LI TSZE SUN v. MING PAO NEWSPAPER LTD

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The Plaintiff was employed as a lecturer in the Department of Journalism and Communication of the Chinese University of Hong Kong ("Chinese University") from August 1989 and his employment was terminated in July, 1994. On or about 14th March, 1994, the Plaintiff was notified of the Chinese University's decision to terminate his employment. He was very unhappy with that decision. He therefore wrote a letter to the Defendant, the Ming Pao Newspapers Limited airing his grievance and his views on various aspects of the administration of the Chinese University and the way that he was being treated by the Department of Journalism and Communication.

2. The letter was a very long letter running into some 4,000 characters. In the letter the Plaintiff covered a wide range of subjects and complaints against the Chinese University and in particular the Department of Journalism and Communication and the persons in charge of that Department and in many instances, rather emotional expressions and strong language had been used. In particular the letter sought to say that the Plaintiff was not informed of the reason for the Chinese University's not renewing his contract, that he assumed or rather surmised that Mr Comstock, the Chairman of the Department of Journalism and Communication during 1991 to 1993 was very dissatisfied with his performance, that Mr Comstock had written his assessment report on the Plaintiff before he had seen the Plaintiff's many publications, that the assessment criteria of the Chinese University were vague and ambiguous. The letter also mentioned that the decision makers of the University and the Department were very dissatisfied with the views expressed by the Plaintiff through the press which included (i) his firm belief in the basic law and one country two system; (ii) most people in Hong Kong regarded the right of abode in U.K. as buying the lottery; (iii) the governor, Chris Pattern did not understand the genuine meaning of press freedom; (iv) he was opposed to the Pattern's political reforms and his other radical reform measures; (v) he was opposed to carrying out "internationalization" with features of colonialism and foreign powers oppressing the rights of the local people; and (vi) his suggestion that the prerequisite for the people of Hong Kong to accept the leadership of the university was that the university itself should establish "fair" and "open" system. The letter also said that the opinion he held set out above could not be tolerated by the Chinese University or the Department of Journalism & Communication. The letter also criticised the Department of Journalism and Communication as being occupied by a gang of people, and that it had become an ideologically anti-communist base and that it employed too many foreigners as its teaching staffs. The letter also mentioned that the Plaintiff felt that his foreign colleagues were always justifying themselves nakedly saying that they did not believe "one country, two system", that they did not believe the Chinese Government, that they did not believe that "Hong Kong people governing Hong Kong" would succeed, and that they neither have knowledge of China nor Hong Kong. The Plaintiff also said that it was not appropriate for these colleagues to teach journalism and communication nor was it appropriate for these people to foster future officials of the Special Administrative Region. The Plaintiff also criticised the Department's decision not to continue to employ 2 full time teachers to teach Chinese journalism and criticised Mr Comstock who, the Plaintiff said in his letter, did not know Chinese at all, for his not seeing it as important to develop Chinese journalism.

3. The letter was not just faxed to the Defendant. It was in fact also faxed to some other newspapers. There is no doubt in my mind that the purpose for sending the letter to the Defendant and other newspapers was so that the letter could be published and so that the Plaintiff's views as expressed in the letter would be made known to the public at large. Further in view of the length of the letter, the Plaintiff must have realised that it would also be likely that the Defendant and other newspapers might not publish the whole of the letter but rather just an abridged version or summary of it. I have no evidence on exactly how many other newspapers had received the fax, nor was there any evidence before me as to how the other newspapers had dealt with the Plaintiff's fax after receiving it. There was likewise no evidence before me as to whether the Defendant was aware of the fact that the same letter had been faxed also to other newspapers.

4. After the Defendant was in receipt of the letter, the chief reporter considered that the subject matter raised in the letter was of public importance and accordingly he asked a reporter Miss Chik to follow up the matter and to collect the necessary information on the subject. Miss Chik did not give any evidence before me. However her statement was admitted under the Evidence Ordinance. According to her statement, she had a long telephone conversation with the Plaintiff on the contents of his fax and the circumstances of his dismissal by the Chinese University. Also in this conversation, she sought the Plaintiff's verification of the contents of his fax. Apart from speaking to the Plaintiff, she also spoke to the Department Head of the Journalism and Communication Department of the Chinese University, Leung Wai Yin and also the former Chairman of the Teaching Staff Association of the Chinese University, Shum Ka Ping enquiring from them of the incident complained of by the Plaintiff. Based on the fax and the further information obtained in the various conversations, she drafted the first part of the article published on 16th March, 1994 under the caption

"DIFFICULT TO STAY IN THE DEPARTMENT OF JOURNALISM THE CHINESE UNIVERSITY WILL NOT RENEW EMPLOYMENT, LI TSZE SUN PROTESTS POLITICAL DISMISSAL".

5. The Plaintiff did not dispute that there was a conversation with Miss Chik shortly after he sent the fax to the Defendant. However he maintained that the conversation was a very brief conversation. He said that in this conversation he told Miss Chik that he did not accept the interview and the further told Miss Chik not to make a pseudo-story which he told me was a jargon in journalism meaning to make up something to create news.

6. I do not think that it is necessary for me to decide whether the conversation was in fact a long one or a short one as it is plainly a matter of impression and the parties concerned may have bona fide differences in their recollection. Having made full allowance for the fact that Miss Chik's statement had not been tested in cross-examination, and having observed the Plaintiff when he gave his evidence, on the balance of probabilities, I found that in the conversation, Miss Chik must have sought and obtained the Plaintiff's verification on the contents of his letter and that the Plaintiff must have spoken to Miss Chik on the contents of his letter and also on his grievance about his dismissal by the Chinese University. As the main purpose of the sending of the fax to the Defendant was so that the Defendant could publish the Plaintiff's views and grievance, I see no reason for the Plaintiff to avoid speaking to a reporter from the Defendant on the very subject matter which he would like the Defendant to publish.

7. Meanwhile another reporter of the Defendant Miss Ma Choi Yuk also telephoned 3 lecturers at the Journalism Department for their comments on the case, but only one of them, namely Mr Lee Siu Nam, Paul ("Mr Lee") was prepared to comment. In her evidence in chief, she told me that she faxed a copy of the Plaintiff's letter to Mr Lee and spoke to him again after he had the opportunity to read the Plaintiff's letter. Her evidence on this point was at variance with what was set out in her witness statement which only mentioned that she had read out the contents of the Plaintiff's complaints to Mr Lee and this version set out in the witness statement was supported by the witness statement of Mr Lee. I am of the view that Miss Ma's recollection in the witness box must have been mistaken. I find that she had told Mr Lee of the Plaintiff's complaints and she recorded his comments and reproduced them in the 2nd part of the article published on 16th March, 1994 under the caption

"COLLEAGUE OF DEPARTMENT OF JOURNALISM QUERIES LI TSZE SUN ON EVASION OF OWN'S RESPONSIBILITY AND POLITICIZING THE INCIDENT".

8. Mr Lee was not called by the Defendant. His witness statement was admitted under the Evidence Ordinance. In his statement, he said that he was told of the contents of the Plaintiff's letter and he remembered that apart from complaining against the Chinese University about the way that the Plaintiff had been dismissed, the Plaintiff had also attacked other members of the Journalism and Communication Department in saying that they were anti-communist and played political games, etc. He said that he was quite offended when he heard those allegations as that attack was directed against the members of the Department including himself. He appreciated that the Defendant would publish the Plaintiff's attack as well as his comments. He could not remember the exact comments but he did recall saying to Miss Ma that to his knowledge the Plaintiff's teaching evaluation organized by the Department was below average. He also said in his statement that he recalled that when Miss Ma asked him why the Plaintiff's contract was not renewed although the Plaintiff had some publications including a couple of books, he responded by saying that:

"In the process of substantiation, apart from publications, the originality and contribution of the works are also considered. For example, if a book which is just a compilation of abstract of what other predecessors have written, it would not be taken as having great contribution. Or, a translation of foreign works is also generally considered as having little value in the process of substantiation."

9. The article was published on 16th March, 1994. It was divided into two parts. The first part purported to report that the Plaintiff had written to the Defendant a long letter to protest against his being dismissed by the Department of Journalism and Communication of the Chinese University and that the dismissal was unwarranted. This part of the article also recorded the many complaints made by the Plaintiff against the University, its assessment and evaluation of the Plaintiff. It also recorded that the Plaintiff considered that the real reason for his dismissal was because of the Plaintiff's political opinion and it also purported to quote from the Plaintiff that "the Department of Journalism and Communication is occupied by a gang of people and is ideologically an anti-communist base." It is fair to say that the words quoted were in fact found in the letter written by the Plaintiff and faxed to the Defendant for publication. The second part of the article purported to be the response made by a lecturer on the points raised by the Plaintiff.

10. Although the article was published on 16th March, 1994, the Plaintiff did not make any complaint of libel until 10th November, 1994 when his solicitor first wrote to the Defendant. In this letter the Plaintiff merely alleged in general terms that the two parts of the article were libellous without specifying which particular passages in the article were libellous. The letter further asked the Defendant to publish a complete withdrawal and apology and to make proposal on the amount which the Defendant was prepared to pay by way compensation to the Plaintiff. In this letter the Plaintiff's solicitor also informed the Defendant that since the termination of his employment with the Chinese University, the Plaintiff had been unable to obtain similar employment by any educational institute in Hong Kong despite his efforts to do so.

11. The writ was issued on 28th November, 1994. In the Statement of Claim the Plaintiff identified five passages in the article published by the Defendant in its newspaper as being libellous to the Plaintiff. The original text was in Chinese. The official translation of the five passages are as follows:-

12. The Plaintiff's case was that all the aforesaid passages in their natural meaning were meant to be referring to the Plaintiff. With the exception of the libel complained of in paragraph 5(c) of the Statement of Claim, the Defendant did not dispute that. The Defendant however raised various defence to each of the libel complained of. The main crux of this matter is whether the defences were made out.

13. In relation to the libel complained of in paragraph 3 of the Statement of Claim, the only defence raised by the Defendant was that the passage complained of was not defamatory when read in the context of the whole article. In this respect I accept the summary of the law as set out in paragraph 31 of Gatley on Libel and Slander 8th edition that:

"A defamatory imputation is one to a man's discredit, or which tends to lower him in the estimation of others, or to expose him to hatred contempt or ridicule, or to injure his reputation in his office, trade or profession, or to injure his financial credit. The standard of opinion is that of right-thinking persons generally."

14. The statement complained of in paragraph 3 of the Statement of Claim was found under the sub-heading of "Assessment Criteria too general, Unfair" and the words appeared in the following context:-

Read in the context of the article, it is quite plain that the statement complained of and reproduced in italics in the passage quoted above was meant to convey to the reader that although Comstock had made an unfavourable assessment report on the Plaintiff, this was an unfair assessment and was one of the very subject matters of the Plaintiff's complaints. The Plaintiff considered that such assessment report was unfair and that the Plaintiff had given good reasons to justify his complaints. Even though it is not true that in the Assessment Report of Comstock on the Plaintiff, Mr Comstock had expressed dissatisfaction with the Plaintiff's publications, teaching, cooperativeness and teammateship, I do not think that the sentence complained of read not in isolation but properly in the context of the article would have any defamatory imputation. I do not think that the statement would lower the Plaintiff in the estimation of right-thinking members of the public generally but instead I would consider that an ordinary right-thinking member of the public when reading this passage in the context would perceive that the Plaintiff was victimised by the unfair system of assessment, the Department and also Mr Comstock. This would rather incite sympathy towards the Plaintiff rather than lower him in the estimation of a right-thinking member of the public.

15. In relation to the libel complained of in paragraph 5 of the Statement of Claim, the Defendant relied on the defence of qualified privilege as a general defence. The Defendant contended that qualified privilege existed in this case (a) as a right derived from the right of a person who has been attacked to defend the attack, and/or (b) as an independent right belonging to the Defendant by virtue of public interest and the moral duty on the part of the Defendant to communicate the matter complained of to the public.

16. It would be convenient for me to deal with contention (b) first. It is well established that apart from the instances of qualified privileges provided by the Defamation Ordinance, the press did not enjoy any special right to qualified privilege. In order to be protected by qualified privilege the publication by the press to the public must not just be matters of public interest but it must be in the public interest to publish the matters complained of. In Chapman v. Ellesmere [1932]2 K.B. 431 the Court of Appeal rejected the contention that there was qualified privilege in a publication in the press of the decision of the stewards of the Jockey Club finding that a horse had been drugged and warning the plaintiff off the New Market Heath. In coming to such conclusion, Lord Hanworth M.R. said (at page 456):

"There remains the question whether the plea of privilege can afford protection to the defendants in respect of these paragraphs. It is said that it was a matter of public interest to all racing people, to all the betting public, to all who stand outside these two classes, but yet take an interest in the sport of horse-racing, and in particular in the maintenance of its honour and freedom from corrupt practices - the practice of drugging horses for races having at that time, attracted much attention. These are strong arguments. But though the vehicle of public press has been held to be a proper and protected one, so as to defeat a claim for libel, where it has been used 'as the only effective mode' to answer a charge which had already received as wide a circulation (see Adam v. Ward (1915) 31 T.L.R. 299 and Brown v. Croome (1817) 2 Stark 297, there is no authority which protects the statement in the newspaper, where it is made not in answer, but as a fresh item on which a general interest, as distinguished from a particular interest already aroused, prevails. Buckley L.J. in Adam v. Ward stated a proposition which was approved in the House of Lords in the following terms:

'If the matter is matter of public interest and the party who publishes it owes a duty to communicate it to the public, the publication is privileged, and in this sense duty means not a duty as a matter of law, but, to quote Lindley L.J.'s words in Stuart v. Bell [1891] 2 Q.B. 341, 350, "a duty recognised by English people of ordinary intelligence and moral principle." But these words must be taken in relation to the facts of the case. It appears to me that the learned Judge meant by the words 'matter is of public interest' 'has already become of public interest'. The duty cannot arise in respect of a matter not yet made public at all.'"

17. I agree with the Defendant's contention that the matter published in the second part of the article was of the public interest. Plainly the way in which the Chinese University was run and the competence of its teaching staffs etc. are matters to which the public would have an interest in knowing. This is all the more so because the Chinese University was funded largely by public money and is one of the leading tertiary institutions in Hong Kong. But this per se is plainly not sufficient to give rise to qualified privilege in this case. The Defendant however contended that the publication was in the public interest in that this second part of the article was published in pursuance of the Defendant's duty to inform the public of the comments by a lecturer in response to the Plaintiff's serious charge against the Chinese University, the Department of Journalism and Communication and also the other staffs of that Department. In this respect, the Defendant contended that the qualified privilege arose in the same way as in the case of Adam v. Ward (1915) 31 T.L.R. 299.

18. In Adam v. Ward the plaintiff publicly attacked an officer of the Army in his character and the Army Council, having investigated the matter, found that the attack was wholly unjustifiable. The defendant who was at the time Permanent Under-secretary for War was instructed to publish an official communique, including a letter to the officer who had been attacked by the plaintiff. This letter alleged that the plaintiff had been guilty of dishonourable conduct and in consequence thereof had been removed from his regiment. In an action brought by the plaintiff against the defendant, the Court of Appeal upheld the decision that the publication was made on a privileged occasion. In coming to this conclusion Buckley L.J. said (at page 303):

"The foundation of an action for defamation is malice. From the utterance or publication of untrue defamatory language the law implies malice. A privileged occasion is one in which that presumption of malice is rebutted by the circumstances in which the defamatory language was used. The presumption of malice is rebutted if the untrue defamatory language consist of expressions fairly and honestly used in the discharge of some public or private duty. The test whether such a duty exists may depend upon:

The duty need not be a legal duty. Duty for this purpose includes moral and social duties ........."

19. Further at page 304 Buckley L.J. went on to say:

20. Thus in Adam v. Ward the court found that there was privilege because of the following matters:-

21. In the present case, the Defendant contended that by writing the letter and faxing it to the Defendant, the Plaintiff had in fact made an attack on the Chinese University, the Department of Journalism and Communication and the staffs employed by that department. Although the Plaintiff's letter had not been published in full by the Defendant, the first part of the article was a fair summary of the Plaintiff's attack. Indeed apart from the statement of libel which the Plaintiff had complained of in paragraph 3 of the Statement of Claim, the Plaintiff had not alleged that the first part of the article was not a fair summary of his letter and grievance. Further it seems that apart from the statement complained of in paragraph 3 of the Statement of Claim, the only other complaint that the Plaintiff had in relation to the first part of the article was that the contents was presented in the form of news and not as a matter of complaints. Of course the Plaintiff would not accept that in his letter he made various attacks on the Chinese University, the Department of Journalism and Communication and its staffs, but instead he maintained that what he said in his letters were just a description of his own feeling and his encounter and experience with the Chinese University, the Department and its staffs. Whether "attack" is the right word or not, I am of the view that what the Plaintiff had said in his letter was clearly severe criticisms on the Chinese University, the Department of Journalism and Communication and its staffs so much so that I have no hesitation in holding that the Chinese University, the Department of Journalism and Communication and its staffs would have been amply justified in replying to such criticism in defence of their own reputation.

22. The facts of the present case were of course quite different from those in Adam v. Ward. First the publication of the Plaintiff's attack and the reply were in fact made on one and the same day in two parts of the same article. There was thus no previous public attack to answer as such. However I am of the view that the Defendant was right in its contention that the distinction between the situation in the present case and where the publication of the Plaintiff's attack on the first day and the publication of the reply immediately on the next day was too thin. If the public would have an interest in knowing the reply to the Plaintiff's attack and the Defendant had a duty to publish such reply, then it must be the case that the sooner that the reply is published the better. Thus I do not consider that the mere fact that the Plaintiff's attack and the reply to the Plaintiff's attack was published on the same day and side by side to one another is a ground for holding that no privilege should exist.

23. However the Defendant's difficulty in this case is that the Plaintiff had not published his attacks and criticism to the public. The Plaintiff merely sent a copy of his letter containing all these attacks or criticisms to the Defendant (and other newspapers) and this was the extent of the Plaintiff's publication. Although there could be no doubt that the Plaintiff had intended that the public should learn of the contents of his letter through the publication of the Defendant (and also other newspapers) it was the Defendant who made up its mind to publish the Plaintiff's criticisms and attacks to the public. Likewise since the Plaintiff had published his criticism and attacks to the Defendant, Mr Lee or perhaps also other staffs of the Department of Journalism and Communication would be justified in publishing their comments and reply to the Plaintiff's criticism and attack to the Defendant. This was exactly what Mr Lee had done when he spoke to Miss Ma. I do not think that the Defendant could create a situation of privilege out of its own volition. I think the matter could really be tested this way: Supposing that the Plaintiff's letter contained libellous allegation against some one, say Mr Comstock, surely the fact that the subject matter of the letter was of the public interest would not per se be sufficient to create a situation of qualified privilege to justify the Defendant's publishing the Plaintiff's letter (See London Artists Ltd v. Littler [1968]1 W.L.R. 607). In this situation, I cannot see why the fact that the Defendant should decide to publish both the libel contained in the Plaintiff's letter and the comments and reply thereto should entitle the Defendant to claim qualified privilege to either or both.

24. Thus on the facts of the present case, I am not persuaded that the Defendant was entitled to claim qualified privilege in its own right. I would however observe that the situation may well be different if before the Defendant published the reply, the Plaintiff had already published or caused to be published to the public through other media or newspapers his criticisms and attacks on the Chinese University, the Department of Journalism and Communication and its staffs, or at least, at the time of the publication of the reply, the Defendant was aware that some other newspapers would be likely to publish the Plaintiff's criticism and attack on the same day. However in view of the fact that there was no evidence to suggest that the Defendant was aware of the fact that the Plaintiff had also faxed his letter to other newspapers, the situation did not arise at all.

25. In support of the contention that the Defendant was entitled to claim qualified privilege as a right derived from Mr Lee, the Defendant had sought to rely the statement of the law set out in paragraph 514 of Gatley on Libel 8th edition:-

"Reply to attack. Again, a person whose character or conduct has been attacked is entitled to answer such attack, and any defamatory statements he may make about the person who attacked him will be privileged, provided they are published bona fide and are fairly relevant to the accusations made. 'The law justifies a man in repelling a libellous charge by a denial or an explanation. He has a qualified privilege to answer the charge; and if he does so in good faith, and what he publishes is fairly an answer, and is published for the purpose of repelling the charge, and not with malice, it is privileged, though it be false.'"

Further the Defendant also relied on the following passage from Carter-Ruck on Libel and Slander 4th edition, page 135:-

"If a man is attacked through the columns of a newspaper he is entitled to have his reply published in that newspaper and so far as he is concerned his reply - provided it is reasonable - will be privileged. What is the position of the newspaper? It is submitted that there are three grounds on which a newspaper may also claim the protection of qualified privilege. In the first place, a newspaper has a privilege which it derives from the person defending his reputation through its columns: the disadvantage of this derivative privilege is that as the law stands a newspaper may lose this protection if it is proved that the writer was actuated by express malice. Secondly, a newspaper is bound in self-defence and in its own interest to publish such a letter when the first statement coming within the Defamation Act 1952 Schedule Pt II, which statements are privileged subject to the publication of a 'reasonable letter or statement by way of contradiction or explanation'. Thirdly, it is submitted, that a newspaper owes a duty to a person who has been attacked in its columns and to its readers who have a corresponding interest, to publish to them that person's reply. In certain circumstances a newspaper may have such a duty even though the original attack was not made in the newspaper (Adam v. Ward). There is as yet no authority establishing this third ground of privilege but it is submitted that there is much to be said in favour of it, especially because if a newspaper does not have an independent privilege its defence will fail where - unknown to the newspaper and without any malice on its part - the writer is proved to have been actuated by express malice."

26. In so far as the second ground put forward by the learned authors of Carter-Ruck on Libel and Slander is concerned, it has no application to the present case, as the original publication of and concerning the Plaintiff's attacks or criticism did not fall within the Schedule to the Defamation Ordinance. So far as the third ground is concern, it is an argument which would in fact support the contention that there is a privilege which the newspaper could claim in its own right. However for reasons set out above, I am of the view that the Defendant was not entitled to such privilege on the facts of this case.

27. The Defendant relied heavily on the first reason given by the authors and contended that as the Plaintiff had made an attack on inter alia the Department of Journalism and Communication and the staffs of that department and this attack was made in a letter which the Plaintiff intended should be published either in full in its original form or in the form of a summary, persons such as Mr Lee would have been justified in replying to such attack and if the Plaintiff's attack be published to the public by the Defendant, then the reply may also be so published by the Defendant. Indeed, in Mr Lee's statement, he confirmed that he came to know of the Plaintiff's attacks when the contents of the Plaintiff's letter was read to him and he made his comments in reply and he also understood that the Defendant would publish the Plaintiff's attack as well as his comments in reply. While the Defendant could not create a privilege situation for itself out of its own volition in publishing the Plaintiff's attacks, it is contended that the same consideration would not apply to a privilege to be claimed by Mr Lee who had no control over whether the Plaintiff's attacks should be published or not. Thus in effect so far as Mr Lee was concerned, his right to claim privilege would be the same as if the Plaintiff's attacks were published on day one, and his reply was published on day two. The Defendant's contention was that if Mr Lee was entitled to claim privilege likewise the Defendant should also be entitled to claim the same privilege as something which it derived from Mr Lee, the person defending the Plaintiff's attacks.

28. I am of the view that there was substance in the Defendant's submission that the Defendant should be entitled to claim qualified privilege as a privilege derived from Mr Lee. However such derivative qualified privilege would only exist so long as the Defendant's reporting of the comments of Mr Lee could be said to be a fair and accurate reporting of the comments of Mr Lee, and that the comments by Mr Lee could be properly said to be in answer to the "attacks" made by the Plaintiff. To the extent that the comments went outside the bound of proper answer to the "attacks", it could be said that the comments contained irrelevant matters which could not be the subject matter qualified privilege.

29. Although logically the issue of the accuracy of the reporting, the issue of the relevance of the matters set out in the comments as a reply to the attacks and the issue of malice may be considered as separate issues, the better view of the law would appear to be that the issues such as whether the publication on a privilege occasion contained irrelevant matters or whether the publication was a fair and accurate reporting of the privileged publication should be treated as factors to be taken into consideration in deciding whether the Defendant was actuated by express malice. (See Gatley on Libel 8th edition paragraph 582).

30. The Plaintiff sought to argue that the Defendant was not entitled to rely on qualified privilege because the Defendant's publication was actuated by express malice. In view of the fact that the Plaintiff was not legally represented in the trial, before the trial began I had pointed out to the Plaintiff that he had not pleaded express malice and as such would not be entitled to adduce evidence on express malice or rely on malice to defeat the defence of fair comments and qualified privilege. I had offered to the Plaintiff an adjournment for him to consider whether he should amend his pleading and to seek legal advice. However the Plaintiff declined both to amend his pleading or to take the opportunity to seek legal advice or to consider his position. In his final submission, the Plaintiff again sought to argue that the Defendant should not be entitled to rely on the defence of fair comment and qualified privilege. He made specific reference to the libel pleaded in paragraph 5(c) of the Statement of Claim and pointed out the fact that in the statement made by Mr Lee, he had not accused the Plaintiff of any plagiarising whilst the Defendant had reported Mr Lee's comments in the way complained of. Although the Plaintiff asked for leave to amend his Statement of Claim to plead the particulars of special damages in the course of his final submission, he told me that he was not going to amend to seek to plead malice or punitive damage. In these circumstances, I would hold that it was not open to the Plaintiff to rely on any allegation of malice.

31. In any event, concerning the passage complained of in paragraph 5(c) of the Statement of Claim, Miss Ma's evidence was that she had reproduced in the second part of the article what Mr Lee told her accurately. It follows from her evidence that Mr Lee did say to her that in assessing the academic standard of a lecturer, his academic publications should be assessed to see if there contains original research and creativeness, not plagiarising. This would obviously be at variance with what was stated in the statement of Mr Lee who said in his statement that what he said was that in the process of substantiation, apart from publications, the originality and contribution of the works are also considered: e.g. if a book which was just a compilation and abstract of what other predecessors have written, it would not be taken as having great contribution." The significant difference lie in the words “（...把前人著作抄錄摘要成書）” which Mr Lee said were the words he used, and the words used in the article. The Chinese words “（抄襲成書）” used had certain similarities however the difference would be of great significance to an academic like the Plaintiff. If Mr Lee did tell Miss Ma what he alleged in his statement, I am of the view that the inaccuracy was a significant discrepancy and the article could not be said to be a fair and accurate reporting of the comments of Mr Lee. However having seen Miss Ma giving evidence I am satisfied that Miss Ma had accurately reproduced what she heard from Mr Lee at the time. I see no reason for Miss Ma to distort Mr Lee's words. It may well be the case that owing to the fact things were occurring rather quickly, Mr Lee was not as careful in his choice of words as he wanted to when he responded to the verbal interview of Miss Ma.

32. I am thus of the view that the second part of the article was a fair and accurate report of the comments of Mr Lee and in the absence of actual malice, the Plaintiff's claim on libel fails.

33. In relation to the libel complained of in paragraph 5(a) of the Statement of Claim, the Defendant further relied on the defence that (1) the statement complained of was not defamatory and (2) the statement was a fair comment and reliance was also made on Section 27 of the Defamation Ordinance. I am of the view that the statement was in fact defamatory in that it sought to say that the Plaintiff acted unfairly in his dealing with the matter (of his dismissal) and the Plaintiff did not act in a responsible manner and that the Plaintiff had sought to side step his responsibility for his own dismissal by making his dismissal a political issue. However I am of the view that the defence of fair comment was made out in that in the Plaintiff's letter, he did suggest that his dismissal was for reasons of his political belief and the department and his colleagues did not subscribe to the same belief and that he did not mention anything which could be said to be his own responsibility for his own dismissal. Furthermore the subject matter commented on was one of the public interest.

34. In relation to the libel complained of in paragraph 5(b), the Defendant also raised the defence that the same was not defamatory. I would consider that the context of this statement was different from the one complained of in paragraph 3. The one complained of in paragraph 3 was obviously made in the context of the Plaintiff's complaints that the assessment on him was unfair. However what was said here was a positive statement that there were individuals (of which the Plaintiff was reasonably understood to be one) who were below the requisite standard. I am thus of the view that the statement was defamatory and this line of defence fails.

35. In relation to the libel pleaded in paragraph 5(c) of the Statement of Claim, the Defendant relied on the further defences that the words complained of were not defamatory, and that they were not referring to the Plaintiff. In order to see whether the passage complained of is defamatory, it is necessary to consider the context in which the passage appeared in the article. The relevant part of the article read:

"The said lecturer continued to say that in assessing the academic standard of a lecturer, his academic publications should be assessed to see if there contains original research and creativeness. Not plagiarizing. Also he said, the works must be published in chosen academic journals. There are academic works by individual lecturers of the Chinese University which are not of much contribution in terms of inspiring quality and addition of knowledge."

The libel alleged in paragraph 5(c) was reproduced in italics. It could be seen that in that particular sentence, the lecturer was merely stating what was the criteria for the assessment of the works of any given lecturer. Thus the words complained of could not be said to be referring to the Plaintiff. Even if one would have the impression that he was talking in terms of the Plaintiff's work being assessed, what the sentence complained of had said was merely that the Plaintiff's works should be assessed to see if they contained original research and creativeness and were not merely plagiaries. I could not see how this sentence complained of could be read as insinuating that the Plaintiff's works were plagiaries. It may well be the case that in the second sentence that followed the one complained of it might be suggested that the Plaintiff's works were not of much contribution in terms of inspiring quality and addition of knowledge. However there was no allegation that this sentence was libellous. At any rate, I do not think that reading this sentence together with the one complained of one could reasonably have the understanding that it had been alleged that the Plaintiff's works were plagiaries. In the circumstances, I am also of the view that the Defendant was right in its contention that the passage complained of was not defamatory.

36. In relation to the libel pleaded in paragraph 5(d) of the Statement of Claim, the Defendant further relied on the defences that the words were not defamatory, and in any event were fair comments. I am of the view that the words were defamatory in that they suggested that the Plaintiff was the sort of person who did not reflect on his own responsibility and was thus an irresponsible person. However in the light of the Plaintiff's behaviour as reflected by the contents of the letter he had written for the Defendant's publication, I am of the view that the defence of fair comment was made out. The words complained of were clearly comments on the Plaintiff's letter and in the said letter, the Plaintiff had made a lot of criticism and had expressed dissatisfaction with the conducts of the Department, the shortfalls in the assessment system, and the unfair treatment he received from Mr Comstock but without any reflection on whether he deserved such assessment or whether his employment was terminated on proper grounds. As I have remarked earlier, the subject matter in this case was of public interest.

37. As I am of the view that the defence of qualified privilege was made out, the Plaintiff's claim fails.

38. In the light of the conclusion I have reached on liability, it is not necessary for me to deal with the question of quantum. However in line with the practice in personal injuries cases, I will also endeavour to state my views on the quantum in the event that an appeal court should hold that I am wrong on my views on liability. Thus in approaching the question of quantum, I will assume that all statements complained of were defamatory in the manner alleged by the Plaintiff and all defences fail. However I do not assume that malice had been proved because in my view it is not open to the Plaintiff to rely on express malice and in any event I am of the view that there was no evidence of express malice.

39. Although the Plaintiff had declined an invitation to amend his Statement of Claim to plead the particulars of special damages at the commencement of the trial, he did make an application to amend the Statement of Claim to plead the particulars of the special damages in his final submission. In exercise of my discretion, I granted him leave to amend and I also granted him an adjournment to enable him to properly formulate his intended amendment. I would however note that this amendment had caused the trial to be lengthened by half a day and so in any event, I hold that the cost for this half day should be born by the Plaintiff.

40. By his amendment, the Plaintiff claimed the amount of $450,000 as loss suffered by him for being unemployed for 7 months and 7 days, and the amount of $500,000 being the loss he suffered as a result of not being able to pursue a career in journalism, and a further amount of $396,000 being the loss of income he suffered because he was earning some $33,300 per month less than what he could earn when he was a lecturer in the Chinese University. The Plaintiff gave evidence that since his employment was terminated by the Chinese University, he was without any full time job between 1st August 1994 to 8th March, 1995 and hence his claim for loss of income for 7 months and 7 days. The Plaintiff gave evidence that he had written 25 application letters for teaching job to various tertiary institutions but his applications were all unsuccessful. He was merely granted an interview by one of such institutions but that application was unsuccessful. The institutions he applied to were not just limited to those in Hong Kong but also included those in Taiwan and Singapore. Since 8th March, 1995, the Plaintiff obtained employment as a publishing manager but his current salary was only $33,700 which was much lower than what he earned as a lecturer in the Chinese University.

41. I reject the Plaintiff's claim for special damages. In order to succeed, the Plaintiff would have to show that his loss was a result of the Defendant's libel. There was simply no evidence to suggest that any of the loss alleged to have been suffered by the Plaintiff was caused by the Defendant's publication of and concerning the Plaintiff. There was simply no evidence that any of the persons responsible for considering the Plaintiff's applications had ever read the libel published by the Defendant. There was no suggestion that the Defendant's newspaper had any circulation in Taiwan or in Singapore. Yet the fact that the Plaintiff's application to institutions there were similarly unsuccessful would appear to indicate that there may be other good reasons for the Plaintiff's application not being accepted.

42. In relation to the general damage, I have to take into account the seriousness of the libel and that the Defendant was a newspaper with a wide circulation in Hong Kong although there was no specific evidence before me as to how wide the circulation of the Defendant's newspaper was at any time. I have also had to take into account the fact that the Defendant had never offered to apologise and had defended the action to the bitter end, albeit justification was not relied on as a defence. I am however not satisfied that the Defendant published the libel out of spike or that there was any ill motive to injure the Plaintiff. The Plaintiff also gave evidence on the embarrassment and inconvenience he suffered since the publication of the libel. He told me that when he passed through the campus of the University, his students and colleagues would appear to be trying to avoid him. I do not however think that this was necessarily the result of the libel. The fact that the Plaintiff took a particular political view must be widely known to his students and colleagues and the fact that the Plaintiff's contract would not be renewed would also be widely known. Further more as the Plaintiff would so assert in his letter to the Defendant, the Plaintiff held very different views from those held by his colleagues over many issues and there were thus good reasons also for his colleagues not to be ready to mix or identify with him. However I cannot discount the fact that some of the Plaintiff's colleagues and students might have been affected by the Defendant's publication. To make his point further, the Plaintiff further claimed that even now he was not being respected. He produced a letter (exhibit P-1) to show that an author just refused to co-operate with him and he claimed that as he was a publishing manager, it was very unusual that authors would refuse to co-operate with him. He therefore asked me to infer that this unusual behaviour on the part of the author must be due to the Defendant's publication. Having gone through the letter (P-1) it is plain that the author refused to work with the Plaintiff for reasons relating to the personal behaviour of the Plaintiff and had nothing to do with the Defendant's publication.

43. Guided by the principle re-affirmed by the Court of Appeal in Cheung Ng Sheong Steven v. Eastern Publisher Limited (Civil Appeal No. 198 of 1994) that the general damages awarded should be compensatory and designed to assuage the Plaintiff's hurt feelings and loss of dignity and also to provide him a vindication of his character, I would assess the general damages at $80,000. In arriving at this figure of $80,000 I have also taken into account the award made in previous cases: Melvin Wong v. Jockey Daily News Ltd (H.C.A.2469/85) where $75,000 was awarded; Kazim Wilson Tuet Wai Sin v. Nurudeen Ma Kwong Ming (H.C.A.1537/85) where $50,000 was awarded; Kwing Shou Wendhal Ting v. Parke, Hutcheon & SCMP (H.C.A.2229/85) where $125,000 was awarded; Kan Chung Nin v. Li Kwong Ming (H.C.A.3199/85) where $65,000 was awarded; Yu Kwong Chiu, Ma Yee Fun & Lam Chi Kwong v. Consolidated Newspapers (H.C.A.253/86) where the amounts of $120,000, $70,000 and & $70,000 were respectively awarded to the three plaintiffs; Ming Kee Manufactory Ltd v. Man Shing Electrical Manufactory Ltd (H.C.A.4583/91) where the amount of $50,000 was awarded. Of course, each of the libel in the previous cases was of a different nature and none of them was on all fours with those in the present case. However they would serve as an useful guideline as to the range for which the amount of damages would be appropriate.

44. To conclude the Plaintiff's claim is dismissed with cost.