MO MAN CHING AND ANOTHER v. EASTERN EXPRESS PUBLISHER LTD. AND ANOTHER

FAMV No. 4 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 4 OF 1999 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 178 OF 1998)

_____________________

_____________________

_______________________________

D E T E R M I N A T I O N

_______________________________

Mr Justice Bokhary PJ:

1. This application for leave to appeal to the Court of Final Appeal arises out of a libel action. The action was brought by two newspaper publishers: Eastern Express Publisher Ltd ("Eastern") and Oriental Press Group Ltd ("Oriental"). Their action was brought in respect of a television programme. It was the episode of the Cantonese current affairs programme called "Media Watch" aired on the evening of 11 March 1995. Two persons were sued. One was Miss Claudia Mo, who was one of the two presenters of the programme. The other person sued was the Director of Broadcasting, who was the producer of the programme.

2. Two statements made by Miss Mo in the course of the programme were the subject-matter of complaint.

3. The findings of Yuen J, who sat without a jury, were as follows:

(1) Neither statement referred to Eastern.

(2) Both statements referred to Oriental.

(3) The first statement was not defamatory.

(4) The second statement was defamatory, the sting of the libel being that Oriental resorted to defamation proceedings against its critics in order to intimidate would-be critics into silence.

(5) Justification failed.

(6) Fair comment succeeded.

(7) If Oriental had succeeded, the damages would be $80,000.

Accordingly the action was dismissed with costs: Eastern failing on the initial issue of identification; and Oriental failing on the ultimate issue of fair comment.

4. Eastern and Oriental took the matter to the Court of Appeal. They succeeded in that court (Liu and Leong JJA and Yeung J) which held: that there had been reference to Eastern; and that fair comment was not made out. Miss Mo and the Director had sought to support the judge's result by way of a respondent's notice contending that the judge should have found that the second statement was not defamatory either. The Court of Appeal rejected this contention. The Court of Appeal entered judgment for Eastern in the sum of $20,000 and for Oriental in the sum of $80,000. They were given half their costs before the judge and in the Court of Appeal.

5. Mr Robert Tang SC for Miss Mo and the Director says that his clients wish to argue before the Court of Final Appeal that the Court of Appeal should have held: (i) that there was no reference to Eastern; (ii) that the second statement was not defamatory either; and (iii) that, all else failing, the defence of fair comment succeeded.

6. How fair comment operates in a case like this is relevant to the freedom of the media and is, accordingly, of very considerable importance. And it is at least reasonably arguable that the Court of Appeal's reversal of the judge's finding on fair comment was unwarranted. Even on the question of fair comment alone, we consider it appropriate to grant leave to appeal to the Court of Final Appeal.

7. Accordingly leave to appeal to the Court of Final Appeal is granted; and we place no restriction on what questions other than that of fair comment may be canvassed before the Court of Final Appeal.