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DCCJ5784/2005
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO. 5784 OF 2005
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| Between |
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KOO MING KOWN |
Plaintiff |
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and |
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NEXT MEDIA LIMITED |
1stDefendant |
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LAI CHEE YING, JIMMY |
2nd Defendant |
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TO KUN SUN, JAMES |
3rd Defendant |
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NEXT MAGAZINE PUBLISHING LIMITED |
4th Defendant |
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Coram: HH Judge Lok in Court
Dates of hearing: 1, 2, 3, 4, 22 & 23 December 2008
Date of handing down of Judgment: 17 February 2009
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J U D G M E N T
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1. This is an unusual case. The Plaintiff, who is a successful businessman, claims that he was motivated by an appeal made by the 2nd Defendant to place advertisements which were to promote democracy in Hong Kong. After placing such advertisements in 15 local newspapers, the Plaintiff now claims against the 2nd Defendant for contribution of half of the advertising expenses incurred by him in placing such advertisements. As the Plaintiff learnt about the 2nd Defendant’s appeal from an interview of the 3rd Defendant reported in a magazine published by the 4th Defendant, and such report, says the Plaintiff, did not truly reflect the offer made by the 2nd Defendant, the Plaintiff also claims against the 3rd and 4th Defendants for damages of negligent misstatement.
2. There is a certain degree of political dimension in this case, as the advertisements placed by the Plaintiff were about the reform of the political system in Hong Kong. At the outset, I must emphasis that the court is not a proper forum to debate the political views of individuals, and it is not the role of the court to decide which proposal should be adopted for the future development of the political system in Hong Kong. However in order to determine legal issues such as the legal effect of the offer made by the 2nd Defendant, it is necessary for the court to take into account what happened in the political arena at the relevant time.
Background of the case
3. The following facts are not in dispute in the present case. The Plaintiff, Mr. Koo Ming Kwon, is a successful businessman and he is the founder and chairman of an electronics manufacturing and designing company in Hong Kong.
4. The 1st Defendant is a major media company with subsidiaries publishing widely circulated newspapers and magazines in Hong Kong. Of such publications, the “Apple Daily” and the “Next Magazine” are amongst the most popular news publications. It is the Plaintiff’s case that the publications of the 1st Defendant are widely recognized to be in support of democracy and “immediate universal suffrage” in Hong Kong, an allegation which is not disputed by the Defendants in the present case. On 7 December 2006, the Plaintiff was granted leave to discontinue the claim against the 1st Defendant.
5. The 2nd Defendant, Mr. Lai Chee Ying, Jimmy, is the well-known chairman of the 1st Defendant. It is the Plaintiff’s case that the 2nd Defendant is an influential figure in the Hong Kong’s political arena because of his control over a huge media conglomerate, his close association with the pro-democratic political figures and his out-spoken attitude. Again, such allegation is not disputed by the Defendants.
6. The 3rd Defendant, Mr. To Kun Sun, James, is a longstanding member of the Legislative Council. It is common ground that he is widely regarded as a fervent supporter for democracy and “immediate universal suffrage” in Hong Kong.
7. The 4th Defendant is a subsidiary company of the 1st Defendant publishing the Next Magazine.
8. In 2005, one of the matters of great concern in the political scene in Hong Kong was whether there should be universal suffrage for both the elections of the Chief Executive in 2007 and all the Legislative Councillors in 2008. On 19 October 2005, the Government of the Hong Kong Special Administrative Region published a proposed constitutional reform package for the future development of the political system in Hong Kong (“the Government Reform Package”). As no fixed timetable for universal suffrage was provided in the Government Reform Package, it attracted criticisms from certain sectors of the public including the members of the so-called “Democrat Camp”.
9. After the publication of the Government Reform Package, an “anonymous old man” placed a full-page advertisement in 5 local newspapers on 28 October 2005. The advertisement contained a question: “告訴我， 我會看見普選的一天嗎？” (the agreed English translations as “Tell me, will I be able to see the day when we have universal suffrage?”) The message of this advertisement was clear, the “anonymous old man” wanted to have immediate universal suffrage for both the elections of the Chief Executive and the Legislative Councillors.
10. On 2 November 2005, the 2nd Defendant wrote an article in Apple Daily (“the 2nd November Article”) with the title: “香港人：請撫着良知行出來” (the agreed English translations as “HongKongers: Please listen to your conscience and step out”). In this article, the 2nd Defendant praised the “anonymous old man” for the courage in publishing the said advertisement. The 2nd Defendant then appealed to all the people in Hong Kong to step forward to fight for immediate universal suffrage and to join the mass demonstration scheduled on 4 December 2005.
11. The 2nd November Article contained the following paragraph in bold prints which is the subject matter of the contractual claim against the 2nd Defendant (“the Subject Paragraph”):
“有心的善男女，如果你要像老伯那樣在《蘋果日報》賣廣告，作出民主的怒吼，我願意給你半價優惠。當然，我們是上市公司，未得股東授權，我沒有權這樣做。不過我可以承諾，你如果要在《蘋果日報》賣廣告喚起香港人的民主意識，我願意自掏荷包替你付一半廣告費。”
The agreed English translations are as follows:
“For any kind-hearted man or woman who cares, if you want to publish an advertisement in ‘Apply Daily’ like what the old man had done to roar for democracy, I shall be willing to offer you a 50% discount. Of course, we are a listed company, I am not empowered to do so without the authorization of shareholders. However, I can promise you that if you want to publish an advertisement in ‘Apple Daily’ with the intent to arouse the democratic consciousness of Hong Kong people, I shall be willing to pay half of the advertisement placement fees for you at my own expense.”
12. After the publication of the 2nd November Article, the following notice was published in Apple Daily in the following days:
“全力支持爭取普選
有心的善男女，如果你要在《蘋果日報》賣廣告，作出民主的怒吼，喚起香港人的民主意識，黎智英先生願意自掏荷包替你付一半廣告費。
敬請聯絡《蘋果日報》鄧先生，電話：xxxxxxxx 或 xxxxxxxx。”
The agreed English translations are as follows:
“FULL SUPPORT TO STRIVE FOR UNIVERSAL SUFFRAGE
For any kind-hearted man or woman who cares, if you want to publish an advertisement in ‘Apple Daily’ to roar for democracy with the intent to arouse the democratic consciousness of Hong Kong people, Mr. Lai Chee Ying will be willing to pay half of the advertisement placement fees for you at his own expense.
Please contact Mr. Tang of ‘Apple Daily’ at xxxxxxxx or xxxxxxxx.”
13. Starting from 8 November 2005, Apple Daily published a slightly different notice about the 2nd Defendant’s “offer”. The format and the wordings of the proposed advertisement were provided in such notice, and anyone wishing to take part in the campaign was asked to pay $200 to Apply Daily Limited. After making the payment, the name of the supporter would then appear as a signatory supporting the message contained in the proposed advertisement.
14. Later on 10 November 2005, the 4th Defendant published an article in the Next magazine (“the 10th November Article”) with the title: “無名阿伯爭民主” (the agreed English translations as “Anonymous old man strives for democracy”). This article is of some importance as it is the subject matter for both the contractual claim against the 2nd Defendant and the negligent misstatement claim against the 3rd and the 4th Defendants. Part of the 10th November Article was about areport of an interview with the 3rd Defendant, who told the reporter how he had assisted the anonymous old man mentioned above in placing the advertisements in newspapers. The article then went on to say that the stance of some of the Legislative Councillors in the Democrat Camp was ambiguous and had softened, as they were prepared to have further discussion about the development of the political system in Hong Kong even without a timetable for universal suffrage. However, said the article, ever since the publication of the first advertisement by the anonymous old man, there were more voices in the community demanding for immediate universal suffrage. After the voicing out of such view, some of the Legislative Councillors in the Democrat Camp changed their stance and insisted the Government to provide a timetable for universal suffrage. According to the article, the 3rd Defendantalso had a conversation with a second anonymous old man, who had earlier donated money to produce street boards to oppose the enactment of legislation under Article 23 of the Basic Law, with the relevant passage as follows:
“「我問佢，你知唔知壹傳媒主席黎智英話邊個登廣告，佢出一半，你咁多嘢講咪參與吓囉。」結果又一阿伯被「激」勵了。”
The agreed English translations are as follows:
“'I asked him, do you know that Lai Chee Ying, the Chairman of Next Media, said he would pay half of the cost for anyone who published an advertisement. You got so much to say, might as well take part in it.’ As a result, another old man was ‘activated’ and encouraged.”
15. After reading the 10th November Article, the Plaintiff sent a draft advertisement to his solicitor, Mr. Keith Ho of Messrs. Wilkinson & Grist, with a view to publish such advertisement in the front pages of all the major newspapers in Hong Kong. After finalising the draft, Mr. Ho sent the draft to one Madam Wong Shui Ching (“Madam Wong”, who is also known as Madam Anissa Lee) of Liko Advertising Design Co., Ltd. (“Liko”) who then liaised with the major newspapers for the publication of the advertisement. The Plaintiff originally planned to publish the advertisement on 15 November 2005, but due to some administrative delay, the advertisement was published in 15 newspapers in Hong Kong on 16 November 2005 (“the Plaintiff’s Advertisement”).
16. The relevant part of the Plaintiff’s Advertisement is as follows:
“全力支持
政制方案
香港全民需要民主，更需要民生安定、經濟繁榮 … … …
... ... ... 反觀普選之需要「循序漸進」，皆因各路人物勢力只會不斷伸手向政府要錢、要權，不顧社會和諧、不顧自我增值表現，只為其私利，陰謀瓜分權力，又未知何時何日始能真正培養出有氣質之政治家、或有實力的政黨、或真正民眾之代表。可惜只盡見是庸才暴露醜聞連連，令人痛心，又終日上街吵鬧的活劇角色全無貢獻可言，除此，未有客觀條件存在，又如何能碓實地定下事關重要的普選日期？
香港市民清楚明白，不相信會有民主派議員被政府牽住鼻子而軟化立場，反而更明白匆匆普選，選上某些自稱民主派議員只顧空談民主，爭名奪利而不自我檢討，實非市民之福。任何市民均有民主自由討論支持或反對政改方案或普選日期，但絕不同意以不民主手法及不顧法紀地威逼民主派內部及一般市民所謂之不得轉軚去支持政制方案。只有盡力支持政制方案，方能確立公平、公正、公開的「以法治港」，方能建立和諧繁榮今日之自由民主的香港，方能培養出高質素的政治領導，方能讓香港市民體驗出個別政黨政客真正對香港、對市民作出之貢獻及成熟表現的真面目，到時普選才可放心讓有良知的他們高高在上統治（實為服務）我們香港市民，自然會有美好的明天。急於變天是否真正民主？真正為民主？
請讓所有有良知的市民支持政府政改方案，爭取普選，支持法治，支持民主。
堂堂正正，有名有姓有良知的老伯
顧明均怒吼
十一月十六日
附：本人亦被相信品格仍然高尚、仍然受人尊重的涂謹申議員「激」勵及壹傳媒主席黎智英（民主黎）所作出「獎」勵津貼一半廣告費而參與政改討論。”
The agreed English translations are as follows:
“FULL SUPPORT FOR CONSTITUTIONAL PACKAGE
All citizens of Hong Kong need to have democracy, what they need even more are stable lives and economic prosperity. ………
……… Contrarily, universal suffrage needs to ‘make gradual and orderly progress’ as different parties and authorities will only keep stretching out their hands to ask the Government for money and power without any regard to social harmony. They pay no attention to their value-added performance. They are only interested in their own benefits. They conspire to divvy up the power. And it is not known when temperamental politicians or competent political parties or real representatives of the public can be eventually fostered. Unfortunately, what can be seen are only mediocrities exposing a succession of scandals. This is heartbreaking. Also, noisy characters in farces of endlessly taking to the streets are not constructive at all. Apart from these, how can the critical date of universal suffrage be confirmed in the absence of objective conditions?
Hong Kong citizens clearly understand and do not believe that there would be Democrat Legislators who would soften their stance on being led around by the Government by the nose. Contrarily they further understand that a hasty universal suffrage will end up in the selection of those who claim themselves to be Democrat Legislators but only indulge in empty talk about democracy, fighting for fame and benefits and not having regard to self-examining themselves. This is no blessing to citizens. Citizens should have democracy and freedom to talk about supporting or opposing the constitutional reform package or the date of universal suffrage, but it is absolutely disapproved to use undemocratic and unlawful means to force members of the Democrats and the general public not to change their stance and become supportive of the constitutional package. It is only by trying one’s best to support the constitutional package can we establish firmly the ‘ruling Hong Kong by law’ in a fair, impartial and open manner. It is only by this way that we can establish today’s harmonious and prosperous Hong Kong which upholds freedom and democracy, foster high-quality political leaders, and let Hong Kong citizens realise the individual political party and politician’s real contributions toward Hong Kong and her citizens as well as the real side of their mature performance. By then, one can rest reassured that when universal suffrage comes, there will be a bright future naturally, in allowing those who have a conscience to rule (while actually to serve) us, Hong Kong people, at the very high level. Is it really democratic to have the sky changed in haste? Is it really for the sake of democracy?
Please let all conscientious citizens support the Government’s constitutional reform package, strive for universal suffrage, give support to the rule of law and give support to democracy.
A furious roar from
Koo Ming Kown
A conscientious old man who is open and aboveboard and has a first name and a last name
16th November
Remarks: I was also ‘activated’ and encouraged by Councillor To Kun Sun, who is still believed to have lofty characters and is respected by others, and the ‘incentive’ and encouragement offered by Lai Chee Ying (the democrat Lai), Chairman of Next Media, to subsidize 50% of the advertising fees, to take part in the constitutional reform discussion.”
17. On the day of the publication of the Plaintiff’s Advertisements, the Plaintiff went to the Legislative Council to lodge a complaint against the 3rd Defendant. The Plaintiff suspected that the anonymous old men referred to by the 3rd Defendant in the 10th November Article did not actually exist, and he therefore requested the Legislative Council to investigate whether there was any impropriety on the part of the 3rd Defendant. As the Legislative Council refused to take up his complaint, the Plaintiff went to a police station to lodge the same complaint against the 3rd Defendant. On the same day, the Plaintiff’s solicitors, Messrs. Wilkinson & Grist, sent a demand letter to the 2nd Defendant asking him to contribute half of the advertising expenses of the Plaintiff’s Advertisements. The 2nd Defendant was given 3 days to make the payment, failing which, said the demand letter, legal action would be instituted by the Plaintiff against the 2nd Defendant. As no reply was given to the Plaintiff’s solicitors before the deadline, the Plaintiff commenced the present action against the 1st to the 3rd Defendants on 21 November 2005.
The claims and the issues in this case
18. It is the Plaintiff’s case that the 2nd Defendant had, in the 2nd November Article, made an unilateral offer to the members of the general public that, should any person place advertisements in newspapers to participate in the discussion of the Government Reform Package, the 2nd Defendant would contribute and pay half of the advertising expenses concerned. Acting upon such offer, the Plaintiff had accepted the 2nd Defendant’s offer by placing the Plaintiff’s Advertisements in 15 newspapers in Hong Kong. As the Plaintiff contends that there was a valid binding contract between the parties, the 2nd Defendant is liable to indemnify the Plaintiff of half of the advertising expenses.
19. The Plaintiff’s original claim as pleaded in the Amended Statement of claim amounts to $554,152, which is half of the amount of the advertising expenses for all the 15 newspapers. However at the commencement of the trial, Mr. Pow SC, counsel for the Plaintiff, conceded that the 2nd Defendant’s offer, when properly construed, was only limited to advertisements placed in Apple Daily only. Hence, the amount of the Plaintiff’s contractual claim against the 2nd Defendantis reduced to $55,500, which is half of the cost for placing the Plaintiff’s Advertisement in Apply Daily on 16 November 2005.
20. It is also the Plaintiff’s case that, before he placed the Plaintiff’s Advertisements, he did not learn about the 2nd Defendant’s offer directly from reading the 2nd November Article, and instead he knew about the offer from a report of the 3rd Defendant’s interview contained in the 10th November Article published in the Next Magazine. As it was not stated in 10th November Article that the 2nd Defendant’s offer was limited to advertisements placed in Apple Daily only, he was not aware of such limitation in the 2nd Defendant’s offer. The Plaintiff therefore contends that the report in the 10th November Article was false, misleading and inaccurate, and the 3rd and the 4th Defendants are liable to pay him damages caused by such negligent misstatement. The total amount of such claim is $470,222.50, which is half of the advertising expenses for all the 15 newspapers after deducting the commission charged by Liko.
21. There is only one major factual dispute in the present case. According to the 2nd and 4th Defendants, one Mr. Tang of Apple Daily Limited had, prior to the publication of the Plaintiff’s Advertisements on 16 November 2005, told Madam Wong of Liko that the 2nd Defendant would not pay any contribution for the advertising fees of the Plaintiff’s Advertisement because such advertisement did not comply with the terms of the 2nd Defendant’s offer. The Plaintiff disputes such allegation.
22. Based on the matters raised in the pleadings and the said factual dispute, the issues of the contractual claim against the 2nd Defendant are as follows:
(a) whether the terms of the alleged offer contained in the 2nd November Article were sufficiently certain so that there was a valid contract made between the Plaintiff and the 2nd Defendant;
(b) assuming that the terms of the offer were certain, whether the Plaintiff had complied with the terms of such offer by placing the Plaintiff’s Advertisements with the messages and contents contained therein;
(c) by making and accepting the alleged offer, whether there was any intention on the part of the parties to create legal relationship;
(d) as the Plaintiff did not learn about the offer directly from the 2nd November Article and he was not by then aware of all the terms of the offer, whether the placing of the Plaintiff’s Advertisements constituted a valid acceptance of the offer; and
(e) as the 2nd Defendant claims that his agent had, prior to the publication of the Plaintiff’s Advertisements, expressly informed the Plaintiff’s agent that the contents in the Plaintiff’s Advertisements did not comply with the terms of the 2nd Defendant’s offer, whether such factual allegation, if found to be the truth, properly constitutes a valid defence to the Plaintiff’s contractual claim.
23. For the claim of negligent misstatement against the 3rd and the 4th Defendants, the issues are:
(a) whether the 3rd and the 4th Defendants did owe a duty of care to the Plaintiff relating to the accuracy of the contents in the 10th November Article;
(b) whether the report contained in the 10th November Article was false, misleading or inaccurate;
(c) whether the Plaintiff did in fact rely on the contents in the 10th November Article in publishing the Plaintiff’s Advertisements.
24. I must point out here that any ruling in favour of the 2nd to the 4th Defendants on one single issue above would have been sufficient to dismiss the claims. However, the Plaintiff fails miserably in nearly all of these issues and so his claims cannot possibly succeed. For the sake of clarity, I will deal with each of these issues in turn and set out the reasons for my rulings against the Plaintiff.
The contractual claim
(i) Certainty of the terms of the alleged offer
25. The first 3 issues of the contractual claim against the 2nd Defendant, which relate to certainty of terms, meaning of the terms of the offer and intention to create legal relationship, are very much interrelated issues. In a way, whether the terms of the offer were sufficiently certain depends very much on the construction of the meaning of the offer. On the other hand, whether the parties did have any intention to create legal relationship has to be considered in the light of the meaning of the offer and the certainty of the terms used in the offer. In any event, I start with the first issue about the certainty of terms.
26. It is trite law that an agreement is not a binding contract if it lacks certainty, either because it is too vague or because it is obviously incomplete. In deciding whether the terms of the 2nd Defendant’s offer were sufficiently certain, the court has to try to ascertain the meaning of such offer.
27. According to the pleadings, the Plaintiff and the 2nd Defendant have different understandings about the terms of the offer. The Plaintiff contends that the offer covered any advertisements which could be regarded as a participation in the discussion of the Government Reform Package. On the other hand, the 2nd Defendant maintains that his offer only covered advertisements which fully supported the fight for universal suffrage in respect of the elections of the Chief Executive and all the Legislative Councillors in Hong Kong.
28. Although this is not a forum for political debate, it is clear that the political view expressed by the Plaintiff in the Plaintiff’s Advertisements was completely different from that of the 2nd Defendant. In the 2nd November Article, the 2nd Defendant had expressly stated that there should be immediate universal suffrage for both the elections of the Chief Executive and all the Legislative Councillors in 2007 and 2008, or at least, there should be a timetable for the introduction of universal suffrage in Hong Kong. On the other hand, the Plaintiff, whilst agreeing generally that there should be democracy in Hong Kong, supported the Government Reform Package with no fixed timetable for universal suffrage. As admitted by the Plaintiff in his oral testimony, timing for the introduction of universal suffrage was the crux of the political debate by that time.
29. I am not here to decide which political view should be preferred for the future development of the political system in Hong Kong. This is not the role of the court. However, I must stress that the subjective understandings of the parties are quite irrelevant for the court to determine the meaning of the offer. In the construction exercise, the terms of the offer have to be construed objectively by reference to all the surrounding circumstances of the case at the time of the making of the offer.
30. In ascertaining the meaning of the terms, Mr. Pow has urged the court to adopt the so-called “blinker approach”. As the author of the 2nd November Article had deliberately highlighted the Subject Paragraph in bold prints with a view to attract the attention of the readers, the court, says Mr. Pow, should just focus on the words in the Subject Paragraph in construing the meaning of the offer. On the other hand, Mr. Chow SC, counsel for the 2nd and the 4th Defendants, submits that the court should look at the contents of the whole 2nd November Article in ascertaining the meaning of the offer.
31. In my judgment, the result of this case would be the same whichever approach is to be adopted. First, I start with Mr. Pow’s blinker approach. According to the wordings in the Subject Paragraph, the expressions “作出民主的怒吼”(to roar for democracy) and “喚起香港人的民主意識” (to arouse the democratic consciousness of Hong Kong people) were used to describe the advertisements covered by the offer, and so the advertisements placed by the offeree must fit with these 2 descriptions. However, I agree with Mr. Chow that the words “作出民主的怒吼”(to roar for democracy) are inherently vague and uncertain, and there is simply no objective yardstick or standard which can be used to determine whether any advertisement is one which amounts to a “roar for democracy”.
32. Further, it is also difficult to judge whether an advertisement is one which arouses the democratic consciousness of the people of Hong Kong. As I see it, the words “democracy” and “democratic consciousness” are political terms. Very much influenced by the political view of each individual, different persons may have different understandings as to what amounts to democracy or democratic consciousness. This is particularly the case when there was a heated political debate about the Government Reform Package and the timing for the introduction of universal suffrage at the time of the making of the offer. The usage of such terms to describe the advertisement was therefore inherently vague, and that is why I say that the terms of the offer were uncertain.
33. Mr. Pow submits that as the wording of the offer was only ambiguous, the court can resolve the issue by adopting an interpretation which is against the interest of the 2nd Defendant who was maker of the offer. In fact, the court in the classic case of Carlill v Carbolic Smoke Ball Co. [1893] 1 QB 256 did apply the rule of contra proferentem in construing the meaning of an offer made in a newspaper advertisement against the interest of the advertiser. However in my judgment, such rule should only be applied if the court, after considering the literal and natural meaning of the words, is capable to find out, with some certainty, 2 or more alternative interpretations of the offer, the court can then apply the rule and adopt a meaning which is against the interest of the maker of the offer. It is quite different from the present case that, by reason of the inherent vagueness and uncertainty of the terms used in the offer, the court simply cannot ascertain the meaning of the terms. Hence, the Plaintiff cannot benefit from the contra proferentem rule in the present case.
34. I also disagree with Mr. Pow’s submission that the phrase “to roar for democracy” was only figurative and descriptive of the act of speaking out in support of democracy, and the court should ignore such expression in ascertaining the meaning of the advertisement qualified for the offer. The facts here clearly show that the 2nd Defendant was appealing for support from the members of the public to join his political propaganda campaign. The 2nd Defendant had expressly used such phrase to describe the support, it then follows that such support, which took the form of placing political advertisements in newspapers, must be one which amounted to “a roar for democracy” before the 2nd Defendant was prepared to pay the contribution. Hence, the court cannot ignore such phrase in construing the meaning of the offer. As I find that the meaning of such phrase is inherently vague and uncertain, the Plaintiff cannot benefit from the blinker approach put forward by Mr. Pow.
35. Further, I find that such approach is wholly unrealistic. Unlike other offers made in a commercial context, the 2nd Defendant’s offer was an unusual one. It referred to advertisements in support of a political propaganda campaign, and the 2nd Defendant himself was prepared to make substantial contribution for advertising expenses to anyone responding to such appeal. Taking into account the unique nature of such offer, I do not accept that a normal and reasonable reader would just look at the very vague and general expressions used in the Subject Paragraph in understanding the meaning of the offer. They would certainly read the whole 2nd November Article in trying to find out what sort of advertisement would be covered by the offer before making a decision whether to incur substantial advertising expenses in response to such appeal.
36. If one purports to read the whole article, the meaning of the 2nd Defendant’s offer may become clearer. The author of the article was of the view that there should be immediate universal suffrage in both the elections in 2007 and 2008, or at least there should be a timetable for the introduction of universal suffrage in Hong Kong. The words “to roar for democracy” and “with the intent to arouse the democratic consciousness of Hong Kong people” must therefore be construed in that context. In other words, “democracy” or “democratic consciousness” must mean that the advertisements had to support the 2nd Defendant’s political view of universal suffrage as expressed in the 2nd November Article. Further, it was clear that the 2nd Defendant was lobbying support to oppose the Government Reform Package published in October 2005, and I do not find that any reasonable reader, after viewing the 2nd November Article, would seriously believe that the 2nd Defendant would be prepared to spend money on any advertisement which did not support his political view.
37. However, does it mean that, after reading the whole article, the meaning of the offer was sufficiently clear? In my judgment, the answer is still no. In the Re-Amended Defence of the 2nd Defendant, it is pleaded that the offer only covered advertisements which supported the fight for universal suffrage in respect of the elections of the Chief Executive and all the Legislative Councillors in Hong Kong. This was certainly in line with the view expressed by the 2nd Defendant in the 2nd November Article. However, one may then raise the following question: was an advertisement which advocated the introduction of universal suffrage at a later date, for example in 2012 or 2017, covered by the offer? The answer is unclear even after reading the whole article. Hence, no matter what approach is to be adopted, I do not find that the terms in the 2nd November Article were sufficiently clear to constitute a legally binding offer, and the Plaintiff’s contractual claim must therefore fail.
(ii) Compliance with the terms of the alleged offer
38. Assuming that I am wrong on the aforesaid analysis and that the terms of the 2nd Defendant’s offer were sufficiently certain, then in my judgment, it is quite obvious that the Plaintiff’s Advertisements did not comply with the terms of the offer.
39. In the Amended Statement of Claim, the Plaintiff pleads that the 2nd Defendant’s offer covered any advertisements which could be regarded as a participation in the discussion of the Government Reform Package. However, it is clear that the actual wordings used in the 2nd November Article did not support such a contention. The Subject Paragraph in the article referred to advertisements which “arouse the democratic consciousness of Hong Kong people”. These words are very different from the terms put forward by the Plaintiff in the pleading. Hence, the Plaintiff has simply failed to prove his case as pleaded.
40. Apart from the pleading issue, it is clear that the 2nd Defendant’s offer, when construed objectively, carried a different meaning. If one reads the 2nd November Article, there could not be any real doubt that the 2nd Defendant was making an appeal to the public to speak out in support of the fight for universal suffrage of the elections of the Chief Executive and all the Legislative Councillors in 2007 and 2008 respectively. He referred to the advertisements placed by the anonymous old man and praised his heroic deed in the fight for universal suffrage. Further, the 2nd Defendant was lobbying support to oppose the Government Reform Package. In such circumstances, I do not find that any reasonable reader would have understood the offer to cover all advertisements which could just be regarded as a participation in the discussion of the Government Reform Package, which is the case put forward by the Plaintiff. On the contrary, the terms of the offer, when construed objectively, only covered advertisements which supported the fight for universal suffrage in Hong Kong.
41. Neither could there be any real doubt that, objectively speaking, the Plaintiff’s Advertisements, which expressed a full support for the Government Reform Package and thus a denial of universal suffrage of the elections of the Chief Executive and all the Legislative Councillors in 2007 and 2008 respectively, is precisely the opposite of what the 2nd Defendant was appealing the general public to do. Hence, there was no performance on the part of the Plaintiff which could possibly qualify as an acceptance of the offer.
42. I am not here to decide whether the political view of the Plaintiff or that of the 2nd Defendant should be preferred for the future development of the political system in Hong Kong. However, the 2nd Defendant was entitled to set out his own terms on what sort of advertisements would qualify for the payment under his offer. As I see it, the terms used by the 2nd Defendant were not sufficiently certain and so such offer did not constitute a legally binding offer, and even if the meaning of the offer was clear, the Plaintiff’s Advertisements did not comply with the terms of such offer. Hence whatever way you look at the Plaintiff’s contractual claim, it is bound to fail.
(iii) Intention to create legal relationship
43. The rulings on the aforesaid issues would have been sufficient to dismiss the Plaintiff’s contractual claim. However, for the sake of completeness, I should perhaps also deal with the few remaining issues of such claim. Before I do so, I should stress that for such issues to become live issues, one has to proceed on the following premises: firstly, the meaning of the 2nd Defendant’s offer was sufficiently clear; and secondly, such offer was very wide as it covered any advertisements which could be regarded as a participation in the discussion of the Government Reform Package. As I have mentioned above, such premises were wholly unrealistic, but for the following discussion to be meaningful, such assumptions have to be made.
44. Assuming that the offer was that wide, I do not find that any objective bystander, after reading the offer, would have seriously believed that there was any intention to create legal relationship on the part of the parties. In fact, the terms of the offer were exceptionally wide, and nearly any advertisement which touched upon the political development of Hong Kong, no matter what was the political view advocated therein, the 2nd Defendant would be subject to legal obligation to pay half of the advertising expenses. The liability might just be unlimited. Further, the advertisement might contain views which were contrary to the political idea of the 2nd Defendant. In such case, why would the 2nd Defendant be so generous to have agreed to pay half of the advertising expenses? This does not make any sense. Hence in my judgment, no reasonable reader would have seriously believed that the 2nd Defendant had had the intention to enter into legal relationship based on such wide offer.
45. On the other hand, if the offer was restricted to only advertisements which supported universal suffrage, it seemed that the 2nd Defendant would have had all the intention to honour his “promise” to pay half of the advertising expenses. In fact, except for the Plaintiff’s Advertisements, the 2nd Defendant had honoured his “commitment” for all the other advertisements placed in response to his appeal. Undoubtedly, all these advertisements supported the 2nd Defendant’s political view as expressed in the 2nd November Article. I must stress again that the subjective intention of the 2nd Defendant is not relevant for the court to determine, objectively, whether there was any intention to create legal relationship on the part of the parties. However, based on the analysis above, I do not find that any objective bystander would have believed that the 2nd Defendant and the Plaintiff had had the intention to enter into legal relationship if the terms of the offer were that wide.
(iv) “Acceptance” with no knowledge of all the terms of the offer
46. It is the Plaintiff’s case that he had not read the 2nd Defendant’s offer as contained in the 2nd November Article, and rather he learnt about the offer through the report of an interview with the 3rd Defendant contained in the 10th November Article. Hence, one of the issues arising in the present case is that, with no direct knowledge of all the terms of the 2nd Defendant’s offer, whether there was valid acceptance of the offer on the part of the Plaintiff in publishing the Plaintiff’s Advertisements on 16 November 2005.
47. Again, for such issue to become a live issue, I have to proceed on the basis that the 2nd Defendant’s offer was wide enough to cover any advertisements which could be regarded as a participation in the discussion of the Government Reform Package, otherwise the Plaintiff’s claim would fail as the Plaintiff’s Advertisements did not fall within the terms of the offer. This assumption would have a significant bearing on the consideration of such issue.
48. The general view is that acceptance in ignorance of an offer cannot create a contract since the parties must reach agreement. It is not enough that the wishes of the offeror and offeree just happen to coincide, and the act or promise constituting the acceptance must be “given in exchange for the offer” (see: Trietel, The Law of Contract, 12 ed., paras. 2-047). In other words, there must be some sort of consensus between the parties before the court can find that there is a binding contract.
49. In R v Clarke (1927) 40 CLR 227, the High Court of Australia gave a very comprehensive analysis of the issue whether “acceptance” in ignorance, or forgetfulness, of the offer can give rise to a binding contract. In that case, a reward was publicly offered by the Government of Western Australia “for such information as shall lead to the arrest and conviction of the person or persons who committed the murders” of 2 police officers. One Mr. Clarke gave information that led to the arrest of a person, who together with another person were subsequently convicted of the murder of one of those officers. Mr. Clarke therefore claimed for the reward. The trial judge found that when Mr. Clarke provided the information, he did so without reference to the offer, but rather he provided the information with a view to clear himself from a false charge of murder. As the claimant had not performed the conditions of the offer acting on the faith of or in reliance upon the offer, the High Court of Australia upheld the decision of the trial judge that there was no acceptance of the offer.
50. In the judgment, the High Court of Australia had carefully reviewed most of the relevant English authorities on the subject. According to the learned justices, unless the offeree’s conduct was done “with reference to” or “in reliance of” or “with intention to accept” the offer, there was no acceptance of the offer.
51. The present case, however, is not one where the Plaintiff was completely ignorant of the 2nd Defendant’s offer. The question is therefore, as Mr. Chow puts it, what is the minimum that the Plaintiff must have known before there could be a valid acceptance of the offer.
52. In this regard, Mr. Pow submits that for there to be a valid acceptance, it is sufficient for the offeree to know the existence and the essence of the offer when he performed the act which complied with the terms of the offer. On the other hand, Mr Chow contends that the offeree must at least know all the material terms of the offer before it can be said that his conduct was done “with reference to” or “in reliance of” or “with intention to accept” the offer.
53. In my judgment, there is very little difference between the 2 tests put forward by counsel. For there to be a valid acceptance, the offeree must first know about the existence of the offer. Further, the offeree must know the essence of the terms of the offer so that the court can confidently say that there is some sort of consensus between the parties and the offeree’s conduct was done “with reference to” or “in reliance of” or “with intention to accept” the offer. As I see it, it is very difficult for the court to lay down more specific guideline, and what is sufficient knowledge must be decided on the facts of each individual case.
54. However, if the terms of the offer are very general, it would be easier for the offeree to say that he knew enough of the essence of the offer. In the present case, assuming that the terms of the offer were wide enough to cover any advertisements which could be regarded as a participation in the discussion of the Government Reform Package, then it seemed that the Plaintiff’s understanding of the terms of the offer was correct and the publication of the Plaintiff’s Advertisements was done by the Plaintiff “with reference to” or “in reliance of” or “with intention to accept” the offer. However, I have already ruled that the meaning of the 2nd Defendant’s offer could not have been that wide, and even if the meaning was that wide, the terms of the offer were either uncertain or that there was no intention on the part of the parties to create legal relationship based on such wide terms. Hence, even if the Plaintiff can succeed on the acceptance issue, it cannot benefit his claim.
55. I have also one more observation about this issue. It is the Plaintiff’s evidence that he relied on the contents in 10th November Article and simply believed that the 2nd Defendant’s offer covered any advertisements which could be regarded as a participation in the discussion of the Government Reform Package. I have great difficulty in accepting such evidence.
56. In the 10th November Article, only a very general account was provided with reference to the offer:
“'I asked him, do you know that Lai Chee Ying, the Chairman of Next Media, said he would pay half of the cost for anyone who published an advertisement. You got so much to say, might as well take part in it.’ As a result, another old man was ‘activated’ and encouraged.” (the agreed English translations)
However, this statement did not state the subject matter which the advertisement was required to be on. Nor did it state the views or stance which the advertisement was required to express in order to qualify for payment under the offer. As I see it, no reasonable reader would simply rely on such general statement and then incur substantial advertising expenses without taking the trouble to find out more about the terms of the offer from the original source.
57. In fact, if one reads the statement in the proper context of the whole article, it would not be too difficult for one to reach the conclusion that in order to qualify for the 2nd Defendant’s offer, the advertisement must be one similar to that published by the “anonymous old man”, which was to support the fight for immediate universal suffrage and to oppose the Government Reform Package. The Plaintiff’s evidence is therefore wholly incredible. Together with the findings I make later in this judgment about the motive of the Plaintiff, I have reason to believe that the Plaintiff had either looked at the 2nd November Article before placing the Plaintiff’s Advertisements, in such case acceptance without knowledge of the terms of the offer would not be an issue; or that the Plaintiff had deliberately made use of the vagueness of the report in the 10th November Article as an excuse to commence the present proceedings against the Defendants, and in such case the Plaintiff had not in fact relied on the 2nd Defendant’s offer in placing the Plaintiff’s Advertisements. Whichever is the truth, the Plaintiff’s contractual claim is bound to fail.
(v) Express refusal by the 2nd Defendant to pay half of the advertising expenses
58. According to the 2nd Defendant, one Mr. Tang Kit Chuen of Apple Daily, who was tasked with the job of handling advertisements placed by members of the public in response to the 2nd Defendant’s appeal, had, prior to 16 November 2005, told the Plaintiff’s agent, Madam Wong of Liko, that the 2nd Defendant would not pay half of the advertising expenses because the Plaintiff’s Advertisement did not comply with the terms of the 2nd Defendant’s offer. By reason of such conversation, the 2nd Defendant claims that the Plaintiff, in placing the Plaintiff’s Advertisement, cannot be regarded as having acted “with reference to” or “in reliance of” or “with intention to accept” the 2nd Defendant’s offer.
59. Based on the findings made in the last section of this judgment, I have already held that the Plaintiff could not have acted in reliance of the offer in placing the Plaintiff’s Advertisements, and so it is absolutely unnecessary for me to determine this particular issue. However, since the parties had devoted considerable time at the trial to deal with the evidence about this only factual dispute, I should perhaps also give my findings on this issue.
60. According to Mr. Tang, who was the Account Manager (Sales and Marketing) of Apple Daily Limited, Madam Wong approached him some time in November 2005 to arrange for the publication of the Plaintiff’s Advertisement. Given the political nature of the advertisement, which was different from the other normal commercial ones, he passed the draft Plaintiff’s Advertisement to the legal department of Apple Daily and his superior, Mr. Peter Hui, for approval. Before the actual publication of the Plaintiff’s Advertisement, Madam Wong asked Mr. Tang whether the 2nd Defendant would contribute half of the advertising expenses. After discussing the matter with Mr. Hui, he told Madam Wong that the 2nd Defendant would not do so because the contents of the Plaintiff’s Advertisement did not comply with the terms of the 2nd Defendant’s offer. Despite such reply, Madam Wong still proceeded with the order in Apple Daily. Further, Mr. Tang had not asked Madam Wong’s client to delete or revise the footnote in the Plaintiff’s Advertisement because it was not the policy of Apple Daily to censor the contents of advertisements.
61. Madam Wong, on the other hand, disputes that she had ever asked Mr. Tang about the contribution of advertising expenses. According to her, she did not look at the details of the draft of the Plaintiff’s Advertisement when she placed the orders on behalf of the Plaintiff. She also did not pay attention to the contents of the footnote in the draft. Some of the newspapers changed the wordings in the footnote of the Plaintiff’s Advertisement. However, Madam Wong did not read the final published versions prepared by the different newspapers, and she did not pay attention to the fact that the footnotes in some of the published advertisements were different from the others.
62. Having carefully considered their evidence, I prefer to accept Mr. Tang’s version on the balance of probabilities. In determining whether Madam Wong had expressly asked Mr. Tang about the contribution of advertising expenses, one of the key considerations is whether Madam Wong knew about the 2nd Defendant’s offer before her dealing with Mr. Tang. In her oral testimony, Madam Wong maintains that she had no such knowledge. She said that there was nothing in the draft of the Plaintiff’s Advertisement which attracted her attention, and she just acted as a conduit in passing the documents and the orders between the sales departments of the various newspapers and the Plaintiff’s solicitors.
63. In my judgment, this does not make a lot of sense. Unlike other commercial advertisements, the Plaintiff’s Advertisement was a unique one involving highly sensitive political issues. Even out of curiosity, I would expect that an advertising agent handling the order would have read through the contents of the advertisement. Further, the Plaintiff’s order was a big and profitable transaction for Madam Wong’s company, and it involved an unusual political advertisement to be published in the front page of every major newspaper in Hong Kong. In such circumstances, Madam Wong should have devoted extra effort in handling this particular order, including checking the accuracy of the final published versions of the Plaintiff’s Advertisements prepared by the different newspapers. This should have been her professional duty. Hence, I do not accept her evidence that she had not paid attention to the contents of the Plaintiff’s Advertisements when she placed such orders.
64. Further, Madam Wong’s evidence about the lack of knowledge of the offer is wholly contradictory to her evidence given in paragraph 4 of her supplemental witness statement, in which she admitted that she knew about the 2nd Defendant’s offer from her peers and friends before she was approached by the Plaintiff’s solicitors to arrange for the placement of the Plaintiff’s Advertisements. The supplemental statement was a very short statement made not too long before the commencement of the trial specifically to challenge Mr. Tang’s evidence about the alleged conversation, and so it is very difficult to explain why there is such glaring inconsistency in her evidence.
65. In fact, Madam Wong is not a very forthcoming witness. She tries very much to distance herself from the tasks that she was instructed to perform at the relevant time. Further, it is very difficult for me to accept her evidence about her role in the revision of the final published versions of the Plaintiff’s Advertisements. Clearly, some of the newspapers had asked the Plaintiff to change the wordings in the footnote of the Plaintiff’s Advertisement. This was certainly an important matter for Madam Wong’s client, and advertising agent like Madam Wong should have played an important role in the communications between the various newspapers and the Plaintiff’s solicitors about the finalisation of the published drafts. Yet, Madam Wong tries to distance herself and claims that she paid very little attention to the contents of the Plaintiff’s Advertisements. As I see it, this is only an attempt by Madam Wong to cover up the fact that she had had knowledge of the 2nd Defendant’s offer when she placed the orders for the publication of the Plaintiff’s Advertisements.
66. According to Mr. Tang, Madam Wong proceeded with the order despite being told that the 2nd Defendant would not pay the contribution for the advertising expenses. In such case, Mr. Pow argues, why should Madam Wong have made the enquiry in the first place? As I see it, it was quite natural for Madam Wong to make such enquiry in view of her knowledge of the 2nd Defendant’s offer. Obviously, the Plaintiff’s Advertisement was an unusual one, and she might want to know more about the payment arrangement in the case that the 2nd Defendant was prepared to make the contribution.
67. Further, I do not find that there is any material inconsistency in Mr. Tang’s evidence. Whilst Mr. Tang would be in the position to deal with most of the matters relating to the placement of advertisements in response to the 2nd Defendant’s appeal, Mr. Tang should have been more careful in dealing with Madam Wong’s order. It was obvious that the political view expressed by the Plaintiff in the Plaintiff’s Advertisement was very different from that of the 2nd Defendant stated in the 2nd November Article, and yet Madam Wong made an enquiry with him as to whether the 2nd Defendant would contribute half of the advertising expenses. As I see it, it would only have been sensible and normal for Mr. Tang to have further consultation with Mr. Hui on such enquiry. Further, whether the name of the Plaintiff had been expressly mentioned in the various conversations between Madam Wong and Mr. Tang is also a minor matter, as I would not expect Mr. Tang to memorise every detail of the conversations. I do not find that such matters affect the creditability of Mr. Tang as a reliable witness.
68. Mr. Pow also challenges Mr. Tang as to why he had allowed the footnote in the Plaintiff’s Advertisement to remain in the original version when the same was published in Apple Daily. The footnote of the original draft stated that the Plaintiff had been encouraged by the offer made by the 2nd Defendant to subsidize half of the advertising expenses to take part in the discussion of the constitutional reform. As the 2nd Defendant was not prepared to pay the contribution, the contents of the footnote could not be right, and yet Mr. Tang had allowed the original version of the footnote to be published in Apple Daily. However, Mr. Tang was a relatively junior staff and there was no reason for him to take the initiative in revising the contents of the footnote, in particular the draft had been approved by the legal department of his company. In any event, the declaration in the footnote only reflected the personal stance of the Plaintiff, and so there was no point for Mr. Tang to depart from the policy of Apple Daily in not censoring the contents of the advertisements placed by its clients.
69. Mr. Pow also argues that Mr. Tang’s version of events is only a recent fabrication, as such defence was not raised in the original Defence of the 2nd Defendant but only in the subsequent amendments. Mr. Tang has already provided an explanation for this in the witness box, and I accept it to be the truth. In my judgment, given that Mr. Tang is a not qualified lawyer, one cannot expect him to have been so alert as to approach the legal advisers of the 2nd Defendant to offer assistance on his own initiative.
70. Hence, I resolve this factual issue in favour the 2nd Defendant. As there is no dispute that Madam Wong was acting as the agent of the Plaintiff at the material time, the Plaintiff, after having knowledge of the express refusal by the 2nd Defendant to pay the contribution and not bothering to check the terms of the 2nd Defendant’s offer from the true source, could not have relied on the 2nd Defendant’s offer in placing the Plaintiff’s Advertisements on 16 November 2005.
71. By reason of the aforesaid, the Plaintiff fails in nearly all of the issues above and the Plaintiff’s contractual claim must therefore fail. I then turn to the negligent misstatement claim.
The negligent misstatement claim
(i) Duty of care
72. The Plaintiff claims that the 3rd and the 4th Defendants were guilty of making negligent misstatement, as they had failed to clarify in the 10th November Article that the 2nd Defendant’s offer was limited to advertisements placed in Apply Daily only. The first issue I have to deal with the negligent misstatement claim is whether the 3rd or the 4th Defendant did owe a duty of care to the Plaintiff in respect of the accuracy of the contents of the report in the 10th November Article.
73. As established by the leading authority of the House of Lords in Hedley Bryne & Co. Ltd. v Heller & Partners Ltd. [1964] AC 465, a “special relationship” between the parties is required to justify the imposition of a duty of care on the defendant towards the plaintiff in the context of negligent misstatement causing economic loss.
74. As set out in paras. 8-84 to 8-91 of Clerk & Lindsell on Tort, 19 ed., there are 3 established tests which have been applied by the courts in determining whether a special relationship exists, namely:
(i) the assumption of responsibility test, being the governing principle laid down in Hedley Byrne;
(ii) the three-stage test of foreseeability, proximity, and fairness, justice and reasonableness introduced by the House of Lords in the decision of Caparo Industries v Dickman [1990] 2 AC 605; and
(iii) the incremental approach recognized by Lord Bridge in Caparo.
75. The assumption of responsibility test appears to be the dominant test for determining the existence of a duty of care in the context of negligent misstatement causing economic loss (see: Henderson v Merret Syndicates Ltd. [1995] 2 AC 145 at 180-181 per Lord Goff of Chieveley, Williams v National Life Health Foods Ltd. [1998] 1 WLR 830 at 837 per Lord Steyn, and Smith v Bush [1990] 1 AC 831 at 846 per Lord Templeman). However in BCCI (Overseas) Ltd. v Price Waterhouse (No. 2) [1998] PNLR 564 at 583, Sir Brian Beill stated that the fact that all 3 tests have been used and approved by the House of Lords suggests that: (i) it may be useful to look at any new set of facts by using each of the 3 approaches in turn; and (ii) if the facts are properly analysed and the policy considerations correctly evaluated, the several approaches will yield the same result. Thus the 3 tests are mutually supportive rather than exclusive in their application.
76. Whichever test is to be applied, the learned authors in Clerk & Lindsell, ibid, have identified the following factors to be considered by the court in determining the issue of duty of care in each case:
(i) the purpose of the statement;
(ii) the knowledge of the defendant, including knowledge of particular use of the statement, knowledge of reliance on such statement, and knowledge of the class to which the advisees belong; and
(iii) reasonable reliance or dependence on the statement, which includes considerations such as dependence and vulnerability, availability of independent advice, authority and skill of defendant, status of defendant, and informal or social context.
77. There is no disagreement between the parties about the legal principles mentioned above, and the divergence lays on the application of these principles.
78. Mr. Chow submits that the consideration of the aforesaid factors would lead to a clear and unmistakable conclusion that there cannot possibly be any duty of care owed by the 3rd or the 4th Defendant to the Plaintiff. I agree. The purpose of the statement in question was a mere report of a conversation between the 3rd Defendant and an old man, and it was not, nor did it purport, to be a report of the 2nd Defendant’s offer or an announcement on behalf of the 2nd Defendant of his offer. Further, taking into account the nature of the contents of the 10th November Article which was about an interview between the 3rd Defendant and a reporter, the 3rd and the 4th Defendants cannot be expected to have knowledge that a reader of such article would use and rely on the reported conversation as being a statement, or containing the terms, of the 2nd Defendant’s unilateral offer and acted upon it without any further verification of the true terms of the offer. Neither is there any basis for thinking that the 3 or the 4th Defendant would reasonably be expected to know that the Plaintiff was a member of a class of persons likely to be relying on the reported interview for such purpose. In such circumstances, it was wholly unreasonable for the Plaintiff to have treated and relied on the reported conversation as being a statement, or setting out the terms, of the 2nd Defendant’s unilateral offer and acted on it as such.
79. Further, the readers of the 10th November Article were plainly not in any position of dependence or vulnerability. Taking into account the nature of the report, one would not expect the readers to treat the 10th November Article as setting out the full terms of the 2nd Defendant’s offer. By that time, the offer was already in the public domain, and it would have been a very simple matter for the readers to check out the terms of such offer from the true source. The fact that the Plaintiff himself had all along been acting with the benefit of legal advice from his solicitor further weakens the Plaintiff’s claim in this regard.
80. In addition, the 3rd and the 4th Defendants did not purport to act as professional persons giving advice intended to guide the conduct of advisees. The 3rd Defendant was just a political figure giving an interview to a reporter, and the 4th Defendant was only a publisher of a local magazine reporting on a matter of political concern at the material time. The magazine was quite different from a legal or financial document like a company prospectus or an audited account. The 10th November Article was also not a legal notice published in the gazette or a newspaper which the readers would normally take the contents as correct without the need of further verification from other sources.
81. Based on the aforesaid considerations, the result of this case would be the same no matter what is the test to be adopted in determining the issue of duty of care. If one were to apply the assumption of responsibility test, there is simply no basis to say that the 3rd or the 4th Defendant had assumed any responsibility to the Plaintiff, being one of an indefinite class of readers, for the accuracy of the reported conversation between the 3rd Defendant and the old man as setting out the full and complete terms of the 2nd Defendant’s offer. If one were to apply the three-stage test of foreseeability, proximity, and fairness, justice and reasonableness, it cannot possibly be argued that it was reasonably foreseeable by the 3rd or the 4th Defendant that a reader of the 10th November Article would simply act on the reported conversation between the 3rd Defendant and the old man without carrying out any further checking on the full and complete terms of the 2nd Defendant’s offer, or that there was any proximate relationship between the 3rd or the 4th Defendant on the one part and the Plaintiff on the other, or that it is fair, just or reasonable to impose a duty on the 3rd or the 4th Defendant in this situation. Lastly, if one were to apply the incremental test, there is also no existing authority which is even remotely similar to the current situation such that the imposition of a duty of care on the part of the 3rd or the 4th Defendant can be said to be incremental.
82. In his submission, Mr. Pow argues that the object of the 10th November Article was to lobby public support for the political propaganda campaign initiated by the 2nd Defendant earlier. This was also the same purpose when the 3rd Defendant gave the interview to the reporter of the Next Magazine. Given the highly sensitive political atmosphere at the relevant time and the 3rd Defendant was an influential political figure, it was foreseesable, says Mr. Pow, that readers would be motivated by the contents of the report and proceed to place advertisements in newspapers in response to such appeal. Further, the 2nd Defendant was the chairman and the majority shareholder of the Next Media Limited and Next Magazine was one of its major publications, readers of such Magazine would, therefore, naturally take that the contents in the 10th November Article would truly reflect all the essential terms of the 2nd Defendant’s offer.
83. With the greatest respect, Mr. Pow has ignored the nature and the context of the 10th November Article. I may agree that the author of the article seemed to support the fight for immediate universal suffrage. However, it did not alter the fact that the article was meant to be a general report about the fight for universal suffrage at the political scene in Hong Kong at the relevant time. The article did not purport to be a report of the 2nd Defendant’s offer or an announcement of the 2nd Defendant’s offer. The article only contained a very brief report of a conversation between the 3rd Defendant and the old man, and very little information or particulars about the offer were provided in the article. In such circumstances, if a reasonable reader wanted to respond to the appeal and determined to place advertisements in newspapers, he or she would certainly have ascertained the true terms of the offer from the original source.
84. Mr. Pow has also referred me to a number of authorities in which the court, in the context of determining the ambit of the defence of qualified privilege to a claim for defamation, had expressed an emerging view of the public policy regarding the duty of the press, which in turn led to the development of the notion of “responsible journalism”. However in my judgment, such notion would only be relevant if the court has to deal with the policy considerations as to whether to impose a duty of care for the making of the alleged negligent misstatement on the part of the 4th Defendant. As the Plaintiff has not even passed the assumption of responsibility, foreseeability or proximity test mentioned above, these authorities cannot assist the Plaintiff in establishing the necessary special relationship between the parties.
85. Based on the aforesaid, I do not find that there was a duty of care owed by the 3rd or the 4th Defendant to the Plaintiff in respect of the accuracy of the report contained in the 10th November Article, and the Plaintiff’s negligent misstatement claim cannot therefore succeed.
(ii) Falsity of the report in the 10th November Article
86. Mr. Chow raises a pleading issue about the negligent misstatement claim. According to the Plaintiff’s pleaded case, his claim is based on the premise that the “report of what was said by the 3rd Defendant was false, misleading or inaccurate” (see: paragraph 19 of the Amended Statement of Claim). In the answer to the Request for Further and Better Particulars of the Amended Statement of Claim, the Plaintiff states that the report was “false, misleading or inaccurate” if the 2nd Defendant did not make the “Offer” which is defined in paragraph 1 of the Amended Statement of Claim. The Plaintiff’s case is therefore based on the assumption that if the 2nd Defendant had not in fact made the “Offer” as defined, then the report would be false, misleading or inaccurate. However, as a matter of fact, the 2nd Defendant had never made any offer in the terms as pleaded in paragraph 1 of the Amended Statement of Claim, it then follows that any true report of the 2nd Defendant’s offer would necessarily be false, misleading or inaccurate on the Plaintiff’s case. The argument is therefore wholly circular in nature.
87. Perhaps one may ignore this technical pleading issue and examine the Plaintiff’s case in substance. Apparently, the Plaintiff’s main complaint is that the 10th November Article did not set out the full terms of the 2nd Defendant’s offer, and that was why the report was false, misleading or inaccurate.
88. However, one must realise that the report, for what it was, was only a report of a conversation between the 3rd Defendant and an “old man”, and not a report of the 2nd Defendant’s offer. If it was a report of the 2nd Defendant’s offer or an announcement on behalf of the 2nd Defendant of his offer, there may be more substance in the argument that the report ought to have set out the full terms of that offer. Hence, all that could be required of the 4th Defendant is that it should faithfully report what was truly said by the 3rd Defendant, and there is no evidence to suggest that what was reported was not an accurate reproduction of what the 3rd Defendant said to the old man.
89. As a matter of fact, in any ordinary day-to-day conversation between 2 persons, it is of course not the case that everything is stated with complete literal accuracy or comprehensively. Much will depend on their relationship and their common knowledge, and the context in which the conversation takes place. As I see it, a reasonable reader viewing the 10th November Article would also approach the contents in the article in the same manner. Hence, no fair reading of the report of what the 3rd Defendant said to the “old man”, considered in the context of the 10th November Article as a whole, can lead to the conclusion that the report was in any way false, misleading or inaccurate. In such case, the Plaintiff’s claim cannot succeed.
(iii) Reliance on the report in the 10th November Article
90. In the course of the trial, both Mr. Chow and Mr. Lee, counsel for the 3rd Defendant, had challenged the Plaintiff that there was ulterior motive behind the present litigation. If there was indeed such motive, it may mean that the Plaintiff had not in fact relied on the contents of the 10th November Article in placing the Plaintiff’s Advertisements, and the Plaintiff’s alleged loss in failing to recover half of the advertising expenses from the 2nd Defendant was not caused by the report of the interview in the 10th November Article.
91. I must emphasis once again that it is not role of the court to decide which political view should be preferred for the future development of the political system in Hong Kong. Looking at the background of the Plaintiff, I may respect him as a charitable person, but with much regret, I must say that the facts of this case strongly support the inference that the Plaintiff had ulterior motive in pursing the present litigation.
92. Firstly, the Plaintiff claims that he relied on the contents of the 10th November Article in placing the Plaintiff’s Advertisements. He simply wanted to participate in the discussion of the Government Reform Package, believing that the 2nd Defendant was so generous in offering to pay half of the advertising fees for such advertisements. However, as I have mentioned in paragraph 57 above, no reasonable reader viewing the 10th November Article should have come to such conclusion. In fact, the contents of the article clearly indicated that, in order for any advertisement to qualify for the offer, it should be one similar to that placed by the anonymous old man which contained the message calling for the introduction of immediate universal suffrage in Hong Kong. Further, if the offer were to cover advertisements to be placed in newspapers other than Apple Daily, as it was the belief of the Plaintiff after viewing the 10th November Article, the offer then became very “unreal” as the 2nd Defendant’s liability might just be unlimited and he would actually be subsidizing his competitors for the revenue arising from such advertisements. In such circumstances, I have great reservation in accepting the Plaintiff’s evidence that he was so naïve by that time and he was simply “activated” or encouraged by the contents in the 10th November Article in placing the Plaintiff’s Advertisements.
93. As I see it, making a legal offer through a newspaper advertisement was unusual. What was more unique was that, unlike other commercial advertisements, the offer related to an advertisement in support of a political propaganda campaign. Nevertheless, despite the benefit of having legal advice at that time, the Plaintiff “relied” on a very general account of a conversation reported in the 10th November Article, and proceeded to incur substantial expenses in placing advertisements in the front page of every major newspaper in Hong Kong. This did not make a lot of sense. In my judgment, even a layman would have taken the trouble of finding more information about the so-called offer from the true source, and yet the Plaintiff decided not to do so despite the benefit of having legal advice by that time. To me, the Plaintiff had deliberately made use of the vagueness of the 2nd Defendant’s offer as an excuse for bringing the present legal action against the Defendants.
94. In a way, the Plaintiff’s attitude towards the whole affair was somewhat inconsistent. On the one hand, he simply trusted the very brief statement about the 2nd Defendant’s offer reported in the 10th November Article. Without taking any step to protect himself by checking out the true terms of the offer, the Plaintiff proceeded to incur substantial advertising expenses for the publication of the Plaintiff’s Advertisements. On the other hand, the Plaintiff was very minded to protect his own interest by including a footnote in the Plaintiff’s Advertisements, declaring that he had been “activated” and encouraged by the 2nd Defendant’s offer in joining the discussion of the Government Reform Package. In my judgment, it is very difficult to explain why the Plaintiff had adopted these selective and yet inconsistent approaches in the handling of the matter.
95. The conduct of the Plaintiff on the day of the publication of the Plaintiff’s Advertisements also casts doubt on the genuineness of the Plaintiff’s motive. When the Plaintiff’s Advertisements were published on 16 November 2005, the Plaintiff went to the Legislative Council and the police to lodge a complaint against the 3rd Defendant for allegedly making up the stories of the anonymous old men with the purpose of luring public support for the fight of immediate universal suffrage in Hong Kong. The Plaintiff’s solicitors, also on the same day, sent a demand letter to the 2nd Defendant, giving the latter only 3 days to make the payment for the contribution of the advertising expenses failing which legal proceedings would be commenced against him. The Plaintiff meant his words and legal proceedings were commenced against the 1st to the 3rd Defendants a few days later on 21 November 2005, with no pre-action letter sent to the 3rd Defendant. In my judgment, these whole series of events and the aggressive manner in which he handled the whole affair are quite inconsistent with the Plaintiff’s evidence that he was simply motivated by the contents in the 10th November Article in placing the Plaintiff’s Advertisements.
96. In his testimony, the Plaintiff explains that he lodged the complaint against the 3rd Defendant so as to provide the latter an opportunity to substantiate his stories about the anonymous old men. If the 3rd Defendant could put forward such evidence, the Plaintiff’s complaint would actually do the 3rd Defendant “a favour”. In the own words of the Plaintiff, he lodged the complaint with a view to “protect” the 3rd Defendant.
97. In my judgment, such explanation is wholly unbelievable. As admitted by the Plaintiff in his own evidence and in the letter to the 3rd Defendant dated 1 August 2006, he disapproved the way in which certain members of the Democrat Camp had adopted in the fight for immediate universal suffrage. He believed that these persons had made up false stories to lure support for their political campaign. It is clear that the Plaintiff did not trust the 2nd and the 3rd Defendants and the publications of the Next Media Limited, and yet he claims that he “relied” on the very brief account of the 2nd Defendant’s offer as stated in the 10th November Article. Such inconsistent attitudes did not make a lot of sense. Even worse, the Plaintiff has tried to disguise his hostility by saying that the 2nd and the 3rd Defendants are still very much his respected persons and it is his intention to protect them. Obviously, the Plaintiff has not been honest about his motive in lodging the complaint against the 3rd Defendant.
98. Lastly, after the Plaintiff knew that the 3rd Defendant would not give oral evidence at the trial of this action, the Plaintiff, quite unusually, wrote to the 3rd Defendant expressing his dissatisfaction about such decision. However, if the Plaintiff only wanted to succeed in his claim, he should not have been frustrated if the 3rd Defendant did not testify at the trial. As admitted by the Plaintiff in the said letter dated 1 August 2006, he commenced the present action against the 3rd Defendant with a view of putting pressure on the latter to deal with the issue of the “anonymous old men” in public. As the 3rd Defendant decided not to testify at the trial, the Plaintiff had lost the opportunity to cross-examine the 3rd Defendant in the witness box. Although the Plaintiff had not tried to conceal such motive, this has nothing to do with the Plaintiff’s claim for the contribution of the advertising expenses from any of the Defendants. In my judgment, political differences should be resolved outside court, and it was not proper for the Plaintiff to make use of these proceedings to put political pressure on the 3rd Defendant to substantiate the stories of the “anonymous old men” in public.
99. Based on the aforesaid observations, I have no choice but to conclude that the Plaintiff had some other ulterior motives in commencing the present action against the Defendants. The Plaintiff may be under the erroneous or misguided belief that he is only fighting this case on matter of principle, but the evidence clearly shows he has tried to make use of the vagueness of the 2nd Defendant’s appeal as an excuse to commence the present proceedings against the Defendants, with the additional purpose of putting political pressure on the Defendants, in particular the 3rd Defendant, to put forward evidence to substantiate their political propaganda campaign. Such findings cast serious doubt on the evidence of the Plaintiff that he had just relied on the contents in the 10th November Article in placing the Plaintiff’s Advertisements. As the element of actual reliance is missing, the Plaintiff’s negligent misstatement claim cannot succeed.
100. In the premises, I dismiss all the Plaintiff’s claims. By reason of the findings I have made about the motive of the Plaintiff in commencing the present action, I make an order nisi that the Plaintiff do pay to the 2nd to the 4th Defendants the costs of this action on an indemnity basis to be taxed if not agreed. The order nisi shall be made absolute 14 days after the date of the handing down of this judgment.
101. Finally, I would like to express my gratitude to all the counsel for the assistance that they have rendered to this court.
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(David Lok)
District Judge |
Mr. Jason Pow SC and Mr. Jose-Antonio Maurellet, instructed by Messrs. Wilkinson & Grist, for the Plaintiff
Mr. Anderson Chow SC, instructed by Messrs. Deacons, for the 2nd & 4th Defendants
Mr. Lee Yee Hung, instructed by Messrs. ONC Lawyers, for the 3rd Defendant
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