ORIENTAL DAILY PUBLISHER LTD. v. NEXT MAGAZINE PUBLISHING LTD. AND OTHERS

CACV 261/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 261 OF 1998

(ON APPEAL FROM HCA 9802 OF 1996)

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J U D G M E N T

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Liu, JA:

1. The plaintiff was the publisher of the Oriental Daily News. The 1st defendant was the publisher of a weekly magazine called "The Next Magazine". On 1 August 1996, a Legislative Councillor, Mr Cheng Ka-fu (Cheng) made a statement (the Speech) to a Legislative Council Panel Meeting on Recreation and Culture. From 4 August to 9 August 1996, the plaintiff published 11 articles about the Speech. On 9 August 1996, the 1st defendant published at p. 87 of the 325th issue of the Next Magazine an article (the Article). The plaintiff commenced a libel action on the Article for damages against the 1st defendant as publisher, the 2nd defendant as editor-in-chief and the 3rd and the 4th defendants as printers of the Next Magazine. The plaintiff's action was dismissed by Deputy Judge Chung with an order nisi for costs. The 4th defendant was further found by the judge not to be a printer of the Article. The plaintiff feels aggrieved by the decision from which it appeals against all but the 4th defendants.

2. The proceedings before the judge and in this court on appeal were conducted in English. To all intents and purposes, by agreement we need read only the relevant publications in Chinese. It is, therefore, unavoidable that this has to be a truly bilingual judgment.

3. The Speech of Cheng made on 1 August 1996 was as follows:

"........主席，我只係想講一啲意見俾番文康廣播科，佢阿文康廣播科英文就加左個「Sport」字啦吓，即係今次又因應今次李麗珊又贏左，我覺得有兩樣嘢我想Er希望政府諗一諗，我意見就係話呢，最近太多商業機構走出嚟話，即係送獎品俾啊李麗珊，我覺得呢個係唔健康嘅，即係，即係Er對李麗珊當然係好啦，對未來運動員當然有個好似有個目標啦，但係政府呢，應該首先要做一個帶領，就係有一個獎勵計劃，因為第二啲其他國家，可能香港一路都無乜點金牌攞過呀，其他國家一路都話攞到金牌有幾多獎，有幾多譬如獎學金呀、幾多獎品呀，但係政府到依家呢一刻都未表態，咁就有啲商業機構就飛身撲身出嚟呢，就話送呢樣送嗰樣，咁日後第二個攞金牌呢，肯定無李麗珊咁旺啦，即係一定係咁！但政府呢方面，我覺得佢應該要即係坐低落嚟考慮一下，對於優越嘅運動員嘅獎勵計劃，呢個其實好重要。第二就係嗰個，即係我哋覺得依家有左斷層呀，即係基礎嘅培訓，嚟去俾我哋嘅Er小朋友由開始點樣俾人哋覺得佢有潛質，帶領到佢去到體院去做一個傑出運動員呢，呢個步驟係香港依家完全係斷左架......"

4. For my deliberation, it is quite unnecessary to set out the 11 articles published by the plaintiff of and concerning the Speech between 4 August to 9 August 1996.

5. The Article published on 9 August 1996 by the 1st defendant in the 325th Issue of the Next Magazine at p. 87 read:

"富仔得罪某報被狂砌

此種恩怨，還有一單。民主黨之鄭家富在立法局評論商業機構捐贈李麗珊，指這做法「不健康」，某報捉住此事大做文章，四出訪問運動員同明星，狂砌富仔。

某報如此兇狠，皆因與富仔有段恩怨。早排富仔猛鋤報紙之鹹濕版，提過某報之名，該報興過辣雞，指富仔有心與它為敵，背後必有陰謀。

它指之陰謀，乃富仔與民主黨一夥，已全被壹傳媒集團買起，對付某報。

富仔實在無辜，當日他只說香港政府不支持體育，單靠商業機構捐助，乃不健康現象，怎知被某報捉住「不健康」三個字大砌，人家有傳媒在手，富仔有理亦說不清。"

6. Alongside the Article was a published photograph with a caption which read:

"富仔談李麗珊，被某報發砲狂轟。"

7. The principal grounds of appeal are two:

(1) (a) The judge was wrong to ascribe to the word "砌", albeit literally or colloquially susceptible of both of the meanings of "framing" and "criticising", the meaning of "criticising" in the context of the Article;

(b) The five reasons given by the judge for his conclusion in (a) were less than cogent, and

(c) The issues of justification and fair comment considered by the judge on the basis of the meaning he ascribed to "砌" therefore lacked any valid basis.

(2) Alternatively, the judge was wrong not to find the Article "in its entirety" nonetheless contained implications that the plaintiff falsely reported the Speech of Cheng and/or deliberately twisted his words in order to attack him.

8. As to (2), the Amended Statement of Claim contained the following averments:

"8. The natural and ordinary meaning of the said words in (the Speech) meant and were understood to mean that the Plaintiff:-

(i) falsely reported the comments of Mr Cheng Ka Fu on the provision of gifts by commercial enterprises to Miss Lee Lai Shan;

(ii) deliberately twisted the words of Mr Cheng Ka Fu and framed him in order to attack him; and

(iii) did the above with malice and purely as an act of vengence against a person who had been critical of the Plaintiff.

9. Further and/or alternatively, the words set out in (the speech) bore and were understood to bear the following meanings by way of innuendo:-

(i) the Plaintiff is an irresponsible and unreliable newspaper publisher;

(ii) the Plaintiff is a dishonest and unrighteous newspaper publisher;

(iii) the Plaintiff's conduct is unbefitting as a newspaper publisher.

PARTICLARS UNDER ORDER 82 RULE 3(1)

(a) the public expects a newspaper publisher to truly and accurately report comments from any person; and

(b) the public expects a newspaper publisher not to report news or to express opinions under the motivation of malice, vengence, prejudice, or ulterior motives."

9. The particulars were not taken by the judge as true or legal innuendoes.

10. On its principal grounds of appeal, the plaintiff made two complaints, "Falsely Reporting" and "Deliberately Twisting", in terms of paragraph 8 against the defendants for the words published in the Article (the "Falsely Reporting" complaint and the "Deliberately Twisting" complaint). It was so argued before the judge. The former complaint was simply made on an allegation that the plaintiff was accused of falsely reporting the Speech. In the latter complaint, the Article was alleged to comprise largely words capable of being understood as charging the plaintiff with, inter alia, misinterpreting the Speech, attributing the wrong intent to the speaker, quoting a phrase "不健康" in the Speech out of context (this is the "Deliberately Twisting" dealt with in the judgment), misreporting the text of the Speech etc. This list of innuendoes is by no means exhaustive, but it will hopefully serve to show how a defamatory meaning of "Falsely Reporting" may be ascribed to what on the face would appear to be merely a "Deliberately Twisting" complaint. What might reasonably be read into the "Deliberately Twisting" complaint had been pleaded and was argued at the trial as having conveyed also a message of "Falsely Reporting". As I shall endeavour to illustrate later, the judge would seem to have drawn no distinction between "Falsely Reporting" and "Deliberately Twisting" or had otherwise wholly overlooked "Falsely Reporting" as a separate and independent complaint. He isolated for his consideration the quoting out of context of "不健康", but that is not "Falsely Reporting" in any sense. Consequently, the judge did not consider specifically or at all the "Falsely Reporting" complaint.

11. This appeal can be disposed of within a narrow ambit. Towards that end, it is assumed that within the "Deliberately Twisting" complaint, nothing is capable of imputing a meaning of "Falsely Reporting". It is unnecessary, for my present purposes, to consider the submission of Mr Cheng Huan that in the "Deliberately Twisting" complaint there are words reasonably susceptible of being understood as meaning misreporting the Speech. Should this court choose or need to entertain also this submission of Mr Cheng Huan, the issues in this appeal would become unnecessarily more extended. For my present purposes and what, I hope, can be better illustrated as the shortfall in the judgment, I would treat the "Deliberating Twisting" complaint and the "Falsely Reporting" complaint in the Article as mutually exclusive, but it is not to say that I have accepted them as being so.

12. First, I will deal with the meaning of the word "砌". The plaintiff's case is that "砌", on its own and in the context of the Article, means "to attack" or to use another Chinese character "屈". But the 1st, 2nd and 3rd defendants (the defendants) maintain that it simply connotes "to criticise". In a libel action, the question to be decided is what message is conveyed by the words complained of to the ordinary man. See Lewis v. Daily Telegraph Limited, [1964] AC 324 at p. 358, per Lord Reid. Quite often, it is a matter of "first impression". Slim v. Daily Telegraph Limited, [1968] 2QB 157 at p. 171G, per Diplock, LJ. A trial judge has to decide whether the words complained of are reasonably capable of bearing a defamatory meaning and it will be left to the jury to decide, as a question of fact, what the words mean and whether that meaning is libellous. An ordinary reader may legitimately read, so to speak, between the lines, but it is not to be an over-elaborate analysis. If the words complained of are reasonably susceptible of a number of meanings, one defamatory and others innocent, it should still go to the jury for deciding the "right" meaning, that is to say the jury has to pick out the "single" natural and ordinary meaning of those words. See Slim v. Daily Telegraph Limited, supra at p. 174E/F, per Diplock LJ and Charleston v. News Group Newspapers Limited, [1995] 2 AC 65 at p. 71G, per Lord Bridge.

13. The judge in this case found that Cheng was making a speech to a meeting of the Legislative Council Panel, that Cheng did not say it was wrong for athletics to be showered with or to receive awards or prizes, that at the material time the plaintiff fully and properly understood the Speech, particularly the part relating to Cheng's use of the phrase "不健康" in its proper context, and the true meaning of that phrase he used, that the plaintiff harboured a pre-existing grudge against Cheng for his earlier condemnation of obscene publications, that the plaintiff was hostile to Cheng, that a decision had, since about 4 August 1996, been taken by the plaintiff through its editorial team to launch a whole scale attack on Cheng and that the plaintiff attacked Cheng by quoting his said phrase "不健康" out of context and attributing to it the meanings set out in the plaintiff's articles. The judge concluded: "I agree with the defendants' submissions that on a fair reading of the whole of the defendants' article, there is only one 'sting' (or main charge or gist), namely, the plaintiff quoted the phrase "不健康" in Cheng's statement out of context and did so by reason of its pre-existing grudge against Cheng ........ All the other statements in the defendants' article were directed towards that 'sting' and did not add anything further". (Emphasis supplied). The sheet-anchor of the judge's determination was the "Deliberately Twisting" complaint as pleaded in paragraph 8(ii) of the Amended Statement of Claim viz. "the plaintiff (was said to have) deliberately twisted the words of Mr Cheng Ka Fu ........... in order to attack him."

14. Mr Yu, leading counsel for the defendants, submits that even if "砌" were to be found as a fact to bear the meaning of "to frame" or "屈" in terms of "deliberately twisted ...... and framed", the defendants would in any event escape liability, on the above findings of the judge, in their defences of justification and fair comment. In the judge's findings, deliberately twisting the words of Cheng is what the plaintiff in fact did. For like purposes and what I am about to explain, I also assume that no ground exists for interfering with the judge's findings or overturning the meaning ascribed by him to "砌" in the discharge of his jury function.

15. Mr Cheng Huan is staunchly critical of the judge's finding of the "single" meaning of "砌" in the context of the Article. Counsel views as unsound each of the five reasons given by the judge in support of the meaning he found. In the way I propose to resolve this appeal, it is not necessary to deal with or express any view on these criticisms. In fact, it would not be advisable to do so. These criticisms of counsel are set out at pages 7, 8 and 9 of his skeleton argument.

16. Lastly, I turn to the plaintiff's remaining substantive complaint pleaded in paragraph 8(i) of the Amended Statement of Claim which is repeated below:

"8. The natural and ordinary meaning of the said words (in the speech) meant and were understood to mean that the Plaintiff:-

(i) falsely reported the comments of Mr Cheng Ka Fu on the provision of gifts by commercial enterprises to Miss Lee Lai Shan"

17. The judge found as his "single" meaning of "砌" "to criticise". On the assumptions I have made, I need only focus on the plaintiff's alternative reliance on the Article in its entirety for its "Falsely Reporting" complaint. In order to feel the full impact of the entire Article, the following words therein should not be ignored:

"狂砌", "大做文章，四出訪問運動員同明星，狂砌富仔。", "捉住「不健康」三個字大砌", "狂砌" and "實在無辜".

18. The law is well settled. It is for the judge to decide whether the Article in its entirety was reasonably capable of the alleged "Falsely Reporting" defamatory meaning. Assuming the Article as being susceptible of innocent meanings, if it was also reasonably capable of a libellous one, the judge must deal with it as a question of fact in the discharge of his jury function by determining which of the meanings the article actually bore. This court is not in a position to decide these judge and jury questions. What is, in my approach, required of this court is to consider whether there exists any potential arguability in the "Falsely Reporting" complaint so that the judge would have to exercise his double function as judge and jury.

19. "狂砌" would suggest irresponsibility. "捉住此事大做文章" would convey an impression of a wanton embellishment of the event, "此事". The reference to the pre-existing grudge and hostility in the Article would imply some determination or inclination to go any length to attack Cheng by even misreporting the Speech. "富仔實在無辜" is capable of being understood as vindicating Cheng in a misreporting to frame him. On these and other words in the Article, I have tried to express no more than a tentative view. I have read and re-read the Article many times and come to the view that in its entirety it is potentially capable of meaning misreporting the text of the Speech. On any view, the "Falsely Reporting" complaint was part of the plaintiff's pleaded and argued case, and it had to be adjudicated.

20. Mr Cheng Huan and Mr Pow for the plaintiff submit that its reporting of the Speech was substantially accurate in terms of syntax and sentence construction and that the judge should have dealt with the "Falsely Reporting" complaint. There seems to be much to be said for this contention. If, as I have held, the "False Reporting" complaint is potentially arguable, the judge should have proceeded to decide whether the Article was reasonably capable of, among other meanings, such a meaning defamatory of the plaintiff and, if the answer be positive, whether as a matter of fact the meaning the Article actually bore was so libellous as alleged. In my view, the "Falsely Reporting" complaint as pleaded potentially calls for an exercise of the judge's dual functions, both as judge and jury. The judge considered exclusively one "sting". Within or without the "Deliberately Twisting" complaint, the "Falsely Reporting" complaint is arguably discrete. It was part of the pleaded case of the plaintiff, and the judge failed to deal with the "Falsely Reporting" issue.

21. Returning to the meaning of "砌", it should not have been considered in isolation by reference to the "Deliberately Twisting" complaint alone. The judge's determination of the meaning of "砌" for the reasons he gave and the relevance of justification and fair comment would all have to be rehashed having regard to the "Falsely Reporting" complaint.

22. The trial took seven days. This court is only presented with rarified submissions, unaided by all the material evidence or documents. This case cannot, in my view, avoid a re-trial and should be re-tried by another judge, not the judge who had focussed on that one "sting". After all, impression, if not first impression, is a matter of considerable importance in ascertaining the meaning of the words in the Article and the Article itself. For all these reasons and the order for re-trial I propose to make, it would be undesirable to deal with the many issues in this case more specifically. Save for the matters necessary for supporting the order for a re-trial, which have been given a potential overview, I should not be taken as having expressed any concluded view so as to make the task of the judge in the re-trial more intolerable.

23. I would allow the appeal, set aside the order made by the judge and order a re-trial of this action by another judge. I would make an order nisi that the defendants are to bear the costs of this appeal and that the costs of the trial are to be reserved for the judge in the re-trial.

Leong, J.A.:

24. I agree.

Pang, J.:

25. I also agree.