is that in Africa only five patients carried out the experiment on Retrogen. The Plaintiff agreed that the experiment was not carried on because of the lack of funds to finance further experiment.

8. Para.12

" After meeting difficulties everywhere in the U.S.A., Ki Ping-ki recently came to Hong Kong to promote sale of his new drug for AIDS, and often held press conferences for publicity purpose."

The complaint

60. The Plaintiff said that the Defendants accused him of selling the experimental compound in Hong Kong. He has never sold or intended to sell the experimental compound in Hong Kong. It is suggested that he was committing a crime in Hong Kong.

The ruling

61. The Plaintiff's interpretation of the words is incorrect. The ordinary and nature meanings of the words is plain, namely that the Plaintiff came to Hong Kong to promote his new drug for AIDS and often held press conferences to publicise the matter.

The press conferences

62. The Plaintiff admitted that he had held about ten conferences in Hong Kong and five were held between January and May 1993. He said that the purpose of holding the conferences was to give its research results on the experiments he had conducted in Uganda. The conferences were centred on the discovery of his compound.

63. It is clear that the conferences went beyond merely telling the press about his discovery. In a press conference invitation dated 22nd December 1992 issued by the Plaintiff as the President of the Hong Kong Washington Co. for a conference to be held on 23rd December 1992, it was stated that :

"Hong Kong Washington Co. has made an agreement with Guangdong Shaoguan Pharmaceutical Factory to produce a potent anti-HIV compound called Retrogen in People's Republic of China. Retrogen has been tested clinically in Mexico and Uganda to prove its efficacy. The first year projected production will be at least 200,000 dosages."

The invitation went on to say that :

"The company was planning to donate US$3 million worth of Retrogen to the AIDS patients in the world who are facing extreme financial difficulties. However, Retrogen will not be used or distributed in Hong Kong and PR China because Retrogen has not been registered."

The contract

64. By a contract dated 17th December 1992, signed by the Plaintiff as the President of the Hong Kong Washington Co. and the Shaoguan Factory, the Shaoguan Factory agreed to package Retrogen which was named in the contract as the "anti-AIDS effective drug".

Blatant publicity

65. In my view the Plaintiff had carried out the most blatant form of publicity for his drug. By the press invitation the Plaintiff wanted to show that the development of the drug, although referred to as "the compound", had gone beyond the experimental stage, otherwise he would not be planning to donate the drugs to AIDS patients. Promotions were made notwithstanding it had not even passed the clinical pharmacology stage of the investigation. He was trying to give the maximum exposure of his drug even when no approval to its marketing had been given.

66. It is equally clear from the record of interview between Mr Yan and the Plaintiff that it was the opinion of the Plaintiff that if the testing of his drugs in China on the patients was successful, people from around the world would go to China to buy the drugs.

67. The evidence show that the Department of Health, by a letter dated 9th February 1993, referred to the press conference invitation and informed the Plaintiff that he had contravened s.3 of the Undesirable Medical Advertisement Ordinance by publicising the said advertisement. He was warned that if similar advertisements should appear in the future, prosecution will be taken against him. The warning letter was referred to in the article.

68. The evidence further showed that the Plaintiff had held further press conferences and was charged after he held a further press conference on 22nd October 1993. He was eventually tried in August 1994 and was acquitted of the charge.

69. The newspaper reports which were relied upon by the Plaintiff made it clear that it was the allegation of the Department of Health that the Plaintiff advertised Retrogen as a drug which could cure AIDS. In the circumstances, the passage has been justified by the facts and they are not capable of bearing any defamatory meaning against the Plaintiff.

9. Para.13

" The Department of Health pointed out that his press conferences were tantamount to "advertising", warning him that he would be prosecuted if he committed the same again."

The complaint

70. The Plaintiff said that this suggested that he had broken the law of undesirable medical advertising. The Defendants accused him of advertising in the press conference even before the trial in the court. On 1st August 1994, he was clear of such charge. He alleged that the Defendants had been obstructing justice in the article.

The ruling

71. I have already dealt with the question of advertisement. The question of criminal trial simply did not arise at the time when the article was published. The Plaintiff agreed that in May 1993 the Department of Health had not yet charged him with any offence. The paragraph is plain on its meaning, it is justified by the warning letter issued by the Department of Health. The Plaintiff has never denied receiving the letter. On the contrary, subsequent events show that the Department of Health did pursue and charge the Plaintiff after the warning was not heeded.

10. Para.16

"... Even when Li Chung-ki inquired of Ki how to arrange the treatment, what quantity of drugs should be used and for how long, Ki could not give any concrete answer."

The complaint

72. The Plaintiff said what the Defendants had written was untrue because he had sent Dr Li the clinical report with the treatment protocol from the United States. The report has also been published and is available in the public domain. This also suggested that the Plaintiff was not a good scientist.

The ruling

73. The complaint together with some others are not set out in the Statement of Claim but rather in the Further and Better Particulars of the Statement of Claim.

74. It is clear from the evidence that Dr Li did not ask the Plaintiff how to arrange the treatment and what quantity of drugs should be used and for how long. However it is equally clear that the data provided by the Plaintiff to Dr Li was lacking in information. Dr Li came to the view that because of the insufficiency of data, the AIDS Foundation was not prepared to recommend the patients to try out the drug. The information provided by the Plaintiff after the Uganda experiment also lack treatment protocol or dosage.

75. In any event, I am satisfied that the defence of justification still succeeds by virtue of s.26 of the Defamation Ordinance. The failure of the Defendants to establish the truth regarding the questions raised by Dr Li do not materially injure the Plaintiff's reputation having regard to the truth of the remaining charge, namely that the Plaintiff was unable to provide data on the treatment protocol and dosage to Dr Li.

11. Para.17

"Also Not Suitable For Dying Patients

Notwithstanding that a certain drug is not yet approved by the Department of Health, Hong Kong, if there is a certain extent of proof of the effectiveness of the drug, a dying patient could still try the new drug under the pretext of 'compassionate emergency application'. Li Chung-ki indicated that over the years, there were several applications of this kind of drugs (for aids) to AIDS patients. However, as Retrogen was lacking even in the fundamental data, the Committee would not list it in the recommended list. 'I feel it unfair to the patients to try out such a drug'".

The complaint

76. The Plaintiff said that it was not true that there was a lack of information on the compound Retrogen because his research had been published in the public domain and is available everywhere in the world. This passage suggested that he was not a good scientist.

The ruling

77. The Defendants relied on fair comment in relation to the sentence that "Retrogen was lacking even in the fundamental data". I accept that it is a matter of public interest for a newspaper or a magazine to comment on subjects such as AIDS and a drug which allegedly could treat or cure AIDS. I find that fundamental data on the property was lacking on a drug which was claimed that it could treat or cure AIDS. This is also true in respect of the information provided to Dr Li and the information published in the conference extracts and journals. I am satisfied that the comment is reasonable and fair.

12. Para.19

" Facing these queries, Ki Ping-ki indicated that he did not want to test the law by himself. Therefore, even ten Americans and begged him to sell the drug, he was unmoved. 'The risk was very big if I gave them the drug. I am not a Gay and there is no need for me to struggle to live.' ..."

The complaint

78. The Plaintiff said that he did not make such a statement. He was not that insensitive. This suggested that the Plaintiff was a selfish person. This will make the gay community dislike him and this is a personal attack.

The ruling

79. Mr Wong, Counsel for the Defendants, accepted that in the interview, the Plaintiff did not say the exact words which were in quotation. It is, however, clear from the transcript of the interview that the quoted words contained the gist of what he said in the interview. In Item 41 of the transcript, the Plaintiff said that if the drugs were given by him, the risk would be very high. In Item 43, he said that he would not take the risk because this would involve breaking the law. In Item 51, he stated that the gays in order to struggle to live, did not care if they were breaking the law. In Item 62, Mr Yan asked "So, that means your psychology is different from theirs. You are not gay ..." The response of the Plaintiff at Item 63 is :

"I am different! Of course! Of course I'm different! Of course! For that group of people, it doesn't matter. You arrest me, go ahead! I, I'm about to die. Maybe I, I would have been infected as well, he thinks! Right? It doesn't matter for him to be open! It, the Sixty Minutes took pictures of him, he didn't care. No one would arrest him!"

In my view the words were not capable of defamatory meaning and in any event, the words were true in substance and in fact.

13. Para.20

"Take Advantage Of The Mainland China - Find People For Experiments"

The complaint

80. The Plaintiff said that this suggested that he was taking advantage of the Chinese people. There is no evidence that he was taking advantage of anyone.

The ruling

81. It is clear from the interview that the Plaintiff was complaining about the inflexible approach of U.S. and Hong Kong because of the regulations. The inference one is entitled to draw from the discussions is that the Plaintiff intended to carry out the test in China because the approach there was more flexible.

82. In my view, the words complained of are not capable of bearing any defamatory meaning and in any event, it is shown to be true that the Plaintiff wished to conduct the testing in China because of what he considered to be its flexible approach.

14. Para.21

"The Mainland China is more lax, regulation could be changed by them at will, whether to loosen the control is entirely at their whim."

The complaint

83. The Plaintiff said that he did not make such a statement. The statement should read as "Under special circumstances such as an AIDS outbreak, the Chinese can speed up the approval process". The passage suggested that he had attacked the Chinese Government. The passage also insulted China.

The ruling

84. Mr Yan said that the quotation was taken directly from what the Plaintiff told him during one of their telephone conversations. I accept what he said is true. I do not find it surprising that he said those words to Mr Yan. The words in their natural and ordinary meaning could not be defamatory of the Plaintiff.

85. I have already dealt with the Plaintiff's attitude on the testing of the drugs earlier under the fourth complaint of Para.1 of the article. The defence of justification is made out.

15. Para.22

" But Li Chung-ki queried how he could have the confidence to find 1,000 patients. 'I do not know what kind of information he has. Guangdong Province has only declared that there are several tens of HIV carriers.' (Li) was worried if there is someone publishing uncertified drug, 'or who is speaking too much, this will only mislead the citizens.'"

The complaint

86. The Plaintiff's case is that it has been reported that there are more than 1,000 cases of AIDS in China in 1993. The Defendants did not confirm Dr Li's data and used his statement to defame him. He was defamed as not being a very good scientist.

The ruling

87. The paragraph complained of is not defamatory of the Plaintiff. The report by the Defendants of Dr Li's comment could only be in the nature of a fair comment.

88. According to an article entitled "AIDS and HIV infection in China" written by Sun Xinhua and others, by 31st December 1993, 1,243 HIV positive persons had been reported to the Ministry of Public Health of China from 21 of China's 30 Provinces Municipalities and Autonomous Regions. The largest concentration of AIDS and HIV infection was in Yunnan with 991 cases followed by Guangdong of 74 cases.

89. Items 95, 96 and 97 of the transcript of interview referred to the testing of 1,000 AIDS patients in China. When Mr Yan asked whether it was

the Plaintiff's estimate that there were 1,000 patients in the Pearl River Delta, he confirmed that there were 1,000 patients.

90. Dr Li confirmed that when Mr Yan informed him that the Plaintiff intended to test 1,000 patients, he was under the impression that the test was to be carried out in Guangdong. As the AIDS population in Guangdong was about 74, he doubted how the Plaintiff could find 1,000 patients. Undoubtedly it was natural and necessary for someone in Dr Li's position, who was a specialist in treating HIV and AIDS, to make the comment.

16. Para.23

" The Health Department of Shaoguan Did Not Know The Matter

Although Ki Ping-ki said he had entered into a packaging contract for his new drug with Shaoguan drugs manufacturing factory, Mr Ma of the Drugs Certifying Section of the Health Department of Shaoguan, however, denied having had any contact with Ki Ping-ki. He did not even know that the state-run Shaoguan drugs manufacturing factory had entered into a packaging contract with Ki."

The complaint

91. The Plaintiff said that the paragraph is not true because he had been contacting with the Director of the Health Department in Shaoguan and the Defendants have asked the wrong person at that time. The Defendants used him to attack the Shaoguan Department of Health by suggesting that they did not know what was going on. This also suggested that he was a liar.

The ruling

92. Mr Yan had before writing the article telephoned the Shaoguan Department of Health and he was connected to Mr Ma who claimed to be the Section Head of the Drugs Certifying Section. The conversation between Mr Yan and Mr Ma was, of course, hearsay in nature. However, based on the conversation, the conclusion reached by Mr Yan was that the Department of Health of Shaoguan did not know about the packaging contract. The mere fact that the Shaoguan Health Department was not aware that the Shaoguan Factory had entered into the contract with the Plaintiff did not mean that the statement was defamatory of the Plaintiff.

93. The Plaintiff also referred to an inspection certificate issued by the Shaoguan Drugs Certification Section. The document purported to record the carrying out of an inspection on Retrogen. The date of the report was 18th October 1993 which was sometime after the article had been published. The Plaintiff did not explain how he obtained this document. This document does not contradict the conclusion reached by Mr Yan that the Department of Health of Shaoguan had no knowledge of the packaging contract.

17. Para.29

"Establishing A Foundation Not For Curing Aids

In order to obtain the approval for Retrogen from the Chinese side, Ki Ping-ki also had a 'land selling' plan. He said that three years ago, he used only a few thousand U.S. dollars to buy a piece of 40,000 odd feet empty land in Chreston Town, Iowa. 'I planned to have the land divided into 5,000,000 odd pieces, selling each square inch at a price of 50 RMB to the Mainland people, using the proceeds to establish an AIDS Foundation."

The complaint

94. The Plaintiff said that the Defendants defamed him of corrupting the Chinese Government. This passage also attacked the China as a corrupting government.

95. The Plaintiff complained that the Defendants accused him of setting up and donating monies to the AIDS Foundation because the Plaintiff wanted to get approval for his experimenting drugs in China.

The ruling

96. In my view the sentence that "In order to obtain the approval for Retrogen from the Chinese side, Ki Ping-ki also had a land selling plan." does not bear the meaning relied upon by the Plaintiff, namely that he was corrupting the Chinese officials by the land selling plan.

97. According to the Plaintiff, he had registered in the State of Iowa an entity called the Iowana College. Although it was described as a college, this entity did not have any premises nor did it carry out any teaching or any activities at all. This college intended to sell to the people in China a piece of land in the U.S. which would be divided into small fractions. Money raised by the sale of land would be used for various purposes including donation to the AIDS Foundation which was to be set up by the Plaintiff.

98. The making of the packaging contract and the land selling plan were carried out at about the same time. The impression is clearly that these two matters are related.

18. Para.31

" Although Ki Ping-ki said that his Retrogen could treat AIDS, his AIDS Foundation in mind was not for helping the patients to recover, but to help the Chinese AIDS children to have their last dreams fulfilled, for instance 'Enabling them to go to Disneyland for fun.'"

The complaint

99. The Plaintiff said that he did not make such a statement. It should be written as "Besides using the funding to save the patients, it is also used to fulfil the last dreams to those kids who are not able to be saved". This passage defamed him for not being a good scientist. He was doing something not for the purpose of treating or curing AIDS.

The ruling

100. There was a dispute between the Plaintiff and Mr Yan whether the Plaintiff told him that the AIDS Foundation was set up not for the purpose of helping the patients to recover. On a balance of probability, it is unlikely that if the Plaintiff was to set up the AIDS Foundation, he would inform others that the purpose was not for the purpose of helping AIDS patients. The likelihood is that Mr Yan had made a mistake in this regard. I accept that this is an innocent mistake. I am satisfied that reliance can be placed on s.26 of the Defamation Ordinance. The Foundation was to be set up also for other purposes such as helping the dying AIDS children to fulfill their last dreams.

Express malice

101. There is no evidence that Mr Yan has any express malice in writing the article which otherwise will defeat the defence of fair comment or justification.

Conclusion

102. The Plaintiff has failed in his claim and judgment is entered for the Defendants with costs of the action.