LI YAU WAI, ERIC v. GENESIS FILMS LTD

Head-note

Breach of confidence - libel - unauthorised use of photograph in a film - damages

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The plaintiff, who was not an actor but a full-time life insurance salesman, allowed his photograph to be taken by the defendant film company on the understanding that he would be considered for casting in a future film. Without his permission, the film company used the photograph as a prop in a ribald comedy called "Seven Angels" which was shown at cinemas throughout Hong Kong.

Held:

The defendant's conduct amounted to

The Court awarded damages of $25,000, and issued an injunction preventing the film being shown with the scenes featuring the plaintiff's photograph.

IN THE SUPREME COUNT OF HONG KONG

HIGH COUNT

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JUDGMENT

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I.    FINDINGS OF FACT

1. A Cantonese film (with English sub-titles) called "Seven Angels" began playing in public cinemas in Hong Kong in late November 1985. Up till the end of December 1985, it was screened over a thousand times at thirty-six different cinemas throughout Hong Kong. After that initial extensive screening in late 1985, the film has only been shown occasionally in various cinemas scattered around Hong Kong.

2. The film was made in mid-1985 in Hong Kong by Genesis Films Limited ("Genesis"), a company incorporated in Hong Kong.

3. It is not unfair to describe the film as a bawdy comedy. Much of the humour is very near the knuckle. The film was rightly rated as, "Not suitable for children".

4. In a nutshell, the plot was that a squad of seven policewomen were given an undercover assignment masquerading as a group of bar-girls. In charge of that squad was a woman police sergeant who had been a widow for ten years. She was landed with the job of instructing her squad on how to be bar-girls rather than police women. Several of the scenes are located in what purports to be the home of this widowed police sergeant. Against the wall in her living-room was an ancestral shine with a large photograph of her deceased husband hanging above it.

5. That was a photograph of Mr Li, the plaintiff in the present case. He is not an actor; he is a life insurance salesman. He never consented to his photograph being displayed in the "Seven Angels", or in any other film.

6. That photograph of Mr Li, representing the deceased husband of the widowed police sergeant, featured in two scenes in the film.

7. In one of them, the adolescent son of the woman police sergeant by her late husband discovers that his mother is reading pornographic books. That prompts the boy to address a request to his dead father's photograph above the shrine. The boy, unaware that his mother intends to use these pornographic books as training manuals for her squad in its undercover assignment, assumes that she has been reading such books because she is sexually frustrated. The boy accuses his late father of acting irresponsibly because he does not return to visit his surviving wife in erotic dreams. The boy tells his late father of his own erotic dreams when he is visited by a glamorous film actress, and asks whether the father might not arrange some equivalent for his lonely wife.

8. In the other scene, Mr Li's photograph stares down from the wall while the woman police sergeant instructs her squad on how to pass themselves off as bar-girls. In general terms, the topic being discussed by the squad in the scene is the possibility of a sexual transaction between a bar-girl and her customer. This prompts the police sergeant widow to make a remark about her own lack of sexual activity for the ten years of her widowhood. As she makes this remark, Mr Li's photograph looms large in the background.

9. Footage showing Fir Li's photograph occupied in total only about twelve seconds of the whole viewing time of the film (Exh. D1)

10. Mr Li is a highly respectable, well-educated man who is now aged thirty-seven. He comes from a good Hong Kong family which sent him to the United States for tertiary education. He graduated in industrial engineering. After working for a while in Canada, he returned to Hong Kong in 1981 and has taken up work here, selling life insurance on commission. He has been employed by the same American life insurance company since 1983, and is so well regarded by his employers that they made him one of their managers a few months ago. By the terms of his employment, he must devote himself full-time to the business of selling life insurance, so that he is not permitted to take any outside employment.

11. The circumstances of how Genesis came to get hold of Mr Li's photograph are as follows.

12. Mr Li is a married man. His wife bore him a son in late 1984. By April 1985, the baby had grown to be chubby and healthy. Genesis were looking for such a baby to feature in one of the scenes in "Seven Angels". Through a Mr Dominic Fung ("Mr Fung"), Mr Li's colleague at work, Mrs Li was introduced to a representative of Genesis. After Mr and Mrs Li talked the matter over together, they agreed to make their baby available to feature in the film. Beyond knowing that the film was to be a comedy, Mr and Mrs Li knew nothing about the plot. They assumed the film would be clean, family-type entertainment. Before taking his baby for filming, Mr Li was told by Genesis through Mr Fung that Genesis would pay $400 as the fee for using the baby.

13. On 9th May 1985, Mr and Mrs Li attended with their baby at the location in Mongkok where Genesis was shooting "Seven Angels". On that occasion, the baby duly performed his role in the film, whereupon Mrs Li was immediately paid the $400 which Genesis had promised, and she signed a receipt (Exhibit P1A, translation P1B) for that amount. No mention was made on that occasion of the possibility of Genesis photographing Mr Li.

14. One does not need to be in the film business to realise that Mr Li is photogenic. He has a striking appearance which makes him well-suited for roles where a heavily-built man is required. People in the film business had remarked on this to him in the past.

15. A day or two after the filming session of Mr Li's baby on the 9th May 1985, Mr Fung passed on a message to Mr Li from a Mr David Wong, the producer employed by Genesis for "Seven Angels". Mr Fung and Mr David Wong are old friends. Mr David Wong wanted to know whether Mr Li would be agreeable to having his photograph taken by Genesis for casting purposes in relation to a future film Genesis was contemplating making as a joint venture with an overseas film company. As the proposition was put to Mr Li, he would be one of five or six competitors for a part in the film, A director from the joint venture partner was due to come to Hong Kong in August 1985 for the purpose of deciding who got the role. Genesis wished to take Mr Li's photograph for showing to that overseas director when he visited. All this was put to Mr Li by Mr Fung, and then confirmed directly to Mr Li by Mr David Wong in telephone conversations. At first, Mr Li was unenthusiastic about the proposal, but after several persuasive telephone calls from Mr David Wong, he agreed.

16. Towards the end of May 1985, Mr Li attended at the studios of Genesis, having made an appointment through Mr David Wong for the purpose of having his photograph taken. Mr Wong Lai Keung, the assistant-director employed by Genesis for "Seven Angels", took five or six photographs of Mr Li. Nothing was said on that occasion or on previous occasions about the possibility of any of those photographs being used in the film "Seven Angels". All along, Genesis, through Mr David Wong and Mr Fung, gave Mr Li to understand that the photographs were being taken solely for the purpose of seeing whether he might be suitable for casting in the joint venture film I have already mentioned. No one from Genesis disabused Mr Li about that prior to taking the photos.

17. August came and went without Mr Li hearing anything from Genesis, so he naturally presumed his photo had not been the one selected for the joint venture Genesis had described to him.

18. I have already related how "Seven Angels" began showing publicly in Hong Kong cinemas at the end of November 1985. In early December, Mr Li suddenly found himself the butt of comments from his friends to the effect that he was famous because his photograph featured in the film "Seven Angels" then showing. Two or three days after first hearing that type of remark, Mr Li went to see the film for himself. To his horror, he saw his photograph featuring in the scenes which I have already described. Mr Li was very angry and highly embarrassed to find himself appearing in such a film without his permission. The audience laughed at the scenes where he appeared, but he was not at all amused.

19. Mr Li did not waste any time in taking steps against Genesis. The day after seeing the film he consulted solicitors who, within a day or two, obtained an ex-parte interim injunction restraining Genesis from showing "Seven Angels". The date of that ex-parte order was 11th December 1985. In inter partes proceedings, that injunction was discharged on the 3rd January 1986, because there were doubts whether Mr Li would be good for his undertaking as to damages if, at trial, it turned out that Genesis had wrongfully been prohibited from showing its film.

20. Because his photograph appeared in that film, Mr Li had to suffer endless teasing and leg-pulling from his colleagues and acquaintances. His family and some of his friends, however, did not think that what had happened was at all funny from Mr Li's point of view. They did not like the idea of Mr Li becoming a laughing-stock. Mr Li did not like the idea either.

21. His own parents and his in-laws were very unhappy at what had happened. In particular, Mr Li's family, being somewhat superstitious, feared that he would bring bad luck to them on account of being portrayed in the film as a dead man. Very regrettably, Mr Li's father died about six months later, and because of the incident in the film, Mr Li's mother reproaches Mr Li for his father's death.

22. Like most ordinary citizens, Mr Li is very concerned with his own dignity and self respect. He now finds himself continuously on the defensive, having to explain to people how it came about that his photograph appeared in that film.

23. Trouble was caused at work for Mr Li on account of the appearance of his photograph in the film. His superiors sought an explanation, and in particular wanted to know whether he had been paid to be photographed, in contravention of his employer's requirement that employees devote themselves full time to their job. Because Mr Li is well regarded by his employers, his explanation of what happened was accepted by his employer. Some of Mr Li's potential clients appear to have reacted adversely on seeing his photograph in the film, but I was not satisfied that he lost any commission by virtue of his photograph appearing in the film. There must be an infinite number of reasons why potential customers decide against going ahead with taking out a life insurance policy with a particular company or salesman. I find it difficult to imagine that the real reason for a potential customer forsaking a particular insurance company would be that a salesman's photograph featured in a film like "Seven Angels". I do not doubt Mr Li's sincerity when he seeks to rationalise the loss of potential customers in this way, but I think he is jumping to a false conclusion. Because he is so sensitive about what has happened, I think he expects the consequences of this incident to be worse than they in fact were.

II.    REASONS FOR FINDINGS OF FACTS

24. My findings of fact stem primarily from the view I took of the credibility of the witnesses. I did a weighing exercise, taking into account the impressions the various witnesses had made on me and also taking account of inherent probability. Thus, in the usual way, I evaluated what the witnesses said, and how they said it. Naturally, too, I also bore in mind that the onus of proof was on the plaintiff.

25. This case was an instance of what is known as "a hard-swearing match", with each side forcefully testifying as to its own version, the court then being left to do its best to decide which version to accept. There was only one piece of independent evidence to assist the court, namely, the receipt for $400 signed by Mrs Li on the 9th of May 1985 after the filming of her baby that day. The receipt (Exhibit P1A, translation Plb) does tend to support the plaintiff's version of events. The relevant part of that receipt states "Received from Genesis Film Limited the sum of HK$400 only for specially contracted actor baby". If, as the defence contend, that sum of $400 was meant to include $300 for filming the baby and $100 for a photograph of Mr Li, one might reasonably expect the receipt to bear words referring both to the baby and to Mr Li, plus words describing how $300 was in respect of the baby and $100 in respect of Mr Li. However, that receipt is by no means conclusive evidence in support of the plaintiff's version; it is merely one item to throw into the scales for the weighing exercise at the end of the case. I certainly did not overlook Mr David Wong's attempted explanation of that receipt on the basis of rather informal record keeping techniques on the part of Genesis.

26. The evidence can be conveniently broken down as relating to three phases. The first phase concerns events prior to the filming on the 9th May 1985. That first phase deals with how Mr Li was brought into contact with Genesis. The second phase is concerned with what happened on the occasion of the filming on the 9th May 1985. The third phase deals with the period between the 9th May 1985 and the time when Mr Li's own photograph was taken by Genesis at the end of May 1985. Mr Li's evidence straddles all three of those phases and so does the evidence of Mr David Wong, whereas other witnesses only purported to testify as to one or two of those phases.

27. Both Mr and Mrs Li gave an account of the first and second phases, namely, the events leading up to the filming session and the actual filming session itself. Each of them made an excellent impression on me. I was satisfied they had been witnesses of truth. There was nothing in the evidence that served to undermine their credibility.

28. Mr David Wong also spoke as to those first two phases. According to him, during the first phase, he had offered Mr and Mrs Li $300 for the use of their baby, and they had accepted that. Then, during the actual filming, Mr Li had gone back on his word, threatening to withdraw the baby unless more money was forthcoming. Thereupon, on Mr David Wong's version, he re-negotiated the arrangement with Mr Li by offering an additional $100 provided that Mr Li also made himself available to be photographed. I felt that I could not accept Mr David Wong's version.

29. Mr David wong's credibility was severely diminished because he was clearly a party to a rather underhand trick played on Mr and Mrs Li. The script of "Seven Angels" had shown all along that the baby required or the film would be pinched until it cried. It is inconceivable that Mr David Wong did not know that. However, he failed to communicate that information to Mr and Mrs Li when negotiating with them for the use of their baby. Obviously, if they had any inkling that their baby might be pinched they would never have agreed to making the baby available. If Mr David Wong was willing to go along with such unethical withholding of information from a baby's parents, I do not regard it as unreasonable to suppose that he would have had few qualms about tricking Mr Li into giving a photograph in the way Mr Li described. I was also singularly unimpressed with Mr David Wong's explanation of why the receipt (Exhibit PlA, translation P1B) made no reference to $100 of the $400 being attributable to a photograph of Mr Li. On Mr David Wong's version, Mr Li was a tricky individual who was not above going back on his word, so he would need tying down by precise particulars in any receipt. However, as I have already indicated, the receipt lacks the particulars one would expect if Mr David Wong's version were correct, and, on the contrary, the receipt supports Mr Li's account of events.

30. Regarding the first phase; Mr rung gave some evidence but his evidence was valueless on the material fact of whether the amount agreed beforehand for the use of the baby was $400 or $300. The overall impression from Mr Fung's evidence in relation to that first phase is that he cannot remember about the money aspect. I will have more to say about Mr Fung's general credibility when I touch upon the third phase in due course.

31. Returning to the second phase, there was the evidence of the director, Mr Michael Mak, to support Mr David Wong's general version of he there was a hitch in the filming on the 9th of May because the parents were threatening to withdraw their baby. There was an obvious discrepancy between Mr David Wong's and Mr Michael Mak's s description of the duration of that hitch, Mr David Wong saying that it lasted for about one minute, whereas Mr Michael Mak said it took from ten to fifteen minutes. That discrepancy as to time did not by itself strike me as having any great significance: even the most honest of witnesses make genuine mistakes on matters such as how long something took, when an incident happened long ago. Mr Michael Mak's credibility suffered the same jolt as that of Mr David Wong: both of them were mixed up in this trick of not letting Mr and Mrs Li know that their baby was going to receive a good pinch.

32. Mr WONG Lai-keung, the assistant-director, was also present during the filming on the 9th May 1985, I did not regard it as significant that he claimed to be unaware of the alleged hitch when Mr and Mrs Lai were supposed to have threatened to withdraw their baby, on the defence version. Mr Wong Lai-keung's ignorance of this could easily have been explained on the basis that he might have been distracted by other work at the material time. In relation to the second phase, I regard Mr Wong Lai-keung's evidence as being neutral in its effect.

33. Regarding the third phase, it was the evidence of Mr David Wong, Mr Wong Lai-keung and Mr Fung for the defence which contradicted Mr Li's evidence in one way or another. According to Mr Li's version, the story of how Genesis wanted Mr Li's photograph for a future joint venture with an overseas company first came through Mr Fung. Mr Fung denies recounting any such story to Mr Li. A court had to decide whose version it should accept as between Mr Li and Mr Fung. In the end, the court, in the light of all the evidence, took the view that Mr Fung had sided with his friend Mr David Wong in telling a version which the court could not find its way to accepting.

34. Mr Wong Lai-keung's evidence, as far as it went, supported the defence version. He claimed to have taken only one photograph of Mr Li rather than the five or six which Mr Li described. I was left wondering whether Mr Wong Lai-keung really could remember photographing Mr Li at all. For an assistant-director, the photographing of an aspiring actor for casting purposes must be a relatively insignificant event, and I was not prepared to accept that he remembered the incident in the way he described. Whether I accepted Mr David Wong's version of what happened in this third phase is obviously very much bound up with my attitude towards his credibility generally. Having rejected his version of what is supposed to have happened in the second phase, it almost inevitably follows that I also rejected his account of the third phase.

35. By way of general comment on the credibility of Mr David Wong, Mr Michael Mak and Mr Wong Lai-keung, I have not overlooked that none of them still works for Genesis, so that none of them could be said to have any immediate incentive to misrepresent the truth for the purpose of preserving his job.

36. Attempting to analyse evidence is a somewhat artificial exercise: the reality is that a court, like a jury, to a large extent works intuitively, and it is very difficult to put into words why the court was impressed more by one set of witnesses than another.

III.    LIABILITY

37. On the view I take, the facts I have found, as set out in Section I above, establish that Genesis is liable to Mr Li on two causes of action, namely breach of confidence and defamation. Although the words ''breach of confidence" were not actually used in the Statement of Claim, the facts pleaded were sufficient to support an action for breach of confidence.

38. Breach of confidence is one of the oldest actions known to the courts. In the words of a 16th century rhyme:

"These three give place in court of conscience, Fraud, accident, and breach of confidence."

See Maitland's Equity (Two Courses of Lectures) Cambridge University Press (1910) p. 7. The three elements necessary to succeed in an action for breach of confidence have conveniently been isolated by Megarry, J. in Coco v. A.H. Clark (Engineers) ⁽¹⁾, as follows:-

"......three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene, M.R. in the Saltman case on page 215, must "have the necessary quality of confidence about it." Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

39. By the "Saltman case", Megarry, J. means Saltman Engineering Co. Ltd. v. Campbell Engineering Co. Ltd. ⁽²⁾.

40. Mr Li's allowing himself to be photographed by Genesis, to my mind, has the necessary quality of confidence about it. Although no one can prevent himself from being photographed as he strolls by in the street (Sports & General Press Agency Ltd. v. "Our Dogs" Publishing Co. Ltd. [1916] 2 K.B. 880, at p. 884, per Horridge J. This decision was approved in the Court of Appeal [1917] 2 K.B. 125.), there is, however, no obligation to make oneself available to be photographed by another. Where a person makes himself accessible to be photographed by another in circumstances where one would expect confidentiality to be respected, a duty of confidence on the part of the person taking the photograph will arise (Pollard v. Photoraphic Company (1888) 40 Ch. D 345).

41. The second element of "an obligation of confidence" is, in my opinion, to be found present in the circumstances in which Mr Li agreed to having his photograph taken by Genesis. At the very most, Mr Li was merely toying with the idea of whether he might be interested in a career in films; he was keeping all his options open without in any way indicating that he wanted to undergo the publicity to which film actors are inevitably expesed. It was only after being pressed by Mr David Wong on behalf of Genesis that Mr Li allowed himself to be persuaded to have his photograph taken for the limited purpose of seeing whether he might be invited to play a part in a new film. The circumstances are a far cry from showing that Mr Li had agreed that Genesis could make him a public figure. The law will protect activities occurring in a confidential situation because it recognizes, "A man may employ himself in private in a manner very harmless, but which, disclosed in society, may destroy the comfort of his life or even his success in it": Prince Albert v. Strange ⁽³⁾, per Knight Bruce V.-C.

42. Still on the second element required by Megarry, J.'s formulation in the Coco case, I am satisfied that any officious bystander would emphatically pronounce that when Genesis took Mr Li's photograph, Genesis knew full well that it was only supposed to use it for casting purposes, and that any attempt to reveal the photograph to a wider audience would be totally at variance with the common understanding at the time Mr Li agreed to be photographed.

43. By incorporating Mr Li's photograph as a prop in "Seven Angels" without Mr Li's authority, Genesis films have caused Mr Li detriment by gravely distressing and embarrassing him, thus satisfying the third element of the Coca test. It would have been different if Mr Li were someone who sought publicity (See Woodward v. Hutchinsin ⁽⁴⁾), but Mr Li had not reached the stage of wanting to forego his privacy at the time he agreed to be photographed.

44. I do not find it necessary to determine whether, besides a breach of confidence, the conduct of Genesis also amounts to a breach of contract. The point is of academic interest only. The same set of circumstances can give rise both to an action for breach of contract and/or for breach of confidence: Prince Albert v. Strange ⁽³⁾; Robb v. Green ⁽⁵⁾; Saltman Engineering Co. Ltd. v. Campbell Engineering Co. Ltd. ⁽²⁾; Nichrotherm Electrical Co. Ltd. v. Perry ⁽⁶⁾ and Ackroyds (London) Ltd. v. Islington Plastics Ltd. ⁽⁷⁾. The theoretical basis in law is unimportant. As pointed out by Ungoed-Thomas J. in Argyll v. Argyll ⁽⁸⁾, it is simply a matter of the law's policy to ensure that confidences are respected, and the law's attitude is undoubtedly correctly stated in the Irish case of House of Spring Gardens v. Point Blank ⁽⁹⁾.

"The court, it should be borne in mind, is being asked to enforce what is essentially a moral obligation."

45. On the facts I found, an obligation of confidence arose on the part of Genesis to use its photographs of Mr Li for the limited purpose of casting, but Genesis was in breach of that obligation when it showed that photograph in "Seven Angels". The effect of that breach will be considered under remedies.

46. It was common ground that, if showing Mr Li's photograph in "Seven Angels" was defamatory of him, then the defamation was by way of libel because a film is in a permanent form. Where libel is established, the damages are at large.

47. Sometimes, material published of a person will expose him to light-hearted barter without the stage being reached where defamation becomes present. For example, to publish a story in today's newspaper that a man married yesterday when, in fact, the wedding is not to take place until tomorrow has been held not to be defamatory because no right-thinking person will think any be worse of him : Emerson v. Grimsby Times ⁽¹⁰⁾. On the other hand, if published material exposes a person to ridicule of sufficient magnitude then defamation can occur.

48. Where exposure to innocent banter ends and ridicule of a type giving rise to defamation begins is a question of degree and depends on context and circumstances. Circumstances where the claimant was found to have been made to look so ridiculous as to have a cause of action in libel are the following: a dental advertisement in a theatre showing a picture of a good-looking young actress as if she had no teeth, Funston v. Pearson ⁽¹¹⁾; a photograph in a national newspaper of a policeman wiping his brow on a hot day, with a caption implying that his feet would smell so badly at the end of the day that they would need to be soaked in the defendant's disinfectant, Plumb v. Jeyes Sanitary Compounds Co. Ltd. ⁽¹²⁾ ; an advertisement showing the face of the claimant, who did not seek publicity, mounted upon the body of a very tall man dressed in a foppish manner, wearing a tall white hat, a white waistcoat and carrying a cane and eye-glass, Dunlop Rubber Company Limited v Dunlop ⁽¹³⁾. Such pictures, exposing a person to ridicule can constitute libel: Parmiter v. Coupland ⁽¹⁴⁾.

49. Much depends on the circumstance of whose picture is shown. A person who courts publicity might have no cause of complaint where an ordinary citizen will. As was said in the direction to the jury in Monckton v. Ralph Dunn ⁽¹⁵⁾ :

"It might well be that if you were to take a person who wished to live retired from the world and published a photo of her in fancy costume it might be libellous. Supposing, for instance, you were to publish the picture of a vicar's wife as La Source. She would have reason to be annoyed. But that was not quite the same as publishing a picture of a lady who had often been photographed in fancy costumes, in another fancy costume."

50. Whether the constellation of circumstances amounts to libel or not will depend on the view a right-thinking person would take of them. In the present case, I am satisfied that, bearing in mind the nature of the film and the scenes in which Mr Li's photograph was shown, he was exposed to ridicule of such a nature as to amount to defamation.

51. A word needs to be said about consent in the context of defamation. If it could be said that Mr Li had consented, expressly or impliedly, to his photograph being shown in "Seven Angels", he would have no complaint in libel. I am satisfied that he gave no consent, either express or implied, to having his photo shown in any film; his consent was limited to his photo being shown to a film director for casting purposes. Mr Li's position is not so different from that of the claimant in the New Zealand case of Kirk v. Reed ⁽¹⁶⁾. There, a citizen of a small town in New Zealand did not mind being photographed in an unflattering pose, carrying a flagon of beer and a bottle of wine, on the understanding that the photographer was no more than a tourist passing through the town who wanted an amusing shot. When the photgraph appeared in a magazine with a caption Typical New Zealander on the booze", the person photographed was held entitled to bring proceedings in defamation because the common understanding was the photograph was for private purposes only. Thus, as in the case before me, a limited consent is different from a general consent in the context of whether material is defamatory.

52. For reasons which eluded me, Mr Li's counsel seemed to think that showing his client's photograph in "Seven Angels", particularly as a dead man, somehow would reflect on his client's honesty. He even relied on a plea to the effect that it prostituted the reputation of an insurance salesman and showed him as unworthy of such a status if he allowed his photograph to be used in exchange for payment in such a film. The plea followed the same form as the one in Tolley v. J.S. Fry & Sons Ltd. ⁽¹⁷⁾ where a celebrated amateur golfer was held to be libelled by an advertisement which showed him carrying a bar of Fry's chocolate because the advertisement impliedly called in question his status as an amateur. I think that counsel's attempt to rely on such a plea was totally misconceived in the present case, which does not even begin to attract the operation of the Tolley v. Fry principle. As pleaded, no innuendo was made out. Even with amendments, I do not consider there would be any scope for saying that showing a photograph of a life insurance salesman as a dead husband in a ribald comedy gives rise to any imputation detrimental to his trade or business.

IV REMEDIES

(a)    Damages

53. Whether on the basis of breach of confidence (Seager v. Copydex (No. 2) [1969] R.P.C. 250) or libel, Mr Li is entitled to compensation for the injury to his proper feelings of dignity and pride. In this area of the law, it behoves a judge to remember that "The figure of justice carries a pair of scales, not a cornucopia" per Greenberg J. in Innes v. Visser ⁽¹⁸⁾ cited in Hsiang-Hsi Kung (No. 2) v. Sing Tao Jih Pao Ltd. ⁽¹⁹⁾. The courts in Hong Kong - rightly, in my view, - have not gone overboard with their awards of damages in defamation cases. An article by Mr Peter Rhbodes entitled "Damages for Defamation in Hong Kong" in 1981 H.K.L.J. 166 gives a good overview of the tariff. The highest award of damages ever for libel in Hong Kong, as far as I am aware, was $180,000 in the year 1981 for dreadful accusations in two newspaper articles alleging that a gynaecologist was to blame for the deaths of two babies and injuries to two others. That was the case of Sim Hok-gwan v. Tin Tin Yat Po Ltd.⁽²⁰⁾. On that scale of values, even allowing for inflation, I do not think that the injury to Mr Li is worth more than $25,000. Damages for injured dignity and pride are inevitably conventional in nature: there is no real correlation between injured feelings and dollars and cents. That figure of $25,000 takes into account the aggravating factor that "Seven Angels" was shown at many cinemas throughout Hong Kong, and that Genesis made sure it could go on repeating the libel by getting the interim injunction lifted. As libels and breaches of confidence go, the present case is near the bottom end of the range or seriousness. My figure of $25,000 already includes aggravating damages and on the view I take, the total of $25,000 includes a sufficient punitive element to make it unnecessary to award exemplary damages. (On exemplary damages and their relationship to aggravated damages in libel, see Broome v. Cassell & Co. Ltd. [1972] A.C. 1027 and Riches v. News Group Newspapers Ltd. [1985] 2 All E.R. 345) I could apportion part of that $25,000 to ordinary damages, and the balance to exemplary damages, but I would regard such an approach as unnecessarily artificial. I regard it as more sensible to adopt a "totality" approach, and award a global figure for the overall damages. In the context of exemplary damages, there was no suggestion that it was any special advantage to Genesis to have Mr Li's photograph rather than the photograph of anyone else appear as a prop in "Seven Angels". I do not suppose for one moment they would have made any less money from the film if they had simply cut out the parts where Mr Li's photograph appeared. The court would not like to see Genesis' profit from having wrongfully used Mr Li's photograph but I do not think it can be realistically claimed that any profit accruing to Gencsis from this film will be in any way attributable to its insistence on showing Mr Li's photograph.

(b)    Injunction

54. If Genesis wishes to show "Seven Angels" in future, it will have to cut out the parts showing Mr Li's photograph. There is no reason why the film as a whole should be enjoined: an injunction will therefore issue to the effect that Genesis is forbidden to show the parts of "Seven Angels" with Mr Li's photograph. To make ray order effective, I further direct that Genesis must destroy the parts showing Mr Li on all copies of "Seven Angels". Genesis is also forbidden to use any of the photographs which Mr Wong Lai Keung took of Mr Li at or about the end of May 1985 in the studios of Genesis.

(1)    [1969] R.P.C. 41 at 47

(2)    [1948] 65 R.P.C. 203

(3)    (1849) 2 De Gex & Sm. 652; 697; 64 ER 293, 312

(2)    [1948] 65 R.P.C. 203

(3)    (1849) 2 De Gex & Sm. 652, 697; 64 ER 293, 312

(4)    [1977] 1 W.L.R. 760

(5)    [1895] 2 Q.B. 315

(6)    [1957] R.P.C. 207

(7)    [1962] R.P.C. 97

(8)    [1967] 1 Ch. 302

(9)    [1983] F.S.R. 213, 253

(10)    (1926) 42 T.L.R. 238, C.A.

(11)    The Times, 12th March 1915

(12)    The Times, 15th April 1937

(13)    [1921] A.C. 347

(14)    (1840) 6 M. & W. 105

(15)    The Times, 30th January 1907

(16)    [1968] N.Z.L.R. 801

(17)    [1931] A.C. 333

(18)    [1936] W.L.D. 44

(19)    [1959] H.K.L.R. 65, 90

(20)   H.C. Action No. 287/79