YAM CHI MING STEPHEN v. SING PAO NEWSPAPER CO LTD

HCA 99/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 99 OF 2005

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J U D G M E N T

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Background

1.  This is an action against a newspaper for damages for defamation.  The Plaintiff is a practising barrister and a qualified accountant with some prominence in the social and political arena in Hong Kong and in the mainland.  He has held a number of public appointments, including membership in the Chief Executive Election Committee.  It is not with disrespect that I am not setting out all his credentials, but it is unnecessary and inappropriate to do so.  The Defendant is the proprietor and publisher of an established local Chinese newspaper with a history of sixty-six years.

2.  The circumstances leading to the Plaintiff’s complaint of defamation arose as follows.  The Plaintiff was a former colleague of Mr Chan Wing Yiu, an associate professor of the Chinese University of Hong Kong, who was charged with the offence of defrauding the university of housing allowance.  The Plaintiff was instructed to represent Mr Chan at the hearing before HH Judge Sweeney in the District Court on 2 December 2004.  Mr Chan decided to plead guilty to the charge and both the Plaintiff and Mr Chan anticipated a suspended sentence.  The Plaintiff saw Mr Chan in the detention cell that morning before the hearing commenced.  Mr Chan told the Plaintiff that he would wish to apply for bail pending appeal should the judge pass an immediate custodial sentence.  Upon Mr Chan pleading guilty, HH Judge Sweeney passed an immediate custodial sentence of four months.  After confirming with Mr Chan his instruction to apply for bail pending appeal, the Plaintiff made the bail application immediately.  The District Judge enquired if the prosecutor had any objection.  Ms Winnie Ho, Senior Government Counsel of Department of Justice, confirmed that she had no objection.  HH Judge Sweeney then ordered a stay of execution of the sentence and extended Mr Chan’s bail on similar terms.  The Plaintiff and his instructing solicitor left, while Mr Chan stayed behind to process the bail documentation.  That was about 11:15 am.

3.  A number of newspaper reporters, including Miss Ng Chui Ling (吳翠玲) of the Defendant, stayed in the Court room and chatted about the propriety of granting Mr Chan bail by the District Judge.  One of the reporters pointed out that District Judges had no jurisdiction to grant bail pending appeal.  Presumably that reporter was from Sing Tao Daily News as it was reported in Sing Tao Daily News on the following day that its reporter had raised that question with the Judiciary. 

4.  Shortly after the Plaintiff had returned to his chambers, Ms Winnie Ho telephoned him and asked him if he knew that District Judges had no jurisdiction to grant bail pending appeal.  He told Ms Winnie Ho that he was not aware of that and asked Ms Winnie Ho to send him some authorities, which Ms Winnie Ho did.  Subsequently after that telephone conversation, he received a number of telephone calls from reporters enquiring him about the bail application.  He did not ascertain their identities.  He replied them politely and said that he would apply for bail for Mr Chan in the High Court and that it would not be a big problem as the District Judge was of the opinion that bail was appropriate.  Then he telephoned his instructing solicitor who was on his way back to his office in Tuen Mun at the time.  His instructing solicitor told the Plaintiff that he was also not aware of the District Judge’s lack of jurisdiction to grant bail.  Later, the Plaintiff was informed by a staff of the District Court that the Court would be re-convened to revoke Mr Chan’s bail.  The Plaintiff decided not to appear in the bail proceedings as he had a conference to attend to and as he could not appear in the absence of his instructing solicitor who could not make his way back to the District Court from Tuen Mun.

5.  It was not known how it was that HH Judge Sweeney became aware of his lack of jurisdiction to grant bail.  Anyway, one and half hours after granting the bail, the Court re-convened.  Ms Winnie Ho appeared as before for the prosecution, but neither the Plaintiff nor his instructing solicitor appeared for Mr Chan who was unrepresented.  Probably, Mr Chan was detained before he could have completed the documentation and left.  HH Judge Sweeney revoked his bail order. 

6.  The above background circumstances are not in dispute.  The Plaintiff reiterated in his evidence that he had no knowledge of the District Judge’s lack of jurisdiction to grant bail pending appeal.  He referred to his letters from Ms Winnie Ho and from his instructing solicitor confirming the above factual background as evidence in support of this contention.  Mr Chiu, counsel for the Defendant, did not seek to dispute this aspect of the Plaintiff’s evidence.  He was contented to base the Defendant’s defence on the assumption that the Plaintiff had no knowledge of the District Judge’s lack of jurisdiction to grant bail.  I find as a fact that the Plaintiff did not know of the District Judge’s lack of jurisdiction.  This is one of the facts which the Plaintiff urged on me and it is a fact which is favourable to the Plaintiff’s case.  What is in dispute was the telephone conversation between the Plaintiff and Ms Lau Wai Fong (劉蕙芳), a former deputy report team leader of the Defendant, which took place at about 3 pm that afternoon.

7.  It would be convenient to sum up the defence case at this stage.  According to Miss Ng, she was in the Court throughout the hearing when Mr Chan was sentenced.  She had about five years’ experience as a court reporter.  She learned from her experience in court reporting that District Judges do not have jurisdiction to grant bail pending appeal.  She was alerted by the bail application.  During the Court adjournment, she and the other six newspapers reporters discussed about Mr Chan’s bail and waited for the Court to re-convene.  The Court was re-convened at about 12:30 and HH Judge Sweeney revoked Mr Chan’s bail. 

8.  Between 1:30 pm and 2 pm that day, Miss Ng made a report of the cases that she heard to Ms Lau.  She drew Ms Lau’s attention to Mr Chan’s case, including the bail application and the subsequent revocation of bail.  At about 3 pm, Ms Lau telephoned the Plaintiff on his mobile phone and conducted a telephone interview.  She asked the Plaintiff whether he had knowledge prior to making the bail application that a District Judge had no jurisdiction to grant bail pending appeal.  The Plaintiff replied in the affirmative.  Then she asked the Plaintiff why he made the bail application since he knew that a District Judge had no jurisdiction to grant bail.  The Plaintiff replied that it was because the District Judge and the Department of Justice had no objection.  Ms Lau asked the Plaintiff if he knew that the bail had been revoked.  The Plaintiff replied that he had been so informed.  Ms Lau further asked if the Plaintiff had appeared in Court to deal with the bail revocation.  The Plaintiff replied that he did not as he had to attend a case conference and that the issue about bail was a trivial matter and he would make a proper bail application in the High Court for Mr Chan as soon as possible.

9.  The Plaintiff denied having had such a conversation with Ms Lau or having told any reporter that he knew the District Judge had no jurisdiction to grant bail pending appeal prior to making the bail application.  His evidence was that he received a number of telephone enquiries from reporters soon after his telephone conversation with Ms Winnie Ho.  Finally, he received a call from a staff of District Court requesting him to appear in Court but he declined as he had a case conference.  After that he received no other telephone call about that case until some time between 2 pm and 3 pm.  The caller enquired him what he would do as the bail had been revoked.  He replied that there was no problem and he would apply for bail in the High Court.

10.  On the next day, i.e. 3 December 2004, the Defendant published a report of the case containing the following statement:

“(1)   辯方懷疑「博大霧」求擔保外出 …  and

(2)  辯方大律師任枝明回應指，他是知道區院法官沒有批准保釋權的情況下，向主審法官施允義申請擔保被告陳榮耀(52 歲)，而且控方和法官均沒有反對其申請，他認為此乃「小事」… ”

The rest of the Plaintiff’s evidence was about the telephone calls he received from his fellow practitioners and friends about the above report, the request by the Bar Association for an explanation as to why he made the bail application knowing that the District Judge did not have jurisdiction to grant it, his correspondence with the Defendant and the anxiety he suffered as a result of the report.

The issues

11.  The Plaintiff’s action is based on libel and innuendo.  In respect of the libel, he alleges that the above-mentioned statement was defamatory of him and was untrue.  In respect of the innuendo, he alleges that the “First Defamatory Statement” was capable of an extended and defamatory meaning by way of innuendo as pleaded in paragraph 9 of his statement of claim.  But he did not identity what was the “First Defamatory Statement” in his statement of claim.

12.  In respect of the libel, the defence is that

(i)     the statement was not defamatory;

(ii)    if it was, it was a fair comment on a matter of public interest based on a fact (the “Base Fact) which was true; and

(iii)   if the Base Fact was untrue, the statement was published in circumstances covered by qualified privilege.

13.  In respect of the innuendo, Mr Chiu took a pleading point that the Plaintiff failed to plead such extrinsic fact as would support any extended meaning to be given to the First Defamatory Statement.

14.  This area of the law is very well settled.  Most of the background facts were not in dispute.  The publication of the report was not in dispute.  The single and most important factual dispute is whether the telephone conversation between Ms Lau and the Plaintiff took place and in the way as alleged by Ms Lau in her statement to the Defendant’s then solicitors dated 20 December 2004.  I shall therefore first turn to the evidence and make a finding of fact in respect of that telephone conversation.

The telephone conversation between Ms Lau and the Plaintiff

15.  There were only two parties to that telephone conversation, Ms Lau and the Plaintiff.  Unfortunately, Ms Lau died of a sudden disease in January 2005.  The Defendant could only rely on Ms Lau’s hearsay statement made to the Defendant’s then solicitors on 20 December 2004 (Exhibit D-1) as supported by the hearsay evidence of Miss Ng. 

16.  In the absence of Ms Lau, the credibility and weight to be attached to her statement could only be assessed in the light of all the background circumstances in which the statement was written.  Since publication of the report of Mr Chan’s case on 3 December 2004, the Plaintiff made no complaint to the Defendant until he received a letter dated 13 December 2004 from the Bar Association referring him to the report and demanding an explanation of his conduct in making the bail application.  The Plaintiff wrote promptly on 16 December 2004 to the Defendant demanding an apology and damages to be discussed with a threat of legal action.  It was under those circumstances, Ms Lau wrote the statement on 20 December 2004 to the Defendant’s then solicitor.  Later, in response to the enquiry from the Bar Association to Miss Ng, the Defendant forwarded Ms Lau’s statement and her handwritten note to the Bar Association on 14 January 2005.  Having set out the circumstances of Ms Lau’s making of the statement, I now turn to her evidence about the telephone conversation.

17.  Between 1:30 pm and 2 pm on 2 December 2004, Miss Ng reported to Ms Lau the two cases she heard in the District Court that morning and drew her attention to the Plaintiff’s bail application as she considered that application was unusual.  Presumably, Ms Lau also thought the case was newsworthy.  She telephoned the Plaintiff at about 3 pm.  It was also the Plaintiff’s evidence in chief that he received a telephone call from a reporter enquiring about the bail application at about 3 pm that day.  It is significant that at the time Ms Lau wrote the statement, there was no information from the Plaintiff that he received a telephone conversation at about 3 pm.  The Plaintiff did not mention this telephone conversation in his witness statement dated 18 May 2005 and the evidence only came out from his evidence in Court, by which time Ms Lau had long deceased.  This points to the truth at least in one aspect of her statement, namely that she had a telephone conversation with the Plaintiff. 

18.  Another even stronger indicator of the existence of that telephone interview was Ms Lau’s evidence that the Plaintiff told her that he did not attend the District Court to deal with the District Judge’s revocation of bail because he had to attend a case conference.  The Plaintiff only mentioned the case conference for the first time in his evidence in Court.  This fact had never been disclosed in any pre-trial documents or in his witness statement available to Ms Lau during her lifetime.  Thus, Ms Lau could not have had knowledge that the Plaintiff had a case conference unless the Plaintiff had told her during that telephone interview she alleged.

19.  Ms Lau also noted down the Plaintiff’s mobile phone number in her notes of the telephone conversation with the Plaintiff.  That phone number was correct but for one missing digit.  That may be a typographical error or a careless mistake.  It was not known that how she could have had the Plaintiff’s mobile phone number.  She could have obtained it from the Bar List.  The fact that she was able to give an almost correct telephone number adds veracity to her allegation of having had the telephone interview with the Plaintiff.

20.  According to Ms Lau’s Chinese statement of 20 December 2004 in which she recalled the telephone conversation between herself and the Plaintiff (Exhibit D-1), Ms Lau had asked the Plaintiff two distinct questions.  These questions and the Plaintiff’s answers were as follows:

(1) 「我問你[任]申請擔保之前，知唔知法官無權俾擔保，以我記憶所及，當時任回答知道，」

(2) 「我再問既然知點解仲申請，任答因法官及律 政司(或主控官或DOJ)冇反對，」          

21.  Thus what happened was that Ms Lau asked the Plaintiff firstly whether he had knowledge prior to making the bail application that District Judges had no jurisdiction to grant bail pending appeal.  She wrote down as far as her memory went, the Plaintiff replied that he knew.  Then she further asked the Plaintiff the second question why he made the application since he knew that the District Judge had no jurisdiction to grant bail pending appeal.  She wrote down the Plaintiff replied that it was because the District Judge and the Department of Justice had no objection.  The substance of the questions and the sequence in which they were asked made good sense.  The Plaintiff criticised Ms Lau’s evidence as not being an assertion of fact but as a mere recollection and should be given no weight.  With respect, that cannot be right.  In my view, any assertion of fact, whether contained in a witness statement or given in evidence in the witness box is an assertion based on memory or recollection.  The qualification added by Ms Lau did no more than to confirm or emphasise that the assertion was an assertion of fact and not a statement of belief or calculated guess or speculation.  I do not think that criticism justified.

22.  The Plaintiff criticised Ms Lau’s evidence about his answer to the second question as illogical and hence her evidence is incredible.  His logic was that he simply could not have known prior to making the bail application that neither the District Judge nor Ms Winnie Ho would not object.  That is logical enough, but life is not only made of logic but also of experience.  Indeed, Ms Lau recognised there and then that the Plaintiff’s answer was illogical.  After she concluded the telephone interview, she ruminated over that answer and thought of a possible reason for the answer.  She thought the reason was that the Plaintiff did not wish to appear to her to have made a mistake and to be ignorant about the law.  Thus she wrote down her belief in her statement as「當時我估計任唔想衰，唔想記者覺得佢無料」.  This was her belief or guess.  According to the Plaintiff, he was very friendly with and was well known to the news media and he answered their questions about the law on a voluntary basis.  He was a legal adviser to many organisations and an arbitrator in a number of arbitration bodies.  He might not wish to lose face and so he bluffed.  Ms Lau’s guess sounded logical in the circumstances.  If Ms Lau was concocting a story, she would have made up a more logical one as she was aware of the lack of logic in the Plaintiff’s answer.

23.  Ms Lau’s evidence is also supported, though not corroborated, in a number of ways by Miss Ng’s evidence.  According to Miss Ng, when she returned to the office that afternoon at about 5 pm, Ms Lau told her about the telephone interview with the Plaintiff.  Miss Ng recalled clearly that Ms Lau told her that during the telephone interview the Plaintiff admitted that he made the bail application despite he knew that the District Judge had no jurisdiction to grant bail.  That was something very striking to Miss Ng as she considered such conduct unusual.  Immediately, she sought clarification from Ms Lau.  Ms Lau thought for a while and confirmed that was what the Plaintiff said.  Then Miss Ng wrote down what Ms Lau told her in her notebook.  She wrote down words to the following effect: that prior to making the bail application, the Plaintiff knew that District Court judges had no jurisdiction to grant bail; that the Plaintiff applied for bail because the District Judge and the prosecutor had no objection; that bail was granted; that the Plaintiff received notice that the bail was revoked; that it was a trivial matter; that the Plaintiff would apply to the High Court for bail for the defendant because a suspended sentence is a light sentence and is appropriate, therefore he would apply for bail.  The original text is in mixed languages was as follows:

“申請bail前知無權批准 - because Judge冇反對，Prosecution 冇反對。Bail granted 後接獲通知revoke bail，是少事，盡快向High Court向Defendant apply bail。Because 判suspend 輕適合 therefore apply。”

 Miss Ng’s note as expanded by her in her evidence in the witness box tallied with Ms Lau’s statement.  While there is a danger that Miss Ng’s evidence might be modelled upon Ms Lau’s statement, the above handwritten contemporaneous note of Miss Ng excluded that possibility.  I have no doubt that Miss Ng was a credible witness and I accept her evidence.  But her evidence about the telephone interview was nevertheless hearsay evidence.  The question is whether Ms Lau was honest in telling the truth in her statement and whether she could have honestly mistaken what was said by the Plaintiff during the interview and hence misinformed Miss Ng.

24.  According to Miss Ng after Ms Lau related the content of the telephone interview to her, she asked Ms Lau to confirm that the conversation was true and Ms Lau stopped and thought for a short while and confirmed that it was true.  On that kind of demeanour as related by Miss Ng, Ms Lau probably took Miss Ng’s question seriously, gave it serious thoughts, recalled in her mind what had happened during the telephone interview.  That was only a couple of hours ago.  Ms Lau’s demeanour as related by Miss Ng and all the circumstances suggest that she did recall the conversation accurately.

25.  Furthermore, Ms Lau’s statement was also supported by her own handwritten note of the telephone interview.  That note was forwarded to the Bar Association on 14 January 2005 in response to the Bar Association’s enquiry of Miss Ng.  It is unlikely that the note was concocted as Ms Lau had died a few days before the request of the Bar Association.  Ms Lau wrote: 

“任枝明：apply f bail 之前冇反對，會向HC apply.  S suspend S.  PG 正確。DOJ冇反對，好小事，循正確方法盡快替陳去HC apply B。”

In the context of the surrounding circumstances, I understand the note to mean that the Plaintiff told Ms Lau that prior to the bail application, there was no objection from the prosecutor or the judge, that he would apply to the High Court for bail as a suspended sentence is appropriate for a plea of guilty, that the Department of Justice had no objection, that it was a trivial matter, that he would apply for bail for Mr Chan through proper proceedings in the High Court for bail.  This note tallied very well with Miss Ng’s evidence of what Ms Lau told her as having been said by the Plaintiff.  Illogical as it may be that Ms Lau wrote down that the Plaintiff said prior to the bail application there was no objection presumably from the judge or the prosecutor, that reflected accurately what Ms Lau heard and recorded in her statement.

26.  On the other hand, when cross-examined on whether he was embarrassed about the bail application, the Plaintiff was extremely guarded.  He did not answer the question directly, which had been asked of him a number of times, but he replied obliquely that the District Judge and the prosecutor also made the same mistake.  He further emphasised that the judge was a very experienced District Judge who was about to retire and the prosecutor was a Senior Government Counsel of the Department of Justice.  The Plaintiff stated that he was frequently consulted on legal matters by the media and that he was an active public figure.  He obviously took pride in assuming his public role.  He was obviously still harbouring embarrassment about the mistake at this trial.  He must have felt much more embarrassed when he was asked by Ms Lau then than he was before me.  I accept Mr Chiu’s submission that that in all probabilities at the time of the telephone call the Plaintiff was embarrassed by the sharp question asked by Ms Lau whether he knew of the District Judge’s lack of jurisdiction to grant bail and his pride and/or embarrassment provoked him at the spur of the moment to slip into the convenience of bluffing his way out without giving thought to the consequence by answering that he knew.  It would occur to him at the moment to say otherwise would do much harm to his credibility as a knowledgeable counsel and free legal adviser to the media.  That also explained why for some ten days after the publication of the report of which he was aware, he took no action until he received the letter from the Bar Association on 13 December 2004.

27.  It would be extremely easy to reject the un-tested evidence contained in the statement of Ms Lau as it contained a very serious allegation against a professional of reputable standing in the profession and in the political and social arena and that Ms Lau was no longer available to give evidence.  However, when her evidence was analysed in the light of her contemporaneous note, her demeanour when she related the content of the telephone conversation to Miss Ng, Miss Ng’s contemporaneous note of that conversation and the demeanour of the Plaintiff, I find Ms Lau’s evidence compelling and credible.  I accept Ms Lau’s evidence as stated in her statement.  I reject the Plaintiff’s evidence that he never had the telephone interview with Ms Lau or that he had never told Ms Lau that he had no knowledge of the judge’s lack of jurisdiction to grant bail pending appeal. 

28.  For the above reasons, I find as a fact that the Plaintiff did tell Ms Lau that prior to his making the bail application he knew the District Judge had no jurisdiction to grant bail.  But as I have already found earlier what the Plaintiff said was actually untrue.  To put the matter beyond doubt, I find that the Plaintiff had told Ms Lau a lie.  Thereafter, Ms Lau further asked the Plaintiff whether he knew about the revocation of bail and the Plaintiff said he knew as he had been informed.  Ms Lau then asked if the Plaintiff had attended Court to deal with the revocation of bail and the Plaintiff replied that he did not because he had to attend a conference.  She recalled that the Plaintiff also said it was a trivial matter and he would follow the proper procedures to apply for bail in the High Court for Mr Chan.  I also find as a fact these conversations were exchanged during that telephone interview.

29.  This completes the necessary finding of basic facts which I need for determining the Plaintiff’s claim.  I now turn to the Plaintiff’s two causes of action, libel and innuendo.  As Mr Chiu suggested, it would be convenient to deal with the second one first.

The innuendo

30.  Libel and innuendo are two separate causes of action: see Grubb v Bristol United Press [1963] 1 QB 309 and匠心髮型 (商號) 對The Sun News Limited and The Sun News Publisher Limited, HCA 3236 of 2002.  In respect of the cause of action based on innuendo, Mr Chiu took a pleading point.  He submitted that the Plaintiff’s pleaded case on innuendo is bad due to lack of particulars in the pleading and lack of evidence in support of the innuendo.  

31.  Unlike libel, the ordinary and natural meaning of the offending words relied on in an innuendo are not necessarily defamatory.  An innuendo is based on the extended meaning of the words and the particular factual situation.  In Grubb v Bristol United Press [1963] 1 QB 309, Holroyd Pearce LJ held at 327:

“… there is one cause of action for the libel itself … and there is another different cause of action, namely, the innuendo, based not merely on the libel itself but on an extended meaning created by a conjunction of the words with something outside them.  The latter cause of action cannot come into existence unless there is some extrinsic fact to create the extended meaning.”

Thus, to succeed as a separate cause of action, the plaintiff must prove some extrinsic fact known to at least one of the persons to whom the words were published and which will create an extended meaning of the words impinged and both the extended meaning and the extrinsic fact must be pleaded. 

32.  Pleading is very important in an action based on innuendo.  As the extended meaning of a word is not apparent on the face of it, a defendant must know the case he is required to meet.  He is entitled to know the extended meaning relied on by the plaintiff and the extrinsic factual circumstances which give rise to that meaning.  Hence, a plaintiff is required by RHC Order 82 rule 3(1) to plead the innuendo meaning and to give the particulars of the facts and matters on which he relies in support of that meaning.  As Holroyd Pearce LJ said, it is a matter of substance for the defendant to seek to disembarrass himself of any suppositious innuendoes before the trial for if a plaintiff were permitted merely by ingenious inference to pile innuendo upon innuendo, or to proliferate innuendoes with the aid of Roget’s Theasaurus, there would be no limit to the number of causes of action he could bring.  Thus, the learned authors of Gatley on Libel and Slander, 10^th ed wrote at paragraph 26.22 as follows:

“Pleading innuendoes.  Where the claimant relies on an innuendo meaning, he must plead particulars of the facts and matters on which he relies in support of such sense.  These facts or matters will generally incorporate either a special definition of the words known only to a limited class of persons (such as slang or technical terms) or facts extrinsic to the libel which, if known about, affect the way the words complained of are understood …”

33.  With respect to the Plaintiff, his statement of claim was badly drafted.  He pleaded the offending words in paragraph 4, their natural and ordinary meaning in paragraph 7, the innuendo meaning in paragraph 8 and the falsity of the offending words in paragraph 9.  Paragraph 4 of his statement of claim reads as follows:

“4.     In paragraph 1, Line 2: 

辯方懷疑「博大霧」

In paragraph 2, line 1:

辯方大律師任枝明回應指，他是知道區院法官沒有批准保釋的情況下，向主審法官施允義申請擔保被告陳榮耀(50歲)，而且控方和法官均沒有反對其申請，他認為此乃(小事)” (The high-lighted part was not quoted by the Plaintiff in the statement of claim but included herein for completeness.)

Then in paragraph 8, he referred for the first time to “the said words in the First Defamatory Statement”.  The phrase “First Defamatory Statement” was not defined in his statement of claim.  I would have thought it referred to the words in paragraph 1 line 2, while the words in paragraph 2 line 1 should be identified as the “Second Defamatory Statement”.  That was what Mr Chiu assumed to have been the case.  But there was no reference to the “Second Defamatory Statement” in the rest of the statement of claim.  To enable the Plaintiff to argue his case in the best light, I assume the phrase “First Defamatory Statement” refer to all the statements pleaded in paragraph 4 of his statement of claim.  For ease of identification, I shall refer the words in paragraph 1 line 2 of the report as the “First Offending Words” and those in paragraph 2 line 1 of the report as the “Second Offending Words” instead and collectively as the “Offending Words”.

34.  I now return to the more crucial part of the Plaintiff’s statement of claim.  He pleaded innuendo in paragraph 8 and gave the particulars required under RHC Order 82 rule 3(1) as follows:

“8. Further or alternatively the said words in the First Defamatory Statement bore and were understood to bear the meanings pleaded in paragraph 9 above by way of innuendo.

Particulars under R.H.C. Ord.82 r.3(1)

a. The Plaintiff repeats paragraph 1 hereof.

b. The words 「博大霧」, when used to describe a person’s behaviour, is generally known to those conversant with colloquial Cantonese in Hong Kong as signifying recklessly and/or unethically and/or dishonestly and aggressively to mislead in order to get certain advantages.

c. The Defendant knew or ought to have known that the Plaintiff could not lie or mislead the Court and in the premises, the Defendant intended such words would denigrate the character of the Plaintiff in the eyes of the Judges and other legal professionals and the general public.”

35.  As the pleading now stands, paragraph 8a only set out the fact that the Plaintiff was at the material time a practising barrister.  It was submitted by Mr Chiu that this was not an extrinsic fact of the publication because that fact was part and parcel of the alleged libellous report.  I agree with that submission.  But even if it were an extrinsic fact, it is neutral in effect.

36.  In respect of paragraph 8b, Mr Chiu submitted that what the sub-paragraph alleges is the general knowledge of the Cantonese speaking public in Hong Kong and could not constitute an extrinsic fact.  I agree.  The meaning of the words 「博大霧」 whether by themselves or in the context of the entirety of the statement pleaded in paragraph 4 can be best said to be the alleged natural and ordinary meaning of the words under the action for libel and not an extended meaning under the action for innuendo.

37.  Paragraph 8c is a pleading of an extrinsic fact, but curiously, the Plaintiff was alleging therein the fact of knowledge of the Defendant instead of an extrinsic fact known to the persons or the public to whom the Offending Words were published.  That assertion and the further assertion about the intention of the Defendant to denigrate the character of the Plaintiff can only be regarded as an assertion of malice on the part of the Defendant.  It is not an extrinsic fact which can support the innuendo meaning, and after all, no innuendo meaning has been effectively pleaded.

38.  The state of the pleading as such is defective.  It failed to allege any reasonable cause of action.  On the evidence, the fact pleaded in paragraph 8a is not in dispute.  The fact pleaded in paragraph 8b is a question of fact for me sitting as the tribunal of fact.  I can call upon my knowledge of the Chinese language and no evidence is needed.  As for the fact pleaded in paragraph 8c, there was a total lack of evidence in support.  Even if all these facts were resolved in favour of the Plaintiff, no innuendo could be proved.  The Plaintiff’s claim under this cause of action must be dismissed. 

The meaning of the Offending Words

39.  The defamatory meaning of the Offending Words as pleaded by the Plaintiff in paragraph 7 is as follows:

“7.     In their natural and ordinary meaning the said words meant and were understood to mean the following:

a.   The plaintiff was a hypocrite and or dishonest.

b.   The plaintiff knew the District Court Judge had no jurisdiction in granting bail and the Plaintiff intentionally misled the Court in the said bail application.

c.   The Plaintiff did not handle the said matter seriously and or professionally.”

40.  It is not entirely clear what the Plaintiff meant by “the said words” in paragraph 7 of his statement of claim.  He was not referring to the First Defamatory Statement in paragraph 8 which had not been defined.  It would be to the Plaintiff’s advantage to assume that he meant both the First Offending Words and the Second Offending Words.  I shall do so in my analysis.

41.  It should be recalled that I have found as a fact that the Plaintiff did tell Ms Lau during her telephone interview that prior to making the bail application he was aware of the District Judge’s lack of jurisdiction to grant bail and that he said it was a trivial matter.  Thus the Second Offending Words as published in the report was a true and accurate reporting of that telephone conversation, which I now call the “Base Fact”.

42.  I shall begin with the words 「博大霧」 in the First Offending Words.  I think, on the face, literally these words mean “to take advantage of the heavy fog” or metaphorically, “to take advantage of an uncertainty「不明朗的情況下取利」” They denote a course of conduct which may be described as shrewd but not necessarily dishonest.  Take, for example, that Mr Bernanke was about to make an important speech about the economy of the United States and the interest rate direction of the US dollars, speculators would position themselves to buy US dollars or securities by placing limiting orders at critical price levels should the speech went one way or to sell at critical price levels should it went the other.  This is taking advantage of an uncertainty with a strong element of risk but no element of dishonesty.  Such conduct is shrewd but not dishonest.  Likewise, in criminal litigation, counsel would advise his client to plead guilty or not guilty or to adopt a certain tactic when to his knowledge the prosecutor and the judge are unaware of certain critical facts or latest development of the law which is prejudicial to his client.  Defence counsel has no duty to assist the prosecution and his primary duty is owed to his client.  Taking advantage of an uncertainty under those circumstances is also shrewd but not dishonest.  It is not uncommon to see counsel in criminal litigation arguing on facts or even on points of law which on a careful analysis of the facts or mature consideration of the law are wholly unsustainable.  This may be described as taking advantage of an uncertainty but do not necessarily carry a defamatory imputation, afterall, it is counsel’s duty to fight for the interest of his client. 

43.  As for the Second Offending Words, they describe a factual situation which is true, i.e. the Base Fact.  As such they can hardly be defamatory.  Taken in isolation, neither the First Offending Words nor the Second Offending Words were defamatory.  However, when the First Offending Words are read together with the Second Offending Words, the First Offending Words are capable of bearing a defamatory meaning in that dishonesty is suspected to have been subscribed to the shrewd conduct in trying to take advantage of the uncertainty.  The question then is whether the Offending Words bear that defamatory meaning?

44.  To answer that question, I have to approach the Offending Words in the report from the point of view of an ordinary reasonable reader.  This hypothetical reader is a reasonable, fair-minded man or woman, of ordinary intelligence, with the ordinary person’s general knowledge and experience of worldly affairs and knowledge of the Chinese language, both its literary and colloquial usage.  He is not naïve but not unduly suspicious.  He can read between lines, can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking, but not as being avid for scandal.  This reader just reads the report once.  He would not engage in an over-elaborate analysis of the material as though he were examining a contract document or a scientific journal.

45.  When counsel applies for bail knowing that the judge has no jurisdiction to grant it, he is to say the least, unprofessional.  This hypothetic reader can read between lines and read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking.  Reading the report once must have left such a reader in the circumstances with the general impression that there was some element of dishonesty involved when the Plaintiff attempted to take advantage of the judge’s ignorance of his lack of jurisdiction.  The reader would give little weight to the words “suspected of ” (taking advantage of the uncertainty) in view of what was said in the Second Offending Words that the Plaintiff admitted his knowledge of the judge’s lack of jurisdiction.  He would read the report only once and would not ruminate over the words “suspected of” and quickly come to the conclusion that the Plaintiff was unprofessional.  Mr Chiu submitted that while to a lawyer with knowledge of the Bar code, the suggestion of unprofessionalism is obvious, but a layman without such knowledge would not know of the suggestion of unprofessional conduct.  I respectfully disagree.  The hypothetical reader is a reasonable, fair-minded man or woman, of ordinary intelligence, with the ordinary person’s general knowledge and experience of worldly affairs.  He must know such conduct is unprofessional.  To suggest a barrister acted unprofessionally in the practice of his profession is defamatory.  Accordingly, I find the Offending Words defamatory of the Plaintiff.

The defence of justification

46.  Having reached the above conclusion, it becomes necessary for me to consider the Defendant’s defence.  The Defendant’s first pleaded defence is justification.  The defence of justification is that the defamatory imputation is substantially true.  This defence was abandoned at trial as the Defendant does not dispute that the Plaintiff had no knowledge of the District Judge’s lack of jurisdiction.  Mr Chiu is relying on the telephone interview between the Plaintiff and Ms Lau.  However, he is not relying on the truth of what the Plaintiff told Ms Lau, but on the fact that the Plaintiff had told her a lie.  In other words, the Defendant was publishing what the Plaintiff told Ms Lau.

Defence of fair comment

47.  This defence is that the First Offending Words, “辯方懷疑 「博大霧」” were fair comments on a matter of public interest based upon the Base Fact which was true or though untrue, was published in circumstances covered by qualified privilege.  The law on what is a fair comment has been well settled by the Court of Final Appeal in Cheng & Another and Tse Wai Chun (2003) 3 HKCFAR 339.  In that case Lord Nicholls NPJ set out five ingredients of the defence.  He said at 347:

“In order to identify the point in issue, I must first set out some non-controversial matters about the ingredients of this defence.  These are well established.  They are fivefold.  First, the comment must be on a matter of public interest.  Public interest is not to be confined within narrow limits today: see Lord Denning in London Artists Ltd v Littler [1969] 2 QB 375 at p.391.

Second, the comment must be recognisable as comment, as distinct from an imputation of fact.  If the imputation is one of fact, a ground of defence must be sought elsewhere, for example, justification or privilege.  Much learning has grown up around the distinction between fact and comment.  For present purposes, it is sufficient to note that a statement may be one or the other, depending on the context.  Ferguson J gave a simple example in the New South Wales case of Myerson v Smith’s Weekly (1924) 24 SR (NSW) 20 at p.26:

                                                                                      To say that a man’s conduct was dishonourable is not comment, it is a statement of fact.  To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment.

Third, the comment must be based on facts which are true or protected by privilege: see, for instance, London Artists Ltd v Littler [1969] 2 QB 375 at p.395.  If the facts on which the comment purports to be founded are not proved to be true or published on a privilege occasion, the defence of fair comment is not available.

Next, the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made.  The reader or hearer should be in a position to judge for himself how far the comment was well founded.

Finally, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views: see Lord Porter in Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at p.461, commenting on an observation of Lord Esher MR in Merivale v Carson (1887) 20 QBD 275 at p.281.  It must be germane to the subject matter criticised.  Dislike of an artist’s style would not justify an attack upon his morals or manners.  But a critic need not be mealy-mouthed in denouncing what he disagrees with.  He is entitled to dip his pen in gall for the purposes of legitimate criticism: see Jordan CJ in Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 at p.174.”

48.  To raise this defence of fair comment, the Defendant has to show that the First Offending Words were :

(i)     expressed on a matter of public interest,

(ii)    recognisable as a comment,

(iii)   based on facts which are true or protected by privilege,

(iv)   explicitly or implicitly indicated what were the facts on which the comment was being made, and

(v)    was one which was capable of being held by an honest person. 

I shall now consider each of these elements in turn.

49.  (i) Public interest – This defence is concerned with protection of comment, not imputations of fact.  The freedom of expression protected by this defence has long been regarded by the common law as a basic right long before the emergence of human rights conventions.  What is public interest has never been defined.  But Lord Nicholls in Reynolds v Times Newspapers Ltd and others [2001] 2 AC 127 at 193 recognised that this defence is wide in its scope and approved Lord Denning’s dicta in London Artists Ltd v Littler [1969] 2 QB 375 that public interest is not to be confined within narrow limits.  In London Artists Ltd v Littler [1969] 2 QB 375 Lord Denning MR said at 391:

“Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or others; then it is a matter of public interest on which everyone is entitled to make fair comment.”

50.  I think it can hardly be argued that reporting of criminal proceedings is not a matter of public interest.  In that connection and in view of the very wide scope of public interest, reporting on conduct of counsel in the conduct of criminal litigation must also be a matter of public interest either by itself or as a matter necessarily incidental to reporting of criminal proceedings.  Furthermore, the public has an interest to know the quality of the system of justice.  Accordingly, I hold that the report was on a matter of public interest.

51.  (ii) Recognisable as a comment – The First Offending Words, “辯方懷疑「博大霧」” were shortly after followed by the Second Offending Words which, in my view, set out the factual basis on which the First Offending Words were premised.  The present case is similar to the example given by Ferguson J in the New South Wales case of Myerson v Smith’s Weekly (1924) 24 SR (NSW) 20 albeit the comment and the factual basis were put in the reverse order.  In this context, the words “「辯方懷疑」” (the defence suspected of) in the First Offending Words, assumed great significance.  To say someone is suspected of a certain conduct is clearly not an assertion of fact that the person has so conducted himself, especially if the basis of the suspicion has been set out.  It is therefore clear from these words that the First Offending Words are not statement of fact but comment supported by facts.

52.  (iii) Supported by facts which are true – This brings me to the next element, i.e. that the comment is supported by facts which are true.  I have earlier found that the Base Fact is true.  The Plaintiff did tell Ms Lau that prior to making the bail application he knew of the District Judge’s lack of jurisdiction to grant bail.  The Base Fact is true, though what the Plaintiff said in that conversation was a lie. 

53.  (iv) Explicit or implicit indication of the Base Facts – I think the proximity with which the Second Offending Words followed the First Offending Words is clear implicit indication that the Base Fact was the fact on which the comment was made.

54.  (v) The comment was capable of being held by an honest person – The Plaintiff admitted that neither Ms Lau nor the Defendant bore any grudge against him.  He asserted that Ms Lau made a mistake about the contents of the telephone conversation as opposed to deliberately making up the conversation.  There was simply no evidence that the comment was not an honest opinion of the reporter, Miss Ng, or of the Defendant.  On an objective view, I consider the comment is reasonable and not exaggerated.  It was a reasonable comment to make in the light of the Base Fact, especially as the Second Offending Words were an accurate reporting of what the Plaintiff said during the telephone interview.  If the Plaintiff knew the District Judge had no jurisdiction to grant bail before he made the bail application, he was, to say the least, clearly trying to take advantage of an uncertainty, namely the judge’s ignorance of his lack of jurisdiction.

55.  Conclusion – For the above reasons, I am satisfied that the defence of fair comment has been made out.  There is no need for the Defendant to go down the route of proving qualified privilege.

Malice in the context of fair comment

56.  Once the defence of fair comment has been made out, it is up to the Plaintiff to prove malice in order to negative that defence.  To do so, the Plaintiff must show that the Defendant did not honestly hold the view expressed. 

57.  The Plaintiff accused the Defendant of malice in publishing the Offending Words and impliedly the comment was not a genuinely held opinion.  His argument was that the Defendant was in financial difficulties as evidence by its failure to pay rent, that it was suffering a downturn in business as reported by some magazines, that it had been excluded its membership from Hong Kong Audit Bureau of Circulations Ltd (“HKABC”) as evidence of malice.  His argument was that because of all these, the Defendant exerted pressure on its staff to generate sensational journalism so as to increase the circulation of its newspaper.  In my view, the evidential basis of his argument is doubtful.  The downturn in the Defendant’s business is not supported by credible evidence.  The Defendant explained that its membership in HKABC was discontinued by itself voluntarily as a business decision for refusing to submit publisher’s returns.  As could be seen from the article from HKABC, many other popular magazines have or have been terminated their membership for the same reason.  Even though the Defendant was in arrears of rent at some stage, that does not lead to the inference of malice or that its opinion as expressed by the First Offending Words was not genuinely held.  There is a total lack of nexus between the inference the Plaintiff asked me to draw and the very doubtful evidential basis on which he asked me to draw the inference.  I am surprised by his submission.

58.  Next, the Plaintiff also argued that by publishing the report on page A-17 of the newspaper and with his photograph alongside HH Judge Sweeney’s, the Defendant was malicious in trying to attract circulation.  His argument is hardly convincing.  Page A-17 was an inside page.  It could not have attracted the sight of any prospective reader or buyer of the newspaper.  Even though on that page the report was prominent, the main heading was about imprisonment of an associate professor of the Chinese University which was printed in large Chinese characters of the size of 40 mm.  The sub-heading was about the District Judge making mistake which was printed in characters of 20 mm.  The First Offending Words were printed in characters of 3 mm, while the Second Offending Words were printed in characters of slightly smaller than 3 mm.  There was a sub-sub-heading containing the First Offending Words in the body of the report which was printed in characters of 5 mm.  In the circumstances, I do not think the prominence given to the Offending Words and to the Plaintiff’s photograph supports the Plaintiff’s argument.

59.  I reject the Plaintiff’s argument on malice in the context of fair comment for the purpose of boosting the circulation of the Defendant’s newspaper as wholly unmeritorious.  I am satisfied that the comment was a genuinely held opinion. 

Conclusion

60.  I find as a fact that the Plaintiff did tell Ms Lau during a telephone interview that prior to making the bail application for his client he knew HH Judge Sweeney had no jurisdiction to grant bail pending appeal.  That was accurately reported in the Second Offending Words in the report.  I find the First Offending Words taken with the Second Offending Words defamatory of the Plaintiff but they amounted to an honest opinion based on fact which was true in the sense that it was an accurate reporting of what the Plaintiff told Ms Lau.  I am not satisfied that the opinion was made out of malice.  Accordingly, I come to the conclusion that the Defendant has successfully raised the defence of fair comment and is not liable in defamation.  As for the cause of action based on innuendo, the Plaintiff had failed to plead and prove the innuendo.  The Plaintiff’s action is therefore dismissed with a costs order nisi that he shall pay the Defendant’s costs.

61.  Even if the Defendant were unable to raise the defence of fair comment, the defamatory imputation raised by the Offending Words was of a very trivial nature in the context in which they were reported.  The Plaintiff cited the case of Charles Sin Cho Chiu v Tin Tin Publication Development Ltd and Another, HCA 6662/1997 and suggested damages in the tune of $2 million.  In that case, a reputable solicitor was alleged to be involved in corruption and a passport scandal in relation to passports issued by the country of which he was an honorary consul.  The imputation in the present case is of no parallel to the imputation in that case.  The Plaintiff’s allegation that he suffered serious injury to his character, credit, reputation, loss of business from his practice as a barrister and suffered anxiety and injury to his feeling are unsupported by his evidence.  Due to my finding of his lack of credibility in the main factual issue, I consider these allegations are exaggerations.  Even if he did suffer any damages, in view of the very trivial nature of the defamatory imputation and that he was the author of his own misfortune as it was he who chose to tell a lie to Ms Lau, he deserves no more than a nominal award and should be deprived of his costs.