ASIA TELEVISION LTD. v. ORIENTAL DAILY PUBLISHER LTD. AND OTHERS

HCA 6124/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 6124 OF 2000

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R U L I N G

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Introduction

1. This is the plaintiff's application, made after the close of the defendants' case:

(1) to strike out para. 7, para. 8 and 9 of the Amended Defence;

(2) alternatively, to withdraw the defence of justification and fair comment from the jury.

2. The application is made at this stage of the trial following the course proposed in McDonald's Corporation & another v Steel & another [1995] 3 ALL ER 615, 622 g and 623 b-c. In the McDonald's case, the UK Court of Appeal (Niell LJ) said:

"... following the introduction of the practice whereby witnesses' statements are exchanged in accordance with O.38 r.2A, there may well be cases where after the witnesses' statements have been served it may be possible to demonstrate that the pleaded case is hopeless. For example, in a libel action it might become clear that the defendant had no evidence available other than rumour and that there was no possibility that the case was going to be improved by discovery."

"At the close of the evidence

By this stage all the evidence will be before the court. Where the trial is with a jury (or even where the trial is by a judge alone) I can seek considerable merit in removing from the pleadings those allegations of which there is no evidence for the jury to consider."

In relation to the plea of fair common, it was said in the McDonald's case:

"A similar approach should be adopted towards facts which are relied upon in support of a plea of fair comment." (page 621)

3. The plaintiff brings this action in libel alleging that the defendants published in the 10 March 2000 issue of the Oriental Daily News an article which is defamatory of the plaintiff. There is no dispute that the article was published by the defendants or that it referred to the plaintiff. The defendants defend this action essentially on the grounds that:

(a) the article does not have a defamatory imputation: para. 6 of the Amended Defence;

(b) if the article is defamatory, the defamatory words are true in substance and in fact: para. 8 of the Amended Defence;

(c) further, a part of the article is fair comment: para. 9 of the Amended Defence.

Para. 7(i) - (iv)

4. Para. 7(i) - (iv) of the Amended Defence respectively aver that:

"In the alternative and without prejudice to the defendant's contention as stated in para. 6 above, the Article as set out in Schedule A in its natural and ordinary meaning means: -

(i) there is an agreement or understanding in place between the 3 TV stations: the plaintiff, Television Broadcasts Limited ('TVB') and Hong Kong Cable Television Limited ('Cable TV'), to take turn to produce the 'Budget Forum' 「預算案論壇」；

(ii) it was the common understanding between the said 3 TV stations that the 'Budget Forum' would be broadcasted by them during the prime hours but the agreement to do so did not have binding effect;

(iii) both TVB and Cable TV had broadcasted the Budget Forum during the prime hours;

(iv) the Plaintiff was the only TV station out of the said 3 TV stations that did not broadcast the 'Budget Forum' during the prime hours."

5. The plaintiff's application to strike out is based on the observations in Cruise & another v Express Newspapers plc & another [1999] 2 WLR 327, 341H where the UK Court of Appeal said:

"Under modern pleading practice a defendant must plead any different defamatory sting(s) (which he contends the words are capable of bearing, as the foundation for his plea of justification or fair comment. The focus of a strike-out application is no longer at large, as it was in Waters v Sunday Pictorial Newspapers Limited [1961] 1 WLR 967. The defendant is now tied to his pleadings, and the plaintiff can apply to have a plea of justification or fair comment struck out if he contends that it is not properly arguable that the words complained of are capable of bearing the meaning(s) relied on by the defendant; or that the meaning(s) relied on are not defamatory; or that a particular meaning, although defamatory, conveys a separate and distinct sting from that relied on by the plaintiff, and the plaintiff makes no complaint about that separate sting."

6. The plaintiff makes it clear that this part of its application is based on the second category referred to in the Cruise case, namely, para. 7(i) - (iv) set out meaning(s) which are not defamatory. Upon query by the court, the plaintiff accepts (subject to the other objections set out in the headings below) that, in relation to para. 7(v) - (vi) of the Amended Defence, a separate and distinct sting in the libel has been set out in those paragraphs.

7. Defence counsel resists this part of the application arguing that the passages in the Cruise case are obiter dictum. He submits that it is usually too late to apply for the striking out of a defence (or parts of it) at trial.

8. While the passages in the Cruise case may be obiter dictum, it is not suggested that they are wrong in principle. On the contrary, I find them to make good sense. There is no valid reason why useless or bad pleas should be allowed to stand. As regards defence counsel's second argument above, if this part of the application had been the only application, I may agree with his argument. However, this part of the application is brought together with the other challenges to the part of the Amended Defence set out below. For this reason, I am prepared to allow the plaintiff to proceed with this part of the application.

9. Having considered para. 7(i) - (iv) in the context of the Amended Defence, I agree with the plaintiff that they fall within the second category referred to in the Cruise case. They should accordingly be struck out.

Para. 7(v) - (vi) and 8

10. Para. 7(v) - (vi) and 8 aver that:

"...

(v) the Plaintiff did not keep its promise with TVB and Cable TV to broadcast the "Budget Forum" during the prime hours;

(vi) it is curious to note that in not keeping to the promise to broadcast the news department of the Plaintiff breached the agreement by not arranging for 'Budget Forum' to be broadcasted during the prime hours, the Plaintiff wished to increase its TV viewing ratings attract more [audience].

8. The defendants aver that the meanings of the Article as set out in para. 7(i) to (vi) herein before are true in substance and in fact.

Particulars

(a) The Plaintiff, TVB and Cable TV are the three local TV stations in Hong Kong.

(b) In the Plaintiff's letter addressed to‘東方報業集團有限公司’dated 14 March 2000, the Plaintiff acknowledged and confirmed the existence of an oral understanding/agreement made between the said 3 TV stations to take turn to produce the 'Budget Forum'.

(c) Both TVB and Cable TV had broadcasted the 'Budget Forum' on their TV stations during the prime hours of 7 p.m. to 11 p.m. on 8 March 2000.

(d) The Plaintiff only broadcasted the 'Budget Forum' on its TV station at about the hours of 11:45 p.m. on 8 March 2000.

(e) TVB, represented by its External Affairs Assistant Director, Mr Tsang Shing Ming (曾醒明), had confirmed to reporters at an interview given on or about 9 March 2000 that there was indeed an agreement or understanding reached for the 3 TV stations to broadcast the 'Budget Forum' during prime hours on 8 March 2000."

11. The plaintiff contends that this plea should be struck out, or withdrawn from the jury, because there is no proper evidence to support it.

12. The plaintiff's case is that the natural and ordinary meaning of the Article is that the plaintiff has breached the agreement it reached with the other two TV stations to broadcast the "Budget Forum" programme during prime hours: para. 6 of the Statement of Claim. The defendants' case, on the other hand, is that the natural and ordinary meaning of the Article is that the plaintiff did not keep its promise with TVB and Cable TV to broadcast the "Budget Forum" programme during prime hours: para. 7(v) - (vi) of the Amended Defence.

13. The plaintiff called 3 witnesses to testify at trial, 2 of these witnesses testified as to the agreement in question. Mr Chiu Ying Chun was in charge of the News Channel of the Cable TV and Mr Pao Wan Lung was in charge of the News and Public Affairs Department of the plaintiff at the relevant time. Both testified in brief that they were the ones involved in reaching the agreement in question and that there was only a gentleman's agreement among the 3 TV stations as to the responsibility for producing the "Budget Forum" programme in turn. There is a difference between Mr Chiu and Mr Pao as to:

(a) whether the Financial Secretary/Financial Secretary's office requested the programme to be broadcast at 8:30 p.m.;

(b) whether there was an express agreement that it was up to each TV station to decide when the programme was to be broadcast to the public. Mr Chiu recalled that there was such an agreement whereas Mr Pao said this matter was not mentioned.

14. On the other hand, only 1 of the defendants' 3 witnesses testified as to the agreement in question: Mr Tsang Shing Ming of the External Affairs Department of TVB. He testified in short that he heard from someone (the witness cannot recall clearly whether it was from a colleague or some other sources) that there was an agreement among the 3 TV stations that the "Budget Forum" programme was to be broadcast during the prime hours.

15. In view of the above, the plaintiff submits in this application that there is no admissible evidence to support the plea of justification. Thus, the plea should be struck out from the Amended Defence and the issue should be withdrawn from the jury.

16. In reply defence counsel relies on the following:

(1) there is inconsistency in the testimony of Mr Chiu and Mr Pao set out above. As a result, the accuracy of the witnesses' testimony may be doubted;

(2) Mr Leung Ka Wing, the representative of TVB who discussed (and later entered into) the gentleman's agreement with Mr Chiu and Mr Pao has not been called as a witness;

(3) in any event, by virtue of s. 47 of the Evidence Ordinance, Cap. 8. Hearsay evidence is now admissible in civil proceedings.

17. In relation to point (1) above, I do not see how inconsistency in the testimony of Mr Chiu and Mr Pao can assist the defendants (who bears the burden of proving the plea of justification) to establish the plea. Likewise, the absence of Mr Leung from the trial cannot help the defendants in that regard. I therefore do not find there is any substance in points (1) or (2) above.

18. As regards point (3) above, s. 47(1) Cap. 8 provides:

"In civil proceedings evidence shall not be excluded on the ground that it is hearsay unless -

(a) a party against whom the evidence is to be adduced objects to the admission of the evidence; and

(b) the court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice."

19. Plaintiff's counsel apparently does not consider it necessary to rely on this provision and no reference was made to it.

20. S. 47(2)(a) Cap. 8 stipulates:

"The court may determine whether or not to exclude evidence on the ground that it is hearsay -

(a) in the case of civil proceedings before a jury, at the beginning of the proceedings and in the absence of the jury ...."

21. Again, this provision was not relied upon by the plaintiff. It should be noted that Mr Tsang was called to testify under a subpoena. He has not made a witness statement beforehand. As a result, it was only when he actually testified that it became known that he learnt of the alleged agreement regarding the broadcast time from sources which are hearsay in nature.

22. Plaintiff counsel's objection to any reference to Mr Tsang's testimony before the jury in this application is premised on the following line of argument. S. 47 Cap. 8 is at most an amendment to the common law rule of evidence regarding hearsay evidence. The exclusion of hearsay or rumour sources for the purpose of a plea of justification (commonly called the repetition rule) is, however, based on legal policy. In support of the above argument, plaintiff's counsel refers firstly to Gatley on Libel and Slander (1998) 9 ed. Para. 11.4:

"The defendant must prove that the defamatory imputation is true. It is not enough for him to prove that he believed that the imputation was true, even though it was published as belief only ... The same is true if the defendant says that he is only repeating what others have said or that there is a rumour ... 'If you repeat a rumour you cannot say it is true by proving that the rumour in fact existed; you have to prove that the subject matter of the rumour is true.' ... the basis of this rule is to prevent an invitation to the jury to conclude that a statement based on a rumour or hearsay is thereby true or bears a less defamatory meaning than the original allegation. Its existence is confirmed by the fact that reports of judicial proceedings in open court are protected by the separate defence of privilege: if justification were applicable to reports of defamatory statements of witnesses privilege would be unnecessary." (emphasis supplied)

23. The reference to the basis of the repetition rule in Gatley is said to be supported by Stern v Piper and others [1996] 3 WLR 715. At page 725 of the Stern case, the UK Court of Appeal (Simon Brown LJ) said:

"The repetition rule ... is a rule of law specifically designed to prevent a jury from deciding that a particular class of publication - a publication which conveys rumour, hearsay, allegation, repetition, call it what one will - is true or alternatively bears a lesser defamatory meaning than would attach to the original allegation itself. By definition, but for the rule, those findings would otherwise be open to the jury on the facts; why else the need for a rule of law in the first place?"

24. Plaintiff's counsel also refers to Shah & another v Standard Chartered Bank [1999] QB 241, 263 in support of his argument that the repetition rule reflects a legal policy:

"I have come to the conclusion that the repetition rule applies in the manner described by Mr Browne for the reasons he gave ... I am satisfied that it is a rule of law which governs not only meaning, but also the pleading and proof of a defence of justification. Stern v Piper is a very good illustration, since the ultimate decision was that the defence of justification should be struck out. Moreover, I consider that the repetition rule reflects a fundamental cannon of legal policy in the law of defamation dating back nearly 170 years, that words must be interpreted, and the imputations they contain justified, by reference to the underlying allegations of fact and not merely by reliance upon some second-hand report or assertion of them." (emphasis supplied)

25. Lastly, plaintiff's counsel refers to the Shah case at pages 261-3 and 266-7 for the proposition that the repetition rule not only governs the assessment of the meaning of a publication complained of, it also limits both the permissible scope of the plea of justification of such a meaning and the admissibility of evidence in support of such a plea. I pause here to note that the Stern case and the Shah case were decided after the enactment of the 1968 Civil Evidence Act which contains provisions similar to s. 47 of Cap. 8.

26. Having considered the authorities referred to above, I agree with the plaintiff's submissions. In the premises, I do not consider Mr Tsang's testimony relating to how he learnt of the alleged agreement among the 3 TV stations to be admissible.

27. There is therefore no admissible evidence in support of the plea of justification. Para. 7(v) - (vi) and 8 of the Amended Defence should therefore be struck out.

28. Defence's counsel relies on Aspro Travel Ltd and others v Owners Abroad Group plc and others [1995] 4 ALL ER 728 Both the first instance court and the Court of Appeal in the UK refused to strike out the justification plea in that case. However, that decision turned on the facts in that case and this has been made clear at page 735 of the Aspro Travel case:

"The main point

The plea of justification is contained in para. 27 of the defence ... It is clear that the defendants do not seek to assert that in fact the plaintiff companies were insolvent. They merely assert that there were reasonable grounds to suspect the companies' financial viability. ... the only circumstance in which the justification will be of relevance is if the jury finds that the meaning of the words used was that there were reasonable grounds to suspect the financial viability of the companies and that this fact was defamatory of the plaintiff directors ..."

29. Indeed, if the facts in the Aspro Travel case had been different and that the justification plea had been related to facts rather than reasonable suspicion, it would probably have brought about a different result. It is pertinent to note that leading counsel for the defendants in the Aspro Travel case made the following concession:

"Mr Eady accepts that hearsay and rumour cannot constitute justification for an assertion of fact that the rumour was well founded and he does not seek to do so." (page 735 J)

Para. 9

30. Para. 9 of the Amended Defence pleads that:

"As to the part of the Article bearing the natural and ordinary meaning as set out in para. 7(vi) hereinbefore and which words are:‘亞視新聞部違反協議，不將「預算案論壇」安排在黃金時段播出，爭取更多的觀眾，令人好生奇怪。’

The Defendants aver that these are fair comment [sic] upon a matter of public interest, namely the conduct of the Plaintiff as the TV station responsible for production of the "Budget Forum" for broadcast to its viewers in Hong Kong, and upon the following facts.

Particulars of the Facts and Matters on which the comments were based

The Defendants repeat the facts and matters set out under the Particulars of para. 8 hereinbefore. In addition, the rating of 'Budget Forum' as broadcasted by TVB at prime hours on 8 March 2000 was average 26 points and at the highest 30 points whereas the regular program broadcasted by the Plaintiff at prime hours on 8 March 2000, namely 'A Date with A Vampire II' (我和殭屍有個約會II) just had the usual rating of 9 point."

31. It is undisputed that before the plea of fair comment can be established, the facts upon which the comment was made must be proved to be true: see also Gatley, para. 12.14.

32. Since I have found that there is no admissible evidence to support the underlying facts, namely, the plaintiff had breached the agreement in question (alternatively as the defendants put it the plaintiff has not kept its promise), the plea of fair comment is bound to fail. Para. 9 of the Amended Defence should be struck out.

Withdrawing the Issues from the Jury

33. It is also undisputed that issues may be withdrawn from the jury in accordance with the test laid down in Oriental Press Group Ltd v Next Magazine Publishing Ltd HCA 11900 of 1995, that is:

(1) it is appropriate to do so if there is insufficient evidence for the issue in question to be placed before the jury;

(2) whether there is sufficient evidence for the above purpose is to be approached on the basis of the evidence which most favours the respondent of the application (the Defendants in this application).

34. Applying the test to this application, and insofar as it is necessary to do so, I find that there is insufficient evidence for the pleas of justification and fair comment to be placed before the jury. These pleas are therefore withdrawn from the jury.