CHIM PUI CHUNG v. APPLE DAILY LTD AND OTHERS

HCA 1286/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1286 of 2014

__________________

________________________

D E C I S I O N

________________________

THE APPLICATION

1. By summons dated 13 January 2016, the Defendants (“Ds”) applied for leave to adduce expert evidence, which the plaintiff (“P”) contests.

2. The parties are legally represented.[1]

3. The expert report that Ds seek leave to adduce is to support Ds’ plea of justification defence, in particular, the following pleaded meaning: -

(a)  A person claiming to have a close to 100% win betting formulae should not be taken seriously.

(b)  A person claiming to have a close to 100% win betting formula must be a joker and/or thoughtless.

(c)  Punters who follow the formulae might get into trouble financially.[2]

4. The main reason of P’s objection is that Ds have given the evidence in the witness statement, which will be apparent to the trial judge without any assistance from an expert.  This will be explained below.

FACTUAL BACKGROUND

5. This is a defamation case where P alleges that Ds had published a defamatory article in a newspaper against him.  The Article reads as follows: -

“回顧番世界盃前，有一日出街食飯,餐廳竟然開始亞視，又咁岩詹培忠做咩<香港怒看>嘉賓，仲要教人點賭至有錢贏 (係收視接近0嘅地方講呢啲!)。講出嚟大家一定恥笑: 主客和一定場場買和，因為賠3倍上下，如果第一場輸，就1、2、4、8、16咁買落去，直至贏番為止，贏番又由頭買過一注。我當時心諗有發達橋,又點會周街派? 而呢條傻佬仲要係詹培忠，你信佢一成都死。到今日大家睇番過去50幾場，如果照條櫓佬買，末到16強已經要懸樑。”

6. The translation of the article in English is:

“ … So happened Chim Pui Chung was the guest in the so-called show ‘Views on Hong Kong’, he even taught people how to win money betting on football (talking about it in a place which gets almost zero television rating!). When it was spoken out, all of us will definitely tease at him:…And that fool is Chim Pui Chung, it is deadly to you to believe in even on-tenth of him. …if you had been following this stupid one to bet, you would have already hung yourselves before the round of 16.”[3]

DISCUSSION

The pleaded case - justification

7. One of the defences that Ds have pleaded in the Defence is justification.  Paragraph 11 of the Defence reads:

“If and insofar as the Alleged Defamatory Words bore or were understood to bear or were capable of bearing the meanings set out below, they are true in substance and in fact.

Particulars of Meaning

(1) A person claiming to have a close to 100% win betting formulae should not be taken seriously.

(2) A person claiming to have a close to 100% win betting formula must be a joker and /or thoughtless.

(3)  Punters who follow the formulae might get into trouble financially.”

8. P denies this paragraph and put D to strict proof.[4]

P’s objection

9. P objects to the expert evidence and says: “The rhetoric question being asked is what is the technical aspect that this court is requiring the assistance of an expert.  There is no issue which is highly complex, beyond the knowledge capacity or capability of the court to fully understand the technical aspect of such matter.  The court does not need an expert to understand the truthfulness of the meaning “a person claiming to have a close to 100% win betting formulae” should not be taken seriously or must be a joke.”[5]

10. P further submits that D3 has already stated in his witness statement on the point of justification.  In paragraphs 17 and 18 of the witness statement, he said:

“ 17. The Formulae is based on the well known St. Petersburg Paradox. Under the theory, the game would continue infinitely, and that the player would have an indefinite amount of betting capital, and the player would eventually make a gain.

18. The Formulae is not a winning system and does not work, especially for gambling on football matches in Hong Kong, because the Formulae did not take into the account of the followings: -

(1) The game is not fair, because the Hong Kong Jockey Club (“HKJC”) has a house take on each game.

(2) Unlike a game of coin tossing, the odds are not 50/50.

(3) There is a maximum bet allowed by the HKJC, thus one cannot increase one’s bet indefinitely.

(4) There are a total of 64 matches in the 2014 FIFA World Cup, thus the game would not continue infinitely.”.[6]

11. P’s main complaint of the article is that the formula will lead a punter to become bankrupt and he has to hang himself.

Ds’ argument

12. Ds’ argument is that P has not made his position clear and P’s position on the formulae is rather doubtful.  For the purpose of his pleadings, P in effect maintained that the formulae were 100% win betting formulae.[7]  The question to ask would then be, what is P’s position?  It is plain that P is maintaining that the formulae have a 100% chance of winning, and clearly Ds do not share such view. It is submitted that the expert report would clearly “be helpful to the court in arriving at its decision” on the issue.[8]

13. Ds will therefore assume that P denies paragraph 11 of the Defence as a whole.

The Court’s observation

14. It is clear that since P opposes this application, Ds have to obtain leave from this Court to adduce expert evidence under O 38, r 36 RHC and the burden is on them to show to this Court that the proposed expert evidence is relevant to the issues in dispute, Majorette Hong Kong Ltd v Fullmore Corporation Ltd (unreported, HCA 1583/2008 and HCA 1599/2008, 23 June 2010, §7).  The court has to examine the pleadings to determine whether the proposed expert evidence is required in the pleaded case: Yeung Ga Wai v Lau Ming Shum (unreported, HCA 798/2004, 19 July 2012.)  The legal principles in Wong Hoi Fung v American International Assurance Co (Bermuda) Ltd & Another [2002] 2 HKLRD 507 are quite clear and it does not require this Court to set them out here.  Suffice it to say, if this Court is unclear about whether expert evidence should be admitted, this Court should give leave to Ds to adduce the expert evidence.  It is only clear that the expert evidence is irrelevant or inconsistent with the primary objectives under Order 1A of RHC, this Court should rule out the admissibility.

15. It will be difficult to read P’s Statement of Claim that P is maintaining that the formulae have a 100% chance of winning. See paragraph 5 above.  Ds are also complaining that P’s position as appeared on the pleadings is not clear. In the circumstances, the issues of the parties’ pleaded case appear to be unclear.  It is the parties’ duty to identify clearly the issues in dispute at the early stage of the proceedings. Issues cannot be brought up without proper clear pleadings.  International Ltd v Hyundai-CCECC Joint Venture (a firm) (2013) 16 HKCFAR 632, §§33 & 34.  In Big Island Construction (HK) Ltd v Wu Yi Development Co Ltd & Another (2015) 18 HKCFAR 364, where Mason NPJ said at 75.

“First, however, it is necessary to ascertain what were the issues as they arose on the pleadings and determine on which party the onus of proof rested in the context of these issues.”

16. Expert evidence must be confined to the live issues of dispute between the parties, which must be sought from the pleadings China Gold Finance Limited v CIL Holdings Limited & Ors (unreported, HCA 2900/2001, 25 September 2012, at paras 17-18.)  See also §21 of the Court of Final Appeal’s Decision in Kwok Chin Wing v 21 Holdings Ltd (formerly known as GFT Holdings Ltd, Capital Prosper Ltd and Rockapetta Holdings Ltd) & Another (2013) 16 HKCFAR 663 per the CJ.

17. It seems that those issues as set out in paragraph 11 of the Defence on justification do not tally with the article in question.  At least, Ds are not asking the expert to tell the court that using P’s formulae will bankrupt the punter before finalists 16.  This morning, P is telling this Court that the main objection to paragraph 11 of the Defence is this part, ie, that the formula will definitely cause bankruptcy to the punter.

18. It is trite that the burden is on Ds to satisfy this Court that the expert evidence is necessary for the trial.  Though there is no express statutory provision under O 38 RHC to say that order for expert evidence will only be made for a fair trial or for saving costs, nevertheless, Order 1A, rules 1(a) (b) and (c) dictate the court’s approach:

(a)  to increase the cost-effectiveness of any practice and procedure to be followed in relation to proceedings before the Court;

(b)  to ensure that a case is dealt with as expeditiously as is reasonably practicable;

(c)  to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings;

(d)  to ensure fairness between the parties;

19. Order 1A, rule 2 provides:

“(1) The Court shall seek to give effect to the underlying objectives of these rules when it-

(a) exercises any of its powers (whether under its inherent jurisdiction or given to it by these rules or otherwise); or

(b)  interprets any of these rules or a practice direction.”

20. Ds have already stated in the article that if one follows the formula for past 50 games, one would have become bankrupt and would have hanged himself.  This is a clear reason for the plea of justification, with concrete evidence in support of the statement.  The question is whether it is necessary to call expert evidence for the plea.

21. Ds have not been able to pass the threshold in that the pleadings are not clear, as according to Ds, and as such, the proposed expert evidence simply does not assist the court to come to any resolution for the parties’ disputes.

22. For the reasons above, Ds’ application is dismissed.

COSTS AND ORDER

23. As to the costs, there is no objection that the costs should follow the event (with Counsel’s Certificate).  P’s costs are assessed at $70,000, including the costs reserved and for today’s hearing to be paid by Ds within 14 days from the date hereof.

24. This Court shall now make an order in terms as follows:

(a)  Ds’ summons be dismissed;

(b)  Costs of this application, including the costs reserved and for today’s hearing be as per paragraph 23 supra.

CASE MANAGEMENT

25. By consent, leave be granted to P to set down for trial within 42 days from the date hereof for a 3-day trial before a bilingual judge in consultation with counsel’s diaries. There shall be a PTR on a date 12 weeks before trial before the trial judge.  The parties shall raise the issue of recusal, if any, and confirm the length of the trial by counsel before the trial judge.  Any interlocutory applications before the PTR shall be fixed before the Registrar for argument.

26. Costs for the Case Management Conference are in the cause.