DR PAUL KI PING KI v. NEXT MAGAZINE PUBLISHING LTD AND OTHERS

HCA 4173/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4173 OF 2001

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R U L I N G

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1. This is a libel action, which is being tried before me with a jury. Although originally five Defendants were sued, the claims against the 2nd and 4th Defendants have since been struck out.

2. On 14 January 2004 - the third day of the trial, the Plaintiff, acting in person, formally closed his case. At the close of the Plaintiff's case, Mr Jat SC, appearing for the 1st, 3rd and 5th Defendants, made a submission to the Court, asking the Court to dismiss the Plaintiff's action on the ground that there is no case to go to the jury.

3. The Plaintiff's claim concerns an article written by the 5th Defendant. It was published in a magazine, the publisher of which was the 1st Defendant. The 3rd Defendant was the editor-in-chief of the magazine at the material time.

4. According to the Plaintiff's pleaded case and the evidence he has given at trial, the Plaintiff was the registered sole proprietor of a business known as Hong Kong Washington Company. In 1995, the Plaintiff placed an advertisement in a newspaper marketing the sale of one-square-inch plots of land to be partitioned from a piece of land in the State of Iowa, the United States, that was co-owned by him and a private university or college founded by him. The selling price was HK$100 per plot of land of one square inch in area. The sale was, according to the advertisement, in commemoration of the visits by extra-terrestrial beings to the United States. The advertisement asked intending purchasers to send cheques issued in favour of Hong Kong Washington Company to an address in an industrial building in Tuen Mun.

5. The article written by the 5th Defendant alleged that the address set out in the advertisement bore a nameplate belonging to another company. Moreover, the entrance was locked all the time. The article also said that according to the responsible person (負責人) of Hong Kong Washington Company, the "old company" (舊公司) - apparently a reference to the company the name of which still appeared in the nameplate in the industrial building in question, had already moved out from the address, but the nameplate had not yet been removed. The person responsible also said, according to the article, that as Hong Kong Washington Company did not have much to do, the person responsible would only return to the address occasionally to collect faxes.

6. Of significance is that the article never named the Plaintiff personally. Nor did it identify the so-called person responsible as the Plaintiff personally. The article did not say who owned Hong Kong Washington Company, or put another way, who was/were the sole proprietor, or as the case may be, the partners of Hong Kong Washington Company.

7. As I said, at the trial, the Plaintiff gave evidence in support of his claim. He called no other witnesses. Apart from his oral evidence, there was also documentary evidence that was by agreement placed before the Court and the jury. Further documents were formally produced as exhibits during the course of the Plaintiff's testimony. As I said, the sum total of the evidence adduced by the Plaintiff was that he was the registered sole proprietor of Hong Kong Washington Company. Put another way, Hong Kong Washington Company was a trading or business name or style under which he carried on business.

8. Mr Jat made two points in his submission of no case. First, he argued that the article and the words complained of were not published "of and concerning" the Plaintiff personally. Secondly, he argued that the words complained of are incapable of bearing the defamatory meanings for which the Plaintiff contends or any less injurious meanings within the same class or range as the pleaded meanings.

9. I will deal with the two points in turn shortly. But I should first mention the grievance expressed by the Plaintiff regarding the fact that the submission of no case was made at the middle of this jury trial. He complained that the Defendants should have applied to strike out his claim earlier so that the matter could be decided prior to the commencement of the present trial. As they did not do so, the whole matter now raised by the Defendants in the present submission should be left to the jury for decision. The Plaintiff said it was wrong for the Defendants to ask the Court to decide whether to throw out his claim in the absence of the jury. I would only repeat here what I have sought to explain to the Plaintiff earlier, namely, that the making of a submission of no case is a perfectly normal procedure in a libel trial by jury: see Gatley on Libel and Slander (10th ed.) paras 33.1 to 33.2; Hong Kong Civil Procedure 2004 Vol. 1 para. 35/7/2. I see nothing in the Plaintiff's complaint.

10. Turing to the question of publication of the Plaintiff personally, in an action on libel, it is essential for the plaintiff to establish by evidence that the words complained of were published "of [and concerning] the plaintiff": see Gatley para. 7.1; Knupffer v. London Express Newspaper Limited [1944] AC 116, 118 to 119.

11. If the plaintiff is named in the article, this requirement would pose no problem to him. However, if the article complained of does not refer to the plaintiff by name, which is the situation in the present case, the plaintiff must establish by evidence at trial that the article was published of and concerning him. If, for instance, the article refers to the holder of a public office, and the identity of the holder of that office is notorious to the public, there is no need to produce evidence at trial to prove that the article was published of the plaintiff, i.e. the holder of the public office in question. Similarly, if an article refers to the chairman of a company or business, the identity of which is well known in the society, there is no need for the plaintiff (i.e. the chairman) to adduce evidence at trial to prove that people on the street know that he is indeed the chairman of the business in question.

12. At the other extreme, the plaintiff may only be identifiable by reason of extraneous facts which are not generally known, in which case there is no actionable publication unless it is shown that the words were communicated to persons with such knowledge. See Gatley at para. 7.3 (p. 185), which reads:

"Where the claimant is referred to in an indirect way or by implication it will be a question of degree how far evidence will be required to connect the libel with him. At one extreme, if there is a libel on "the Prime Minister" that officer does not need to produce witnesses to testify that they know who he is. At the other extreme, the claimant may only be identifiable by reason of extraneous facts which are not generally known, in which case there is no actionable publication unless it is shown that the words were communicated to persons with such knowledge. Even in the latter type of case, however, it is not enough that the recipients of the statement did understand it to refer to the claimant: the issue is whether reasonable people with their knowledge would so understand it."

13. In the present case, I am not dealing with the former case where the identity of the plaintiff is a matter well known to the public. I am concerned with the sole proprietor of Hong Kong Washington Company. Extraneous facts, which are not generally known, are required in order to link or connect the Plaintiff personally with the words used, or more precisely, the Plaintiff personally with Hong Kong Washington Company or its person responsible. It is true that the business registration records of Hong Kong Washington Company are open to public search. But in the present context, I do not regard that fact alone as meaning that the identity of the sole proprietor of Hong Kong Washington Company is, as a matter of fact, known to the general public. An ability to search and find out the identity of the sole proprietor, in the present context, is not equivalent to knowledge of the identity.

14. Although Gatley at para. 26.25 sets out the pleading requirements applicable to a plaintiff who seeks to rely on extraneous connecting facts to establish the link between himself and the words used, which requirements the Plaintiff has failed to follow in his pleading, I am not here only concerned with a pleading point. If only a pleading objection had been involved in counsel's submission, the Court might well have found it appropriate to consider, based on well-established principles, exercising its discretion relating to the amendment of pleadings. However, a more fundamental and fatal objection is involved here.

15. Whilst I am on the pleadings, I might as well add that the present objection raised by counsel is not a new one. Right from the very beginning, the Defendants have pleaded in their defence that the article did not refer to or identify the Plaintiff personally, and that the article was and is not defamatory "of the Plaintiff": see paragraphs 9 and 10 of the defence.

16. In this trial, we have already reached the stage where the Plaintiff has adduced all the evidence he wished to adduce before the Court (and the jury) to prove his case on libel. He has closed his case. Counsel's submission is that in the evidence that has been so adduced, there is nothing whatsoever to prove that someone who had the special knowledge that the Plaintiff was the sole proprietor (or person responsible) of Hong Kong Washington Company has read the offending article or words. Put another way, the Plaintiff has not called even one witness to say that he knew that the Plaintiff was the sole proprietor or responsible person of Hong Kong Washington Company and he has read the offending article in question. Moreover, there has not been adduced by the Plaintiff any evidence which would enable this Court to infer or conclude that someone, other than the Plaintiff himself, having the requisite knowledge of the relationship between the Plaintiff and Hong Kong Washington Company, has read the article.

17. I agree. In the evidence that has been adduced, there is no evidence that someone, other than the Plaintiff himself, who knew that the Plaintiff was the sole proprietor or responsible person of Hong Kong Washington Company has read the article. The Plaintiff did not refer to any such person in his evidence. No such conclusion or inference, direct or indirect, could be drawn from the documentary or circumstantial evidence either. As I have said before, there are only the business registration records of Hong Kong Washington Company. There is no evidence that someone who may have been privy to the contents of such records has read the offending article.

18. There were some references in the Plaintiff's evidence to there having been two other articles written elsewhere regarding the advertisement that he had placed. But there was no evidence that the authors of these other articles (or the persons connected with the writing or publication of these other articles), or the readers of these other articles, had also read the present offending article, or that if such a person did exist, that the other two articles would have thrown light on the true identity of the sole proprietor of Hong Kong Washington Company or the responsible person thereof. No such conclusion or inference, in my judgment, could be drawn.

19. In Kruse v. Lindner (1978) 19 ALR 85, a case of the Australian Federal Court of Appeal, the plaintiff carried on the business of selling car radios and associated equipment by retail under the name of "Polymedia Car Stereo". The defendant caused to be published in a newspaper an advertisement in the following terms:

"Warning to the Public! Shop around before you buy at Polymedia Car Stereo, 57 Wollongong Street, Fyshwick."

At the libel trial, evidence called by the plaintiff established that at all material times he was the sole proprietor and also the registered proprietor of a business carried on at 57 Wollongong Street, Fyshwick under the business name of "Polymedia Car Stereo" and that the nature of the business so carried on was that of a retailer of car radios and associated equipment. However, in the course of the hearing, no evidence was called which showed or tended to show that any person or persons who had seen the advertisement believed or understood that the plaintiff was the person who owned the business or the person responsible for the manner in which the business was conducted. The plaintiff's claim was dismissed. On appeal, the Court of Appeal affirmed the decision below. Smithers J said (at pages 86-89):

" It is of the essence of the tort of defamation that the person defamed be able to show that his reputation has suffered by reason of the publication complained of. Unless the publication points to some person as the person against whose reputation the aspersion in the publication is made with such particularity that a reader without additional knowledge, or with additional knowledge, can and does identity some particular person as the person whose reputation is the subject of the aspersion, then nobody is defamed.

...

In this case, if it had been shown that some person or persons knowing the plaintiff also knew that he was the proprietor of Polymedia Car Stereo then it might be said that the advertisement, although not referring to the appellant by name, was such as reasonably in the circumstances would lead that person or those persons to believe that the appellant was the person referred to in the advertisement and in respect of whom the warning was issued.

...

No person who knew the appellant gave evidence and accordingly it was never shown that any person knew that the appellant was the proprietor of Polymedia Car Stereo. As a result there was no evidence that the appellant was the person against whom the warning in the advertisement was issued and accordingly no evidence of actual disparagement of the appellant.

...

Indeed, as Mr Kelly [counsel for the plaintiff] conceded, the opinion of the Full Court of New South Wales (Jordan CJ, Davidson and Street JJ) in Consolidated Trust Co Ltd v Browne, supra, is clearly against him and contains the following passage: "If the matter complained of does not refer by name to the person alleged to be defamed ... and the identity of the person defamed could be apparent only to persons who had knowledge of special circumstances it is necessary, in order to prove publication, to prove that it was published to a person or persons who had knowledge of the circumstances" (1949) 49 SR (NSW) at 89, per Jordan CJ).

Accordingly, it is my view that on the evidence before the learned Judge no fault is to be found in his reasons for judgment."

20. Nimmo J said (at page 97) as follows:

" Before this court counsel for the appellant challenged the correctness of his Honour's judgment on two grounds.

First, he contended, all that was necessary for the appellant to show in order to prove that the advertisement referred to him was that he was identical with the person who operated the business of Polymedia Car Stereo. That, he said, the appellant had done by his own evidence. I am unable to accept this contention which I consider goes beyond what was decided in Godhad v James Inglis & Co Ltd (1904) 2 CLR 78, and the other authorities cited by counsel, and cuts right across the principle that a plaintiff in an action of this kind must prove that the words complained of expressly refer, or be understood by reasonable people to refer to him. The words in the advertisement do not expressly refer to the appellant and no witness or witnesses were called to testify that when they read them they understood them to refer to him. It is one thing to prove that words complained of are capable of referring to a particular person and another thing to prove that they in fact do refer or are understood by reasonable people to refer to that person."

21. Connor J said (at pages 99-100) as follows:

" This appeal is concerned with two matters. The first is whether in a defamation action, as distinct from an action for injurious falsehood, the plaintiff could show that the advertisement referred to him simply by proving his proprietorship of Polymedia Car Stereo. The second is whether the appeal should succeed because of the rejection by the learned trial judge of certain evidence.

As to the first point I think it is established law that if the matter complained of as defamatory does not refer to the plaintiff by name and the identity of the person defamed would be apparent only to persons who had knowledge of special circumstances, it is necessary to prove that it was published to a person or persons who had knowledge of those circumstances - Consolidated Trust Co Ltd v Browne (1949) 49 SR (NSW) 86, a decision of the Full Court of the Supreme Court of New South Wales - see in particular per Jordan CJ at 89 and per Davidson J at 92-3. This decision was followed by another decision of the Full Court of the Supreme Court of New South Wales in Cross v Denley [1952] SR (NSW) 112: see per Owen J at 115-6. In the latter case the plaintiff was shown to be the proprietor of a business which was carried on under a particular style or business name which did not include his own name. The allegedly defamatory material referred to a business with a name very similar to the name of the business conducted by the plaintiff but the material did not mention the plaintiff by name. There was no evidence that anyone to whom the material was published had any special knowledge enabling him to connect the material with the Plaintiff. Consequently the plaintiff in that case failed. I am therefore of the view that the learned trial judge in the present case was correct in holding that, unless there was evidence which satisfied him that some person understood the words as referring to the appellant, the action would have to be dismissed."

22. Similar views were expressed by the Australian courts in Consolidated Trust Co. Ltd v. Browne (1949) 49 SR (NSW) 86; Cross v. Denley [1952] 52 SR (NSW) 112; and Channel Seven Sydney Pty Ltd v. Parras [2002] NSWCA 202. See also the English case of Sadgrove v. Hole [1901] 2 KB 1.

23. In my view, the facts of the present case are indistinguishable from that in Kruse. Although the above cases are Australian cases, I am more than satisfied that the common law principles set out and applied in those cases represent principles of common law that are applicable in this jurisdiction.

24. For all these reasons, I am with counsel on his first point, notwithstanding the high threshold that a submission of no case has to overcome. In other words, I conclude that the Plaintiff has adduced no evidence to prove that the words complained of were published of and concerning him. In those circumstances, his claim must fail.

25. Given the above conclusion, I need not dwell on the second point raised by counsel, namely, that the words complained of are not capable of bearing the pleaded meanings, or any less injurious meanings within the same class or range as the pleaded meanings. Suffice to say that if this had been the only ground relied on in the Defendants' submission of no case, I would have very much inclined to leave the matter to the jury for decision, particularly given counsel's concession that if the words complained of are capable of bearing a less injurious meaning within the same class or range as the pleaded meaning, there would be a case to go to the jury. However, this was not the only point made by counsel in support of his submission.

26. For the reasons given above, the Plaintiff's claim against the 1st, 3rd and 5th Defendants must fail. The jury will be directed to return a verdict of "Not liable" accordingly.