ORIENTAL DAILY PUBLISHER LTD AND ANOTHER v. MING PAO HOLDINGS LTD AND OTHERS

CACV 139/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 139 OF 2010

(ON APPEAL FROM HCA NO. 607 OF 2008)

____________

BETWEEN

____________

_______________

JUDGMENT

_______________

Hon Tang Ag CJHC:

1.  This is the Defendants’ appeal against the judgment of Chung J given on 28 May 2010.

2.  The 1^st Plaintiff is the publisher of the Oriental Daily News（東方日報）, a newspaper with wide circulation in Hong Kong.  The 2^nd Plaintiff is the honorary chairman of Oriental Press Group Limited, a listed company.

3.  The 1^st, 2^nd and 3^rd Defendants are, respectively, the proprietor, the publisher, and the chief editor of Ming Pao, a newspaper with a smaller circulation.  I believe it is not disputed that the two newspapers target different readership. 

4.  This appeal concerns an article which was published at page A13 in the Hong Kong news section in the 10 April 2008 issue of Ming Pao (“the article”).  The article is reproduced as Annex I to this judgment.

5.  The bulk of the article is occupied by a photograph of Ma（馬照聲）displaying a banner taken outside the High Court (“the offending banner”).  Underneath the photograph are a caption, a heading and a short article written by Ming Pao.

6.  The Plaintiffs considered the article to be defamatory and their complaint was in four parts.  They relate to the photograph, the photograph’s caption, the article heading and the body of the text.  According to the learned judge:

“12. The statement of claim avers that the following passages are words defamatory of the plaintiffs:-

(a) the following parts of the banner which appear in the photograph:-

(1) ‘香港是否仍有法治？冤獄！賄賂！買兇！’;

(2) ‘… 豈料東方日報馬澄坤等馬氏家族並無將有關之投訴合法處理…然彼等不單無以此途徑處理，竟公然揑做一封勒索伍佰萬之勒索信，誣陷本人，再由高級督察游乃強假扮東方日報主席助理，致電本人 …’;

(3) ‘…豈料游乃強竟被人收買，假稱雙方對話並無錄音，再揑做假証供指本人刑事恐嚇…’;

(b) the part of the caption which reads: ‘「香港拉登」馬照聲 … 指早前被人插贓嫁禍含冤入獄。’;

(c) the heading reads: ‘香港拉登高院外控訴遭插贓’;

(d) the part of the text which reads: ‘馬照聲 … 指刑事恐嚇案件是被人插贓嫁禍。’

It is undisputed the suit article concerns the demonstration by a man named ‘Ma Chiu Sing’ (‘Ma’), and he was the male depicted in the photograph. The background of Ma will be set out in more detail below.

13. There is a passage in the text of the suit article concerning Ma being injured when he was assaulted by clubs outside the prison immediately upon his release.  There is another passage about Ma stating he wanted to see if anyone would dare to ignore the law and assault him at the front door of the High Court.  These passages are however not relied upon as words defamatory of the plaintiffs.”

7.  Ma is a notorious criminal.  On 28 September 2001, shortly after the terrorist attack of 11 September in the United States, Ma threatened the people of Hong Kong with acts of poisoning by letter or fax sent to popular newspapers in Hong Kong including the Oriental Daily News.  He signed off those messages calling himself “HK Bin Laden”.  In his messages he called on the then Chief Executive and other senior government officials to resign failing which he threatened that he “will wait for the suitable location, the proper time and the right opportunity before I do the poisoning.  One person, ten persons, or one hundred persons may be killed next time”.  He had actually put poison in some cup foods at a supermarket in Lai Chi Kok, as well as contaminating a bottle of chocolate powder at a supermarket in Central.  HKSAR v Ma Chiu Sing [2004] 3 HKC 384 at 387. 

8.  Ma was convicted in 2002 and sentenced to imprisonment for a total of 6 years and 8 months.  His case attracted further publicity in August 2004, when as a result of his appeal, his sentence was maintained although for technical reasons two of the five charges, to which he had pleaded guilty, were quashed.

9.  Ma was released from prison in June 2006.  However, he was convicted in June 2007 in the magistracy of two counts of criminal intimidation which arose from threats he made in a letter to the Oriental Daily News as well as his telephone conversation with an Inspector Yau (who had pretended to be the personal assistant to the 2^nd Plaintiff).  Ma was sentenced to 9 months’ imprisonment and released on 15 March 2008.

10.  After his release from prison, and starting from 9 April 2008, Ma had displayed the offending banner outside the Legislative Council building and the High Court building.  An ex parte injunction was obtained against Ma on 11 April 2008, restraining him from, inter alia, publishing the words contained in the offending banner or any similar words defamatory of the Plaintiffs. In committal proceedings for Ma’s breaches of the injunctions, he was sentenced to imprisonment for 42 weeks.  However, on appeal, he was ordered to be released after he had spent over 5 months in custody. 

The Trial

11.  The Defendants denied that the words were defamatory.  In their defence they had pleaded the defence of qualified privilege, or what is known as a defence of responsible journalism or reportage.  As explained by Lord Nicholls in Bonnick v Morris and Ors [2003] 1 AC 300, para. 23:

“… Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals.”

12.  Mr McCoy SC, who appeared for the Plaintiffs, both here and below, submitted this case might have provided an opportunity to explore the applicability and limit of this developing jurisprudence.  However, the defence of responsible journalism or reportage was expressly abandoned at trial.  Mr Anderson Chow SC, who did not appear below, but who appeared for the Defendants on appeal, accepted that the defence having been abandoned, the Defendants could not rely on them on appeal. 

The Appeal

Not defamatory

13.  Mr Chow’s principal submission was that the article was not defamatory. 

14.  He submitted, correctly, that where a person repeats a defamatory statement made by another person, generally the person is liable as if he is the author of the statement.  See Gatley on Libel and Slander, 11^th Ed., para. 11.4.  This is known as the “repetition rule”.  In Stern v Piper and Ors [1997] QB 123 at 135-136, Simon Brown LJ (as he then was) explained the repetition rule in these words:

“The repetition rule … is a rule of law specifically designed to prevent a jury from deciding that a particular class of publication -- a publication which conveys rumour, hearsay, allegation, repetition, call it what one will -- is true or alternatively bears a lesser defamatory meaning than would attach to the original allegation itself. By definition, but for the rule, those findings would otherwise be open to the jury on the facts; why else the need for a rule of law in the first place?”

15.  The repetition rule applies to a newspaper.  However, as explained, in a suitable case, a newspaper might be able to avail itself of the defence of responsible journalism or reportage.

16.  Mr Chow further submitted, again correctly in my view, that the repetition rule is subject to the general principle that the entire statement must be considered as a whole and in its proper context, in order to determine whether it bears the defamatory meaning alleged by the complainant.

17.  Again Simon Brown LJ explained in Mark v Associated Newspapers Ltd [2002] EMLR 38 / 839:

“37 The correct approach is not in doubt. If the defamatory sting of an article is wholly removed by surrounding words then, to use Baron Alderson’s famous phrase in Chalmers v. Payne (1835) 2 CM & R 156 at 159: ‘The bane and the antidote must be taken together.’ Nor could it be doubted that the principle applies to repetition cases - see again, Stern v. Piper. As Hutley JA observed in Sergi v. Australian Broadcasting Commission [1983] 2 NSWLR 669 at 670: ‘the bane and antidote theory … is merely a vivid way of stating that the whole publication must be considered, not a segment of it’. One asks, therefore, in this as in any other case where the principle is invoked, whether, considered as a whole, the publication is damaging to the claimant’s reputation. That, at least, is the question ultimately to be asked. …”

18.  Here, the article does not contain a refutation of Ma’s allegations.  Indeed,

“42 What view, then, is likely to be taken of a neutral report which sets out both an allegation and its denial? For my part I find it very difficult to conceive of circumstances in which the mere printing of a denial could of itself be said to constitute an antidote sufficient to neutralise the bane, …” Simon Brown LJ in Mark.

19.  Be that as it may, Mr Chow submitted that given Ma’s notoriety, the nature of the allegations and his nickname “HK Bin Laden”, no reasonable reader would believe his allegations.

20.  With respect, I cannot agree.  Given Ma’s notoriety and criminal record, the nature of his allegations (which included an allegation that a senior inspector of police was party to a plot to frame him), and the fact that Ma had been convicted by a magistrate, I am prepared to accept that very few people would believe the allegations.  But I cannot go so far as to say that the article was so incredible that no reasonable reader could believe it. 

21.  Mr McCoy submitted that it is only if we could conclude that no reasonable reader of the article could possibly believe Ma’s allegations we could find that the article is not defamatory.  I agree.

22.  Mr Chow submitted that Ming Pao had not adopted the truth of any of Ma’s accusations.  He submitted that the article, read as a whole, could not be understood by any reasonable reader as making, repeating, circulating or giving currency to Ma’s allegations. 

23.  But adoption of the truth of the allegation is not essential to liability under the repetition rule, as the following citation shows:

“The fact that the defendant expressed a doubt or disbelief as to the truth of defamatory assertions which he repeats will not relieve him of liability. … It is not therefore necessary that the defendant should have adopted the statement”: Gatley, para. 6.35 citing (at footnote 272), inter alia, Stern v Piper, Curistan v Times Newspapers Ltd [2009] QB 231, Wake v John Fairfax [1973] 1 NSWLR 43 and Yoon Shin Lee v Bob Chae–Sang Cha [2005] NSWCA 279.

24.  Mr Chow relied on Robertson v Newsquest (Sunday Herald) Ltd, 2006 SCLR 792; 2006 Rep LR 124, a decision of the Scottish Outer House.  Robertson was concerned with an article published in the Sunday Herald which contained a photograph of the masthead of the Scottish Daily Mail together with a small reproduction of an earlier article from that newspaper.  One of the complaints of the plaintiff against the Sunday Herald related to a false allegation contained in the Scottish Daily Mail article reproduced in the Sunday Herald, and the plaintiff relied upon the repetition rule in support of his complaint.

25.  But, Robertson does not help Mr Chow.  As Mr Chow acknowledged the facts are different.  There, Lord Reed, after a survey of the authorities, including Stern v Piper and Mark v Associated Newspapers Ltd, concluded at [28]:

“The whole tenor of the article is that the allegation against the pursuer was untrue; and the article cannot reasonably be understood as adopting or repeating that allegation.”

26.   Mr Chow also relied on Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202.  There, Channel 7 broadcasted a promotion for a television programme known as “Today Tonight” in which it was asserted that the plaintiff was a suspect in a murder case.  Proceedings were brought to obtain an injunction restraining broadcast of the programme.  ABC reported on those proceedings, including a reference to the plaintiff having been a murder suspect. Sands also does not help the Defendants.  It turned on its own facts, as the following passages from the judgment of Gray J (with the concurrence of the other members of the court) made clear:

“116. … However, the repetition rule does not operate so rigidly as to require a finding that a party repeating a defamatory statement is necessarily liable in the same way as the maker of the primary statement. Whether or not the repetition carries the same defamatory imputation will depend upon the context of the proceeding.

117. … The report was of an allegation made in inter partes court proceedings.  It was clear that the report was merely a report of the Judge’s paraphrasing of allegations made by one side to the dispute and the reporter did not adopt those allegations as his own.”

27.  We have been referred to Keramianakis v Regional Publishers Pty Ltd [2007] NSWCA 375.  There, Basten JA explained the two senses in which the concept of adoption might be used.  The primary sense connotes strict liability for the publication of defamatory hearsay.  The secondary sense:

“100. … being one of the matters relevant to determining what, if any, defamatory imputations were conveyed by a publication which includes defamatory hearsay. Thus, in Wake, as I have earlier noted while reaffirming the proposition that the publisher of defamatory hearsay is not in a special position if the imputation is ‘not adopted’, the Court said that the nature of the libel conveyed by the reporting of defamatory hearsay may depend (inter alia) upon ‘whether it is adopted, repudiated or discounted’.”

28.  With respect, this is a helpful exposition of what is encapsulated in the graphic phrase “bane and antidote”, but does not advance the Defendants’ case.

29.  In my view Mr Chow’s primary case that the words in the article could not have been understood in a defamatory sense or were not defamatory has not been made out. 

1^st Plaintiff not identified

30.  Mr Chow also submitted that although the 2^nd Plaintiff was named, there was no identification of the 1^st Plaintiff in the article.  Although this point had been pleaded, it was not pursued at trial. With respect, understandably so, because the point has no merit.

31.  Mr Chow submitted that the references to Oriental Daily in the banner were merely description of the 2^nd Plaintiff and members of the founding Ma family.  The reference in the article to “東方報業集團” (The Oriental Press Group) was a reference to the 1^st Plaintiff’s parent company.  I do not agree.  This is a matter of impression.  A reading of the article would suffice.

Quantum

32.  The learned judge has awarded general damages of $150,000 to the 1^st Plaintiff and $1.5 million to the 2^nd Plaintiff.  In addition, he awarded aggravated damages in favour of both plaintiffs in the sum of $75,000. 

33.  In para. 56 of the judgment, Chung J set out some of the decisions on awards relied on by the Plaintiffs which included Yaqoob v Asia Times Online Ltd [2008] 4 HKLRD 911 and noted that:

“The highest award made in those decisions was $3 million while the lowest was $200,000.”

34.  Without any further analysis of any of the authorities, and after noting at (para. 58) the Defendants’ submission that “excessive awards might impede freedom of opinion and expression: Cheung Ng Sheong Steven v Eastweek Publisher Ltd & Anor [1995] 3 HKC 601”, the gravity of the allegations in the article and Ming Pao’s circulation at the relevant time of approximately 110,000, the learned judge said:

“60. … I consider an award of $1.5 million should be made in CK Ma’s favour.

61. The $150,000 award which Oriental seeks in based on the decisions in Yaqoob above ($150,000) and Ming Kee Manufacturing Ltd v Man Shing Electrical Manufactory Ltd [1992] 2 HKLR 357 ($50,000).”

35.  Campbell Richard Blakeney-Williams and Ors v Cathay Pacific Airways Ltd and Anor [2011] 1 HKLRD 901 is a recent and important decision of this Court (Stock VP, Kwan JA and Lam J).  There, defamatory statements in a press release were published by, amongst others, the South China Morning Post. The learned trial judge awarded damages of $3,000,000 which the Court of Appeal considered as manifestly excessive and reduced to $700,000.  The following observations from the judgment of the court should be noted:

“180. In Cheung Ng Sheong Steven, the Court of Appeal also held by reference to Article 16 of the Hong Kong Bill of Rights that similar human rights consideration applied in Hong Kong as in England. The Vice-President concurred with and adopted the view of Lord Donaldson in Rantzen v Mirror Group Newspapers Ltd as to the human rights implication for the threshold for intervention by appellate court. As illustrated by Tolstoy Miloslavsky v United Kingdom, disproportionate and excessive award of general damages for defamation can constitute an impermissible incursion upon the freedom of expression. The relevant question is ‘could a reasonable jury have thought that this award was necessary to compensate the plaintiff and re-establish his reputation?’

……

187. As stated in Gatley general damages in defamation cases serve three functions: to act as a consolation to the claimant for the distress he suffers from the publication of the statement; to repair the harm to his reputation; and as a vindication of his reputation. The relevant considerations are succinctly set out in the judgment of the Master of the Rolls in John v MGN at p.607F to 608A, in particular in the following passage,

‘In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be.  The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people.  A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place.’”  

36.  Here, although the Defendants were caught by the repetition rule, Mr Chow is right that a fair reading of the article shows that Ming Pao did not adopt or affirm the allegations made by Ma, and that may be relevant to quantum of damages.  per Simon Brown LJ in Stern at 138E.

37.  Mr Chow pointed to the fact that there is no evidence that the circulation of Oriental Daily has been affected.  He also relied on Oriental Daily’s retort to the article, published on 12 April 2008, which concluded with these robust remarks

“《明報》唔單止虛偽，仲無視事實，甘心為虎作倀，撐一個發送威脅殺人信件及恐嚇嘅罪犯，圖文並茂刊登馬照聲喺高院門口拉起示威橫額，四圍向人話佢畀人栽贓嫁禍，《明報》好明顯已涉及嚴重誹謗，東方為討回公道，已正式入稟高院，要求高院向《明報》發出禁制令及追討賠償。唉，東方報業集團做好市民，檢舉香港拉登嘅違法行為，點知到頭來反而被人不斷滋擾、抹黑，要靠自己循法律途徑討回公道，你話喇，特區政府係咪姑息養奸吖！

一件污，兩件穢，三件臭，《明報》聯同爛果報，一唱一和，與香港拉登眉來眼去，佢哋背後有乜政治目的，同埋唔見得人嘅交易，實在耐人尋味。不過，邪不能勝正，呢啲所作所為，等天收啦！”

38.  An unofficial translation (all translations are unofficial) reads:

“Ming Pao is not only hypocritical, but also blind to the truth. Ming Pao willingly helped the villain to do evil and lent support to a criminal who sent out intimidating letters with threats to kill. Ming Pao reported in words and photos that Ma Chiu Shing held banners and launched a demonstration outside the High Court, and that Ma went around telling others that he had been framed up and that someone had planted the evidence on him. It is obvious that Ming Pao is involved in serious libel. For the sake of fairness, Oriental Press has filed a claim into the High Court for damages and an injunction against Ming Pao. Well, the Oriental Press Group is trying to perform its civic duty as a good citizen to report the illegal acts of Hong Kong Laden. But who would know that it ended up being constantly disturbed and smeared, and had to take legal actions to protect its interest. You tell me, isn’t the SAR government tolerating evil and abetting it?

In for a penny, in for a pound.  Ming Pao and the Rotten Fruit News, one sings and the other joins in the chorus.  They made eyes at Hong Kong Osama bin Laden.  It is thought-provoking what political agendas and secret deals they had.  But the evil can never prevail against the righteousness.  For the evil deeds that they have done, punishment is awaiting them somewhere down the path.”

39.  The Defendants had never sought to justify any of Ma’s allegations.  On 13 April 2008, there was published in Ming Pao at A09 a statement which included the following passages:

“馬的觀點不單止不代表《明報》立場，讀者亦會理解相關言論只是馬照聲單方面的指控並不能代表事實，故報道的整體效果不構成誹謗，另外，《明報》於翌日已將《東方日報》的回應澄清作如實報道。”

“Spokesman from the Editorial Board of Ming Pao says that the speech made by Ma Chiu Shing was displayed only in the pictures of the report. The article itself did not quote what he said. Ma’s views did not represent the stance of Ming Pao, and the readers would understand that the relevant remarks came from Ma alone and did not represent the truth. Therefore the effect of the whole report did not constitute any libel. On the following day, Ming Pao gave a faithful report of the reply from Oriental Daily which clarified the matter.”

40.  Of the cases referred to by the learned judge, Mr McCoy relied most heavily on Yaqoob where $1 million was awarded.  But Yaqoob was a very different case.  There, the complaint was against what purported to be investigative journalism published in Asia Times Online (“ATO”),

“… an Internet-only news service reporting on matters of political and economic interest”.

41.  It is important to note the facts in Yaqoob.  I reproduce the head notes to the report:

“P1 was chairman of the ARY Group, a Dubai holding company. P2, a Dubai company and part of the ARY Group, was engaged in international gold and jewellery trading. P3, a subsidiary of P2 and also part of the ARY Group, provided Urdu-language television broadcasts in the United Kingdom. P1 was also chairman of the World Memon Organisation (the WMO), a charitable organization for the benefit of Memon communities worldwide. On 30 August 2005, the London Bullion Market Association (the LBMA) revoked P2’s associate membership for failure ‘to provide ongoing sponsorship’. On 19 April 2006, D, a Hong Kong company, published an article on its online news service, which alleged that Ps were involved in money laundering, terrorist financing and drug trafficking. The article was subsequently removed from the website. Ps sued D for defamation. In their statement of claim, Ps pleaded that the text of the article meant inter alia: that P2’s membership of the LBMA was revoked as a result of its involvement or suspected involvement in money laundering, terrorist financing and drug trafficking; that P3’s bank accounts were the subject of notices of suspected money laundering and that police believed they were operating an illegal banking service; that P1 used the WMO as a front for terrorist financing; and as owner of the ARY Group, and therefore P2–3, P1 was responsible for their nefarious activities. D alleged that the article was subject to qualified privilege; specifically, that it was in the public interest that Ps’ potential wrongdoings were exposed.

Held, finding for Ps and awarding general damages of $1 million to P1 and $150,000 each to P2–3,”

42.  In Yaqoob, Reyes J held that the article was defamatory and that the defendant did not meet the required standard of journalistic responsibility and therefore, could not claim qualified privilege. He went on to explain his awards, and said:

“157. In Jameel (Mohammed) v. Wall Street Journal Europe Sprl [2007] 1 AC 359 (HL), Mr. Jameel received an award of £30,000 in respect of a wrongful allegation of terrorist financing. The award which I make here is greater because the allegations made against ARY do not stop at terrorist financing. ARY also stands wrongfully accused in the Article of money laundering and drug trafficking.”

43.  I note that in Jameel, the damages were awarded by a jury.  Even so, with respect, I believe Reyes J was right to regard them relevant for comparison purpose. 

44.  When the facts in Yaqoob and Jameel are compared with the present one, I must say, Ma's allegations, serious as they are, are of a different order. 

45.  I note that ATO had a much smaller circulation than Ming Pao. But as Reyes J’s judgment showed:

“146. Mr. Farah of the Washington Post, for instance, posted an online comment referring to the Article. This suggests that he had at least accessed and most probably downloaded the same.

147. Further, among the documents in the bundle are e-mails dated 22 April 2006 from Mr. Benish Memon and Mr. François Thiellet respectively, alerting their friend Mr. Salman Iqbal to the spread of the Article by a Mr. Tariq Muhammad. Mr. Muhammad (possibly a fictitious name) downloaded the Article and sent e-mails attaching the same to various persons with the TV broadcast industry.

148. Nor must I be taken to accept Mr. Remedios’ contention that there has been no publication in Hong Kong.

149. There is, for example, a fax letter dated 4 May 2006 from Mr. Shezad Sheikh of A. J.’s International Ltd. of Hong Kong to the effect that, due to the Article, a Hong Kong dinner to introduce ARY to the business community in Hong Kong had to be cancelled.”

46.  So although ATO had a smaller circulation, it probably had a more targeted readership which mattered to ARY, and actually harmed him.

47.  Moreover, there, as in Jameel, the articles purported to be investigative journalism, and presumably presented as credible.  Here, it is a repetition of accusations by a notorious criminal.  Indeed accusations which many would regard as incredible.

48.  Mr McCoy also relied on Chu Siu Kuk Yuen v Apple Daily Ltd & Ors [2002] 1 HKLRD 1.  Reliance was also placed on the same case in Blakeney-Williams by the plaintiffs.  I respectfully agree with what was said there about Chu Siu Kuk Yuen:

“183. However, the judge’s use of Chu Siu Kuk Yuen v Apple Daily Ltd and others is, in our respectful opinion, problematic. That was a case in which general damages were awarded in the sum of $3 million, the same amount as awarded in favour of each plaintiff in the present case. In awarding the sum in the present case, the judge expressly followed the award in Chu. He referred to Chu and its facts and then to the ‘considerable distress and anxiety in relation to his job prospects’ likely to be experienced by a pilot defamed in the way each plaintiff was defamed by Mr Tyler’s statement and then said that: ‘taking such factors in the round, I think that on balance I should follow the Chu case and award each plaintiff (with the exception of Mr England) general damages of $3 million. … In Chu there was medical evidence that the accusations against the solicitor brought about depression. There was no such evidence here. But I think that it can be safely assumed that pilots who are said to be unprofessional are bound to experience considerable emotional distress as a result.’

184. Chu was a far, far more serious case than the present in terms of the nature of allegation, the loss of reputation consequent upon publication, the distress suffered as a result of publication and the amount appropriate to vindicate that reputation. In that case an allegation was made in a newspaper against a wholly innocent female solicitor. There was not a scintilla of truth in the allegation made against the solicitor that she had absconded with $2 million worth of clients’ funds. Even when an apology was published by the newspaper, it did not state that the plaintiff was not the person for whom the police were looking, but simply stated that the solicitor for whom the police were looking was not named ‘Siu’, which happened to be the plaintiff’s surname. As we see from the headnote to that report:

‘As a result of the article [the plaintiff] suffered depression and the depression materially contributed to her child being born almost 13 weeks premature and remained in a life-threatening condition for some time thereafter.’….

The depression was continuing and it was only after the passage of some considerable time that the plaintiff was able to resume work and even then only half-days at a firm and, only some months after that, full-time. It is noteworthy as well that included in the award of general damages was a proven loss of business profits in the sum of $470,000.

185. The award in Chu was one of the highest hitherto in defamation awards in Hong Kong. Given the facts, that was not surprising.

186. Whilst we recognise that no two cases are alike, we fail, with respect, to see how the judge came to draw an analogy in terms of damages between Chu and the present case.  If in the circumstances of that case $3 million was an appropriate award – and we do not suggest it was inappropriate – an award of the same amount in the present case was, in our judgment, manifestly inappropriate.”

49.  Again, I repeat, here we are concerned with repetition of a libel, and there was no affirmation of the truth of the libel.  Mr McCoy has referred us to Gatley at page 200 where it is stated:

“… the first utterer may have been a person of bad character, or insane, or in a state of intoxication when he uttered it. Slander uttered by such a person would not receive much attention, but a person of good character and sound mind who repeats the slander adds weight and credit to it.”

and submitted that repetition may cause more harm than the original libel.  That may be so but it is far less harmful than something which was reported or presented as true.

50.  Here, the substantial sting of the defamation is contained in the banner.  I believe it is fair to say that readers would understand the banner to represent Ma’s accusations only.  Malice has not been pleaded.  I am entitled to proceed on the basis that a demonstration by a notorious criminal outside the High Court might be news worthy.

51.  So far as the other cases mentioned by Chung J in his judgment are concerned, all but one concerned solicitors who had been accused of dishonest/corrupt conduct and the other involved singers/actresses accused of immoral conduct.

52.  Mr Chow relied on what he called the media cases where both the plaintiffs and the defendants are members of the media.  I note that in Mr McCoy’s written opening at trial, Ming Pao was referred to as a rival, although it serves a different readership.  In these cases the damages awarded ranged from $50,000 to $150,000.  It is useful to reproduce Mr Chow’s summary:

15.       *Oriental Press Group Ltd v Hong Kong Daily News Ltd & Anor [1997] 3 HKC 622	Article alleged that Plaintiff was in serious financial crisis because of a drop in circulation of its publications, and various desperate measures were resorted to in order to boost circulation	(1) Nature of libel was a direct or indirect attack upon P's advertisement business and reputation   (2) D's conduct was culpable in that it did not withdraw the article or apologize   (3) But article published in an inconspicuous column which did not attract much attention   (4) Even if the readers were attracted to the article, they would not consider it seriously   (5) P had not suffered much loss and damage as its circulation still topped Hong Kong's media sector after publication of article complained of	HK$100,000
16.       *Oriental Daily Publisher Ltd v Tin Tin Publication Development Ltd & Others [1998] HKLRD (Yrbk) 602; HCA 2851/1996 (18 February 1998)	Article suggesting under-the-table deal between the Oriental Daily and the mainland government.	Serious article attacking the integrity of the plaintiff at a time when people in Hong Kong and in fact the world were very sensitive on such topic; directly targeted a competitor. But in the inside page of the miscellaneous sector; small circulation; the plaintiff had not been significantly affected by the publication.	HK$150,000
18.       Eastern Express Publisher Ltd & Oriental Press Group Ltd v Mo Man Ching Claudia & Anor [1998] 2 HKC 593; [1999] 1 HKC 64 (CA); [1999] 4 HKC 425 (CFA)	Statements made in a TV programme alleging that Eastern Express Publisher Ltd (P1) and/or Oriental Press Group Ltd (P2) employed bullying tactics to silence its critics	(1) Seriousness of allegations considered in light of the fact that P2 was in a highly-competitive business where one would be less censorious of dishonourable means employed to silence one's competitors (2) Programme seen by at least 300,000 viewers (3) But P2's main newspapers' circulation not affected	Action dismissed by CFI, reversed by CA and restored by CFA (i.e. no liability). $80,000 for P2 (assessed by trial judge if liability established); $80,000 for P2 and separate award of $20,000 for P1 (assessed by CA)
19.       *Oriental Daily Publisher Ltd v Next Magazine Publishing Ltd & Ors, unreported, HCA 9802/96, A Chung J; [1999] 2 HKC 678 (CA); [2000] 2 HKC 557 (CFA)	Article alleged that Plaintiff deliberately quoted Cheng Ka Fu's speech in Legco Panel Meeting out of context in order to attack him because of a pre-existing grudge between Oriental and Cheng		Claimed dismissed, but would have awarded $10,000 to $50,000 had liability been established; Retrial ordered by CA; CFA restored judgment at first instance
20.       *Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd & Ors [1999] 4 HKC 354	Article alleged that Plaintiff was overreacting to a programme called ‘Pearl Report’ and its conduct was petty, that it had initiated an attack on TVB, and Oriental Daily News had become a tool of its group interests and was unable to act in a fair and balanced way	(1) Sting of defamation was lack of ethics in a situation where members of the media were pitted against other members of the media (2) Claudia Mo case adopted as being the closest award	Action dismissed at first instance, but damages would have been fixed at $80,000 had the claim been upheld
32.       Oriental Press Group Ltd v Fevaworks Solutions Ltd [2011] HKEC 280; HCA 2140/2008 (25 February 2011)	Libel posted on internet discussion forum imputing that Ps were involved in the murder of Sister Ha, and the newspapers deliberately avoided reporting the trial and conviction of the offenders, and were biased and unjust; that Ps were founded with drug money, and were involved in drug trafficking and/or money laundering activities, and illegal and/or immoral activities; that the personal plaintiff was a member of a family involved in drug trafficking and was a member of or associated with the 14K triad society		Single award of $100,000 for P1 and P2

*  denotes cases which concern libel published by newspapers/magazines.

53.  Mr McCoy has informed us that the Oriental Press Group Ltd has appealed the decision in Oriental Press Group Ltd and Ors v Fevaworks Solutions Ltd t/a alive! Media and Communications and Anor HCA597/2009; HCA2140/2008 (unreported, dated 25 February 2011).  Fevaworks was the host of an internet discussion forum and concerned publications on a website (described as a 吹水台).  Fevaworks were held liable for not removing the offending words for 8 months or so in respect of what were described in the judgment as the March 2007 words.  Chung J made a single award of $100,000 in favour of both the corporate plaintiffs, one of whom is the 1^st Plaintiff here.  Chung J dismissed claims relating to the so-called October 2008 and January 2009 words.  In relation to the January 2009 words, Mr Ma Ching Kwan (“the 2^nd Plaintiff here) was one of the plaintiffs.  Since Chung J’s decision is under appeal, I express no view on the correctness of any of his decisions.  I note, however, that there, the allegations were more serious, although the forum had a much smaller readership.  Also the defamatory remarks did not apparently emanate from a notorious convicted criminal.

54.  None of the media cases concerned repetition.  I mention repetition to note that in this case, there was no adoption of the truth of Ma’s accusation, and not because repetition would necessarily reduce the amount to be awarded.  Indeed, as Gatley at page 200 shows, sometimes, the repetition would warrant a higher award.  Here, the media cases can be distinguished and regarded as more serious because the offending media (with the exception of Fevaworks Solutions Ltd) were the originators of the defamatory remarks.

55.  Mr Chow further submitted that the Plaintiffs called no witness and adduced no evidence at the trial and there was no evidence that the 2^nd Plaintiff felt injured, hurt, embarrassed or ridiculed or suffered any distress or anxiety as a result of the publication of the Article.  Although the 2^nd Plaintiff was the honorary chairman of Oriental Press Co Ltd, he could not be regarded as a person well known to the general public, or as having any particular reputation.  There was no evidence that the 1^st Plaintiff’s reputation was adversely affected in any way by the publication of the Article.  Unlike its ultimate holding company, Oriental Press Group Ltd, which was (and is) a publicly listed company, ODP being the registered proprietor, publisher and printer of Oriental Daily News could not be regarded as a company well known to the general public, or as having any particular reputation.

56.  Mr Chow further submitted that:

“30 … the Judge was wrong to disregard, or dismiss as having no substantive merits, the following matters:-

(1) Ming Pao did not endorse, adopt or affirm the accusations made by Ma.

(2) The ordinary readers, or at least a good part of the ordinary readers, would unlikely take the accusations made by Ma seriously or as having any substance, validity or credibility (paras 48 to 54 of Judgment). Indeed, this was how the accusations were treated by the Oriental Daily News itself, as can be seen from an editorial published in the column on 12 April 2008.”

57.  With respect, there is force in these submissions.

58.  In my opinion, I believe the award of $1,500,000 in favour of the 2^nd Plaintiff is grossly excessive.  I believe an award of $150,000 to be right.  In the case of the 1^st Plaintiff, the award of $150,000 is manifestly excessive, I would reduce it to $50,000.

Aggravated damages

59.  This is what the learned judge said:

“64. The plaintiffs rely on the defendants’ refusal to apologise and stubborn persistence in disputing liability, as well as their ‘overall motives and conduct’ as matters justifying the making of such an award (para. 73, plaintiffs’ opening).

65. I consider this to be a borderline case.  The denial of liability has no merits.  On the other hand, the trial has been conducted in an efficient and sensible manner.  There is no vigorously conducted defence as regards liability, nor trial conduct which shows bad faith.”

60.  Mr Chow submitted that aggravated damages are not available to a corporation, relying on Collins Stewart Ltd v Financial Times Ltd [2006] EMLR 5, where Gray J said:

“30 It appears to me from those authorities that Mr Browne is right when he says that the defining characteristic of an award of aggravated damages is that its function is to provide a claimant with compensation (‘solatium’) for injury to his or her feelings caused by some conduct on the part of the defendant or for which the defendant is responsible. The concept of injury to feelings runs through the cases, whether caused by the high-handed or insulting behaviour of the defendant either before or after publication or by repetition of the libel or by persistence in a plea of justification or by a failure to apologise. It seems to me that the essence of an award of aggravated damages in libel is not making good damage to the claimant’s reputation as such but rather compensating the claimant for the extra injury to his or her feelings.

31 If that be the correct analysis of the proper function of aggravated damages, it seems to me to follow that aggravated damages are in principle not available to a corporate claimant. The reason is that, as Mr Spearman rightly concedes, a company has no feelings to injure and cannot suffer distress: see Lewis v Daily Telegraph [1964] AC 234, per Lord Reid at 262.”

61.  Mr McCoy has referred us to the contrary view expressed in AG of Nova Scotia et al v Hiltz & Seamone Co. 172 DLR (4^th) 488, a decision of the Nova Scotia Court of Appeal.

62.  The point is not straightforward, but it is not necessary for me to decide it.  I am quite sure that this is not a case which calls for aggravated damages, in respect of either Plaintiff.

63.  Here, although the Defendants had denied liability that was no hint of any justification of the libel.  Rather the Defendants’ case was that no reasonable person would have believed the accusations of a notorious criminal who called himself Hong Kong Bin Laden.  At trial, the Defendants have pleaded and then dropped the defence of responsible journalism or reportage, no doubt for good reasons, but it was not the view of Chung J that it was an irresponsible defence. 

64.  For the above reasons, I would allow the Defendants’ appeal against the awards and reduce the amount of damages payable to the 1^st Plaintiff to $50,000 and the 2^nd Plaintiff $150,000.

65.  I would also make a cost order nisi that the Defendants should have the costs of the appeal to be taxed unless agreed.  Any submissions to be contrary must be submitted in writing within 7 days of this judgment.

Hon Le Pichon JA:

66.  I have had the advantage of reading in draft the judgments of Tang Ag CJHC and Cheung JA.  I agree that the Defendants’ appeal on quantum should be allowed.  I agree with the judgment of Tang Ag CJHC and gratefully adopt his review and analysis of the applicable principles and relevant authorities.

67.  As stated in the recent judgment of this Court in Campbell Richard Blakely-Williams and Ors v Cathay Pacific Airways Ltd and Anor [2011] 1 HKLRD 901 at §187, the relevant considerations are those succinctly set out in the judgment of the Master of the Rolls in John v MGN Ltd [1997] QB 586 at 607F-608A.

68.  While the relevant considerations are not controversial, one should not lose sight of the fact that the assessment of quantum can never be an exact science.  The attribution of monetary value to those considerations or, put differently, their quantitative expression in terms of money is notoriously difficult because it is incapable of precise calculation and admits of differing views.

69.  Accepting that each case turns on its own facts, and particularly so in libel cases, nevertheless, awards made in other cases can provide useful points of reference.  In this regard, Yaqoob v Asia Times Online [2008] 4 HKLRD 911 and Jameel (Mohammed) v Wall Street Journal Europe Sprl [2007] 1 AC 359 (HL) (considered in §§40-47 of the judgment of Tang Ag CJHC) are particularly pertinent.  By comparing the essential features of those cases with the present case, one is better able to gauge the gravity or level of seriousness of the libel involved here, and to put it into proper perspective.

70.  There is no question but that the awards made by the judge in favour of the plaintiffs are manifestly wrong and unsustainable.  I consider the awards proposed by Tang Ag CJHC appropriate, having regard to all the relevant factors.  I would highlight the fact that insofar as the extent of publication is concerned, it is a relevant consideration that only very few of Ming Pao’s readers would have given credence to the accusations.  It would follow that only in the estimation of those readers would the plaintiffs’ reputation have been lowered.

Hon Cheung JA:

71.  I agree with the judgment of Tang Ag CJHC subject respectfully to the following observations of my own.

The repetition rule

72.  If A repeats a libellous statement made by B against C, it is not a defence by A in a libel claim brought against him by C that he only repeats what B has said.  It has been forcefully but correctly said that repeating someone’s libellous statement is just as bad as making the statement directly : Lewis v. Daily Telegraph Ltd [1964] AC 234 per Lord Reid at 260.  This rule is known as the repetition rule and has been part of the common law for almost two centuries.  The principle appeared in M’Pherson v. Daniels (1829) 10 B & C 263 where Bayley J at 271 held that,

‘… a man cannot by law justify the repetition of slander by merely naming the person who first uttered it; he must also shew that he repeated it on a justifiable occasion, and believed it to be true.’

73.  The principle was followed repeatedly in modern decisions. Recently in Curistan v. Times Newspapers Ltd [2009] QB 231, the English Court of Appeal again applied this principle.  Laws LJ stated that

‘81 The rule involves an exception to the law’s general approach to the meaning of words in defamation cases, which is that an impugned publication is to be judged according to the natural and ordinary meaning of the words used, since it may be plain that the publisher is doing no more than repeating what someone else said: in that case the natural and ordinary meaning of the words used is not “X is the case”, but “A said that X is the case”. But for the policy reasons given in the cases, the publisher is in the same position as if he had indeed stated, “X is the case”.’

74.  The impact of the repetition rule is felt most acutely in newspaper reporting.  As Lord Denning stated in Truth (NZ) Ltd v. Holloway [1960] 1 WLR 997 at 1003 :

‘If the words had not been repeated by the newspaper, the damage done … would be as nothing compared to the damage done by this newspaper when it … broadcast the statement to the people at large…

Defamation removed by surrounding words

75.  By repeating the libellous statement, the publisher has ‘adopted’ it in the sense that he had made the libellous statement himself.  In Jameel v. Times Newspapers Ltd [2004] E.M.L.R. 31, Sedley LJ at [16] referred to the  

‘unaddressed tension between the principle that the feasible range of meanings is to be derived from the article as a whole, read through the eyes of a sensible person, and the principle that if the article contains a defamatory statement or imputation, that will define its meaning unless it is very plainly negatived in the same article.’

76.  While this view is a correct one, I do not think that it is helpful in understanding the issue.  As a starting point the ambit of the repetition rule is simply that it is not a defence to say that, ‘I only heard defamatory statement from someone else.’  To that extent it is a strict liability.  But this is as far as this rule goes because one still needs to examine the whole of the statement uttered to see if it is defamatory.  This is expressly recognized by Simon Brown LJ (as he then was) in Stern v. Piper and others [1997] QB 123 where at 136 he said that,

‘… (It would, of course, be another thing entirely if the defendants were able to deny that the publication was defamatory at all—if, say, the defamatory sting of the article had been wholly removed by surrounding words. Then, to use Alderson B.’s famous phrase in Chalmers v. Payne (1835) 2 C.M. & R. 156, 159: “The bane and the antidote must be taken together.” (But such cases are rare and this plainly is not one of them.)’

77.  The Court of Appeal of New South Wales, Australia said in Wake v. John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 49 that

‘… the nature and quality of the defamatory publication may vary, dependent upon whether it is a report of what another has said and whether it is adopted, repudiated or discounted. The purpose of the republication will also have a significant bearing. There can be no such general rule as was submitted to us that the repeater or reporter of the defamatory statement of another is not liable as for defamation unless he adopts it or re-affirms it. Principle and authority both lead in a different direction. Lord Devlin said in Lewis v. Daily Telegraph Ltd. (7) : “For the purpose of the law of libel a hearsay statement is the same as a direct statement, and that is all there is to it.” ’

78.  In Mark v. Associated Newspapers Ltd [2002] EMLR 38, Simon Brown LJ specifically addressed the issue whether, given that under the repetition rule the report of a defamatory allegation is itself prima facie defamatory, the simultaneous reporting of a denial of that allegation is a sufficient antidote to rid the publication as a whole of its otherwise defamatory meaning. He first of all affirmed that ‘the bane and antidote’ principle applies to repetition cases.  As to a neutral report which sets out both an allegation and its denial, he was of the view that

‘42. ….for my part I find it very difficult to conceive of circumstances in which the mere printing of a denial could of itself be said to constitute an antidote sufficient to neutralise the bane let alone that it could be thought so obviously to have this effect as to entitle the court at an interim stage to withdraw the issue from the jury.’

79.  In Robertson v. Newquest (Sunday Herald) Ltd 2006 Rep LR 124, Lord Reed of the Outer House of Scotland, after referring to Jamell and Mark, stated at 129 that,

‘Where an article contains a statement which is prima facie defamatory, I accept that the court may sometimes find it difficult to conclude, as a matter of law, that the article as a whole is nevertheless incapable of conveying a defamatory imputation, but I would not myself be inclined, so far as Scots law is concerned, to elevate that practical difficulty into a legal principle of interpretation. I also note that, while it may sometimes be difficult to reach that conclusion, it is by no means impossible, as is illustrated by Charleston v News Group Newspapers Ltd.’

80.  I do not consider what Simon Brown LJ said about a denial by itself as not being sufficient to constitute an antidote is in the nature of a ‘legal principle of interpretation’.  This must be a fact sensitive issue having considered the nature of the defamatory words and the denial.  If the publication repeats the whole of the defamatory statement, followed by a bare statement that the publisher does not subscribe to the truth of the statement, a reasonable reader may still understand the article as making or repeating a defamatory statement.  In my view the cases of Robertson and Sands cited by the defendant are distinguishable on the facts.

The present case

81.  In this case the photograph was the prominent feature of the article.  The photograph also focused prominently on the banner which clearly contained defamatory statements against the plaintiffs.

82.  The article itself did not contain any denial of the defamatory statement.  No attempt was made in the article to remove the sting of the defamation.  The caption to the photograph and the body of the article referred to the claim by Ma Chiu Sing (‘Ma’) that his criminal intimidation case was a set up and he was wrongly convicted.  The content of the banner referred to forgery and false claims made by the plaintiffs against Ma.  What appeared in Ming Pao the following day was a brief report that the Oriental Daily and its Chairman had issued a report denying Ma’s allegations.

83.  In my view a reasonable reader could understand that the article made or repeated the defamatory statements against the plaintiffs.  In terms of liability I do not consider that a repetition of the utterance by a convicted criminal would make it any less defamatory when the utterance was plainly defamatory and there was no dissociation by Ming Pao of the defamatory statement.  In my view the Judge was correct in his judgment on liability.

Damage

84.  It is worth repeating the often quoted words of Sir Thomas Bingham M.R. in John v. MGN Ltd [1997] QB 586 that

‘The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place.’

They were applied recently by this Court (Stock VP, Kwan JA and Lam J) in Campbell Richard Blakeney-Williams and others v. Cathay Pacific Airways Ltd CACV 268/2009.

85.  Ming Pao is a newspaper with a large readership of 110,000.  It had repeated some serious allegations that were made against the 2^nd plaintiff.  However, even recognizing that, I agree that it is excessive to award damage in the sum of $1.5 million to the 2^nd plaintiff.  Ming Pao is a long established newspaper whose readers in the main belong to the higher educated group, a matter not disputed by Mr. McCoy S.C.  A reasonable reader of Ming Pao will no doubt consider the allegations with the appropriate degree of scepticism (Mr. McCoy S.C. accepted this when he said that, in principle, an ordinary reader may consider the article ‘with a pinch of salt’ while maintaining his support for the award).  In this context it is necessary to bear in mind that Ma with his previous criminal background might have an ulterior motive in putting forward the defamatory statements and also the fact that the article was a report of what Ma had said which, although it was not an answer on the issue of liability, must be a relevant factor to be taken into account in assessing damage.  Considering the context in which the article was made, in my view, the appropriate damage should be $500,000.  I do not consider that the damages awarded in the media cases to be an appropriate comparison.  Here there was an attack on the 1^st plaintiff’s personal integrity although overall it was not as serious as the allegations in Yaqoob where an online news service alleged someone to be a money-launderer, had involved with drug trafficking activities and possible terrorist financing.

Hon Tang Ag CJHC:

86.  For the above reasons, the damages awarded by Chung J are set aside, and in place of them, by a majority, the Defendants are ordered to pay the 1^st Plaintiff damages in the sum of $50,000 and the 2^nd Plaintiff the sum of $150,000.  We also make an order nisi that the Defendants are to have the costs of the appeal to be taxed unless agreed.  Should the Plaintiffs wish to contend for a different costs order, they should do so by written submissions within 7 days, and reply, if any, by the Defendants within 3 days thereafter.