XCHRX ORIENTAL PRESS GROUP LTD. AND ANOTHER v. NEXT MAGAZINE PUBLISHING LTD. AND OTHERS

HCA 13058/1995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. OF 13058 OF 1995

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REASONS FOR DECISION

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1. The Plaintiffs' claim against the Defendants involved an alleged defamatory article (the 1st article) published by the Defendants on 15th December 1995. The present action was commenced on the same day by the Plaintiffs.

2. The Defendants are alleged to have published another defamatory article (the 2nd article) on 31st May 1996. It is fair to say that the 2nd article, in so far as the alleged offending part is concerned, is related to the 1st article in that both articles refer to the Plaintiffs as being controlled by a fugitive, to use a term adopted by the Plaintiffs.

3. The Plaintiffs now wish to amend the reply by introducing for the first time the 2nd article which is already the subject matter of another High Court action, namely HCA No. 3831 of 1997 involving also the Plaintiffs and the Defendants.

4. The Plaintiffs seek to introduce the 2nd article to show that the Defendants were actually actuated by malice in publishing the 1st article.

5. For the purpose of the present application, I must accept the Plaintiffs' submission that the 2nd article is relevant as it is probative to the issues involved in this dispute. On other hand, I must also bear in mind the consequence of allowing the proposed amendment in the proper exercise of my discretion.

6. If the proposed amendment is allowed, the court must resolve in relation to the 2nd article all the issues involved in a defamation action before the court can begin to consider the relevance and the effect of the 2nd article on the 1st article.

7. That being the case, I think, and Mr. Pow on behalf of the Plaintiffs also concedes that the court would have to make findings of facts in relation to the 2nd article which is the subject matter of the HCA No. 3831 of 1997.

8. Whilst the doctrine of res judicata may not strictly applies when the actions are to be tried by a judge and a jury, it is clearly undesirable for the same issues to have to be canvassed in two separate actions and to that extent it may constitute an oppression and/or unfairness to the Defendants in that the Defendants would have to be subject to more than one trial over the same issues. I think that really is the only oppression and/or prejudice that the Defendants may face should the proposed amendment be allowed.

9. I am also mindful of the fact that the exercise of my discretion involves the balancing of the conflicting interest of the parties. In the light of the allegation by the Plaintiffs, and if their argument is correct, the 2nd article is highly relevant. The Plaintiffs should be allowed to introduce it to prove the case in a manner that they consider to be most advantage to them. To prevent the Plaintiffs from adducing the 2nd article as evidence will undermine the Plaintiffs' case and, in my view, will have an effect which is far more serious than the possible oppression and/or unfairness to the Defendant.

10. In the light on the background of this matter, the Defendant is clearly prepared to meet the Plaintiffs' allegation in its entirety. In the exercise of my discretion, I am also mindful of the rule that a party should not be prevented from introducing a relevant matter on any issue unless it is clearly appropriate to do so.

11. Despite the delay of almost four years since the 2nd article appeared and that the Plaintiffs had taken no action until recently, and despite the unchallenged suggestion that the substantial delay had not been explained, on the facts of the present case, I am persuaded that it is a proper exercise of my discretion to allow the Plaintiffs' application to amend the reply by introducing the 2nd article in this proceeding. I must emphasise that on an application of this nature, each case must be considered on its own merit in the balancing exercise of the conflicting interest of the parties.

12. That being the case the Plaintiffs' application is allowed and I order that paragraph 7(ii) of the draft reply can be added back to paragraph 7 of the reply for which leave to amend had been granted.