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

________________________

________________________

________________________

J U D G M E N T

________________________

A.  Introduction

1.  This is a libel claim brought by the plaintiff against the defendants in respect of an article written in Chinese titled “亞視都有人講波? (There is someone on ATV who talks about football?)” (the “Article”) published in the column of “和勝和負 (Draw Win Draw Lose)” (the “Column”) on page AA8 of the 5 July 2014 issue of Apple Daily (the “Newspaper”).

2.  The plaintiff is a businessman and was formerly a member of the Legislative Council.  He has been described as “金牌莊家” (which can be translated as “Gold Medal Dealer”) by the media in connection with his works as financial/investment adviser.

3.  The 1^st defendant is and was at all material times the registered proprietor and publisher of the Newspaper, which is a daily Chinese newspaper with a wide circulation and readership in Hong Kong.

4.  The 2^nd defendant was at all material times the chief editor of the Newspaper.

5.  The 3^rd defendant was at all material times the writer of the Column and the author of the Article.

6.  In 2014, the plaintiff and Michael Chugani co‑hosted a current affairs talk show programme, “Views on Hong Kong (“香江怒看”)”, broadcast by ATV.  On 10 June 2014, at episode 44 of the programme (the “TV Episode”), the plaintiff spoke of his views on gambling strategy in relation to the 2014 World Cup and said that he had a formula which should be sure win (the “Formula”).

7.  According to the Formula mentioned by the plaintiff at the TV Episode, a punter should always bet on “draw”.  If he loses his first bet, he should double his wager in his second bet.  If he loses his second bet, he should triple his initial wager in his third bet.  If he loses again, he should double up his bet each time so that his wagers for the fourth, fifth, sixth, seventh, eighth bets should be 6, 12, 24, 48, 96 times of his initial wager respectively.

8.  On 5 July 2014, the Article which mentioned the plaintiff and the Formula was published in the Newspaper.  The Article and its certified translation are annexed hereto as Annex 1 and Annex 2 respectively.

9.  The words in the Article complained of by the plaintiff, which are contained in the 4^th paragraph of the Article, are as follows:‑

「...又咁啱詹培忠做咩《香江怒看》嘉賓，仲要教人點賭至有錢贏（喺收視接近0嘅地方講呢啲！）。講出嚟大家一定恥笑：...而呢條傻佬仲要係詹培忠,你信佢一成都死。... 如果照條懵佬咁買，未到16強，已經要懸樑。」 (the “Words”)

10.  The certified translation of the Words are as follows:‑

“...So happened Chim Pui Chung was the guest in a show called ‘Views on Hong Kong’, he even taught people how to win money betting (on football) ((he) talked about this in a (channel) which gets almost zero rating!). When it was spoken out, all of us will definitely tease at (him). ... And that fool is Chim Pui Chung, it is deadly even if you believe one‑tenth of (the words said by) him...if you had placed (bets) following (the strategy suggested by) this stupid guy, you would already hung yourselves before the round of 16.”

11.  There are disputes between the parties on what the natural meaning of the Words was and whether such meaning was defamatory of the plaintiff.  In addition, the defendants also rely on the defences of justification, fair comment and qualified privilege.

12.  There is only one witness from each side, namely the plaintiff and the 3^rd defendant.  I will deal with their evidence while I set out my analysis on each of the issues raised at this trial.

B.  Were the words defamatory of the plaintiff?

B1.  Meaning of the words

13.  The principles for determining the meaning of an alleged defamatory article are not in dispute.  They are set out by Sir Thomas Bingham MR in Skuse v Granada Television Limited [1996] EMLR 278 (at 285), Sir Anthony Clarke MR in Jeynes v New Magazines Ltd [2008] EWCA Civ 130 (at §14), and also Lok J in the relatively recent Hong Kong decision of Bawang International (Group) Holding Ltd & Anor v Next Magazine Publishing Limited (HCA 19190/2010, 23 May 2016, unrep) (at §§25‑34). 

14.  In summary:-

(a) The court in determining the meaning has to construe the article according to their natural and ordinary meaning, and the judge (or jury) has to ascertain the single meaning which the article sued upon would convey to the mind of an ordinary, reasonable and fair‑minded reader. The intention of the publisher is irrelevant.

(b) The hypothetical reader is taken to be representative of those who would read the publication in question.  The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines.  He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non‑defamatory meanings are available.  Over‑elaborate analysis is best avoided.

(c) The article must be read as a whole, and any ‘bane and antidote’ taken together.  The context and the circumstances of the publication must be taken into account.  In reading the entire article in its context, the court will also bear in mind the general tenor of the entire article.

(d) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation.  It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.

15.  Applying the above principles, since the Article was written in Chinese with colloquial Cantonese expressions and published in a Chinese newspaper published in Hong Kong, I should therefore ascertain the natural and ordinary meaning of the Words in the Article as an ordinary, reasonable and fair‑minded reader who understands Chinese and local Cantonese expressions.

16.  In the Statement of Claim, it is pleaded that the Words in the Article in their natural and ordinary meaning meant or understood to mean[1]:‑

(a) all of us will definitely tease at the plaintiff on what he talked about football betting at the ATV show “Views on Hong Kong” mentioned in the Apply Daily;

(b) the plaintiff was and/or still is a fool;

(c) the plaintiff cannot be believed as it is deadly to you to believe in even one-tenth of him; and

(d) the plaintiff was and/or still is stupid.

17.  In the Defence, the defendants deny the Words bore or were understood to bear those meanings alleged by the plaintiff[2].

18.  In his written submission, Mr Jeffrey Li, Counsel for the defendants, puts much emphasis on the point that the Words must be construed by reference to the entirety of the Article in its context, not just the Words extracted by the plaintiff.  Mr Li pointed out that the Column in which the Article was published is a commentary column focusing on discussion of football matches and their results. 

19.  On this basis, Mr Li submitted that the Words in their proper context should be understood as a critique of the Formula suggested by the plaintiff (rather than a comment on the personality or character of the plaintiff) and they do not carry any negative connotations against the plaintiff.  According to Mr Li, a reasonable reader would understand the Words to bear the meaning that the Formula is laughable, the plaintiff is a joker in promoting it and he should not be taken seriously[3].

20.  Despite Mr Li’s commendable effort, I disagree with his submissions.

21.  In my judgment, the tenor of the Article goes far beyond a mere critique of the Formula.  It carries with it negative connotations against the plaintiff.  I say this for a few reasons:‑

(a) The title and the first full sentence of the 4^th paragraph of the Article express in highly sarcastic tone that it is surprising to see the plaintiff teaching gambling strategy at a television programme at ATV, which has a close-to-zero rating.

(b) The second full sentence of the 4^th paragraph of the Article then goes on to say that if the Formula is read out, everyone would “恥笑 (tease at)”.  Although there is dispute as to whether this sentence refers to the Formula or the plaintiff (which I will address later), the use of the word “恥笑 (tease)” demonstrates that the Article is not meant to be a measured analysis of the fallacy of the Formula.  Rather, it seeks to hold someone or something up to ridicule or even contempt.

(c) More importantly, after questioning why someone would openly share a sure‑win formula, the Article goes on to say “而呢條傻佬仲要係詹培忠,你信佢一成都死(and that fool is Chim Pui Chung, it is deadly even if you believe one-tenth of (the words said by) him)”.  This part of the Article, in my judgment, conveys a clear message that the Formula is doubly incredible by reason that it comes from the plaintiff, who is a fool.

(d) Finally, at the last sentence of the 4^th paragraph of the Article, it states that “如果照條懵佬咁買，未到16 強，已經要懸樑 (if you had placed (bets) following (the strategy suggested by) this stupid guy, you would have already hung yourselves before the round of 16)”.  Again, this sentence focuses on the consequence that would flow from following the stupid guy (i.e. the plaintiff), but not the Formula.

22.  Mr Li also argued that the meaning of the Words used in the Article must be gauged by taking into account the “bane and antidote”: see Gatley (12^th ed) §3.31.  He submitted that the sting of the Words is negated by what is stated at paragraph 5 of the Article.  With respect, I am unable to accept Mr Li’s submission.

23.  Paragraph 5 of the Article contains the suggestion made by the 3^rd defendant (as author of the Article) that punters may consider betting on “draw” on football matches starting from the quarter‑final stage.  It does not at all remove the sting of the Words that the plaintiff is a fool or stupid in promoting a betting formula which would lead to substantial losses.  It is one thing to suggest the punters to bet on draw in certain matches, but it is quite another thing to advise them to bet on draw in each and every game in accordance with the Formula.  Nothing said at paragraph 5 of the Article waters down the imputation of the Words.

24.  Applying the above principles, I am satisfied that subject to one small qualification, the pleaded meanings relied upon by the plaintiff (as identified at paragraph 16 above) are borne out by the ordinary and natural meaning of the Words and they are referable to the plaintiff.

25.  The small qualification that I have relates to the 3^rd pleaded meaning relied upon by the plaintiff (as set out at paragraph 16(3) above).  In this regard, I agree with Mr Li that the expression “信佢一成都死 (it is deadly to you to believe in even one-tenth of him)” should not be interpreted literally.  What it means in its context is simply that the plaintiff cannot be believed.

B2.  Are the words meant to be serious?

26.  Mr Li forcefully argued that the Words are not defamatory to the plaintiff because they are chaff and banter and that no one would take them to be meant seriously.

27.  As a matter of law, the defamatory imputation must meet the necessary level/threshold of seriousness in order to be actionable. In deciding whether the threshold of serious has been met, the court is required to take into account “the nature and inherent gravity of the allegation, whether the publication was oral or written, the status and number of publishes and whether the allegations were believed, the status of the publisher and whether this makes it more likely that the allegation will be believed, and the transcience of the publication”: see Gatley (12^th ed) §2.4.

28.  Where the imputation of the words, when put upon a reasonable reader, would be understood as made in jest, the words would not be actionable: see Gatley (12^th ed) §3.36; Lewis v Daily Telegraph [1964] AC 234 (HL) at 271. 

29.  Mr Li submitted that in assessing whether the imputation of the Words in this action would be taken seriously by an ordinary, reasonable and fair‑minded reader, this court needs to bear in mind the following factors:‑

(a) the Article was published in the Column, being a commentary column focusing on football;

(b) the language used in the Article was informal Chinese expressed in a casual, colloquial and low‑brow manner; and

(c) the title and the language used in the Article show that the Article was meant to be lively and light‑hearted.

30.  By reason of the above factors, Mr Li submitted that an ordinary and reasonable reader would not take the contents of the Article seriously.

31.  In this regard, Mr Li drew my attention to the Australian authority of Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564 where the court held (at §§22‑23) that an article stating that the plaintiff lack of success in his career as a football coach was due to his lack of adequate communication and intimacy skills resulting from his deprived childhood would be understood by ordinary reasonable reader as “an absurd joke”.

32.  In my view, whether certain words in an article would or would not be taken seriously by an ordinary and reasonable reader depend on the facts of each case.  The outcome of previous decisions offers not much guiding value.

33.  In the present case, I agree that those factors highlighted by Mr Li are relevant factors which I need to take into account, and which I do.  However, I also need to take into account the actual wording used in the Article and the message that an ordinary reasonable reader would understand it to convey.  I accept that words such as “傻佬 (fool)” and “懵佬 (stupid guy)” are colloquial expressions frequently used by the locals, and that they are not necessarily meant to be disparaging.  However, in the context of the discussion in the Article, I am satisfied that an ordinary, reasonable and fair‑minded reader would understand the Words to convey the message that punters should not follow the Formula since the plaintiff, who promoted the Formula, was foolish, stupid and unreliable.  This is a message that goes beyond an absurd joke, or an attempt to poke fun at the plaintiff.

34.  As noted by the learned authors of Gatley (12^th ed) at §3.36, “the fact that words are intended by way of jest does not of itself prevent them being actionable for it is not the intention of the publisher that matters but the interpretation that would be put upon the words by the reasonable [reader].  If he would understand them as made in jest they are not actionable, but ‘if a man in jest conveys a serious imputation, he jests at his peril’”.  I am satisfied that the Words convey a serious enough imputation against the plaintiff which renders them actionable by the plaintiff.

B3.  Are the words defamatory?

35.  There is no dispute that “a defamatory imputation is one to the claimant’s discredit, or which tends to lower him in the estimate of others, or causes him to be shunned or avoided, or exposes him to hatred, contempt or ridicule”: see Oriental Press Group Ltd v Inmediahk.net Ltd [2012] 2 HKLRD 1004 per DHCJ Peter Ng SC (as he then was) at §12.

36.  Mr Li submitted that that the Words are not defamatory because the Words merely target at the Formula, but not the plaintiff, and that the expressions such as “傻佬 (fool)”, “懵佬 (stupid guy)” and “你信佢一成都死 (it is deadly even if you believe one-tenth of him)” are words used in jest and to add a touch of colloquialism to the Article. 

37.  For those reasons explained above (in particular, paragraphs 21 and 33 above), I am unable to accept Mr Li’s submission.

38.  I disagree with Mr Li’s suggestion that the Words were just “a heartless attempt at poking fun at the plaintiff for promoting the Formula”[4].  On the contrary, I find that the Words have the effect of disparaging the plaintiff and holding him up to ridicule or contempt. 

39.  Although it is strictly speaking not relevant, it is noted that when the 3^rd defendant was cross‑examined, he accepted (quite fairly) that it would cause the plaintiff embarrassment within his circles by calling him a fool.  This, to a certain extent, lends support to my above finding.

40.  Mr Li also submitted that since the plaintiff admitted under cross‑examination that the Formula had nothing to do with his profession as a businessman and financial/investment adviser, the ridicule about his Formula contained in the Article would not be defamatory of the plaintiff.  I disagree.

41.  In order to be defamatory, it is not necessary for the imputation to be directed at the profession or calling of the claimant.  I cannot see any reason why this has to be so.  In fact, the law is that the words are actionable if they impute to the claimant some quality which would be detrimental to the successful carrying on of his office, profession or trade: see Gatley (12^th ed) §2.35.

42.  In the present case, the plaintiff as a businessman and financial/investment adviser is expected to be trustworthy and has sound judgment in making business decisions or giving advice.  To call the plaintiff a fool and a stupid guy and to say that his betting formula is so incredible that anyone following it is bound to suffer huge loss, in my judgment, have the effect of discrediting the plaintiff, lowering him in the estimation of the others, and also exposing him to ridicule or even contempt.

43.  Mr Li further submitted that the plaintiff’s reputation in the public eye is also relevant.  He submitted that since “the plaintiff is known to be a man for making outrageous comments, it is general knowledge that no one takes him seriously”[5].

44.  While the plaintiff in the trial did not dispute that he had previously made some remarks that the defendants describe as controversial or even offensive[6], I cannot see how this fact can go so far to undermine the plaintiff’s reputation to the extent that “no one takes him seriously”.  It was in fact frankly admitted by the 3^rd defendant upon cross‑examination that the plaintiff is a celebrity and that none of those controversial or offensive remarks has anything to do with investment or gambling.  Those remarks, therefore, would not impugn upon the plaintiff’s reputation as a businessman, financial adviser and investment adviser.  Hence, I also reject the above submission of Mr Li.

45.  As there is no dispute that the Article was published by the defendants, in light of my above finding that the Words in the Article were defamatory of the plaintiff, the plaintiff will succeed in his defamation claim unless the defendants can establish one or more of their pleaded defences.

C.  Defence of justification

C1.  Defendants’ pleaded case on justification

46.  The importance of proper pleadings for the defences of justification and honest comment (also known as fair comment) has been stressed by the Court of Final Appeal in Mak Shiu Tong v Yue Kwok Ying & Anor [2005] 1 HKLRD 33 (at §§22‑24, 42‑44).

47.  When relying on the defence of justification, a defendant is required to clearly specify the meaning(s) which he seeks to justify: see Mak Shiu Tong (at §§22‑23).  It is also necessary for the defendant to give details of the matters on which he relies in support of his plea of justification: see Mak Shiu Tong (at §§43‑44); Gatley (12^th ed) §27.11.

48.  Thus, it is only proper for me to analyse the defendants’ case by reference to their Defence, which was not settled by Mr Li.

49.  The defendants’ plea of justification is pleaded at paragraph 11 of the Defence, which reads as follows:‑

“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.

Particulars of Justification

(1) On an episode of香江怒看 “Views of Hong Kong” broadcasted on Asia Television Limited on or around 10 June 2014, a programme with close to a zero audience rating, the plaintiff, as the co‑host of the programme, disclosed and/or taught its audience betting formulae with a close to 100% win rate for betting in the 2014 FIFA World Cup.”

50.  At this juncture, I wish to make some initial observations in relation to the defendants’ pleadings on justification:‑

(a) The 1^st and 2^nd alleged meanings relied upon by the defendants under the “Particulars of Meaning” are by and large statements of opinion.  In my view, whether a person doing something (which is a statement of fact) should or should not be taken seriously, or must or must not be a thoughtless joker, is a statement of opinion.

(b) Further, while the viability of the Formula appears to be in issue, there is (as fairly accepted by Mr Li during his oral closing) no particulars given in support of a case that the “formula” was unviable or that punters following such “formula” would get into financial trouble.  The only particular given is the fact that the plaintiff taught the audience a “formula” with a close to 100% win rate in the “Views of Hong Kong” broadcasted on ATV.

51.  I will explain the significance of these observations when I deal with each of the elements of the defence of justification.

52.  In considering the defence of justification, this court has to determine (see Bawang at §78):

(a) whether the Words bear the Lucas‑Box meanings[7] as contended for by the defendant;

(b) if so, whether as a matter of fact that any or all of the Lucas‑Box meanings is true; and

(c) whether the proved meanings are sufficient to meet the libellous sting conveyed by the Words in the Article.  It is only when each of the stings is properly met with true facts when the defence of justification succeeds.

C2.    Lucas‑box meanings relied upon by the defendant

53.  I have made some findings regarding the meanings of the Words in the Article in Section B above.  I now need to decide whether the Words also bear the alleged meanings contended for by the defendants.

54.  In their 1^st and 2^nd alleged meanings, the defendants allege that the Words convey the meaning that “a person claiming to have a close to 100% win betting formulae should not be taken seriously, and/or must be a joker and/or thoughtless”.

55.  I note that just by looking at the Article itself, there is no express statement stating that the betting formula taught by the plaintiff is one having“a close to 100% win rate”.  The closest statement that I can identify is the description of “發達橋 (the winning strategy)”.  In my view, the use of the expression of “發達橋 (the winning strategy)”, without more, does not denote that the strategy is a formula with a close to 100% win rate.

56.  Quite on the contrary, in the Article, the 3^rd defendant described the Formula taught by the plaintiff as something that everyone would “恥笑 (tease at)”, and that punters would be in financial trouble if they bet in accordance with the Formula.  It is not stated in the Article that the plaintiff (or anyone) had claimed the Formula to be one with “a close to 100% win rate”.

57.  As I understand it, the reason why the defendants say that the Formula mentioned in the Article should be understood as one which the plaintiff claimed to “have a close to 100% win rate” is because it had been so described by the plaintiff at the TV Episode[8].  This is perhaps the reason why what was said by the plaintiff at the TV Episode was pleaded as the (only) particular under the “Particulars of Justification”.

58.  The defendants’ argument, however, is problematic because it presupposes that an ordinary and reasonable reader reading the Article must also have watched the TV Episode.  I cannot see any basis for making such assumption.  If I am required to make any assumption, the assumption must be that an ordinary and reasonable reader would in all likelihood have not watched the TV Episode since such episode, according to the defendants, had a close‑to‑zero audience rating.

59.  Further, the law is that where a defendant seeks to rely on extrinsic facts to show that words defamatory in their natural and ordinary meaning in fact did not convey any defamatory imputation, the defendant must show that all persons to whom the words were published knew such extrinsic facts, since the plaintiff would have been defamed to those persons who did not know such extrinsic facts: see Gatley (12^th ed) §3.23.  Bearing in mind its underlying rationale, the same principle should, in my view, apply when a defendant seeks to support his alleged meaning of the words by reference to some extrinsic facts in running his defence of justification and/or honest comment.

60.  For the above reasons, I do not think it is correct for this court to take into account what was said by the plaintiff in determining the meaning(s) conveyed by the Article.

61.  In any event, even if this court is to take into account what was said by the plaintiff about the Formula at the TV Epi sode, I am still not persuaded the Words bore or were understood to bear the 1^st and/or 2^nd pleaded meanings relied upon by the defendants.

62.  As explained in Section B below (in particular, paragraphs 21 and 33 above), the tenor of the Article goes far beyond a mere critique of the Formula.  Rather, it carries negative connotations against the plaintiff.  The choice of the word conveys the message that not only the Formula itself is laughable, and that it is doubly incredible since it comes from the plaintiff, who is a fool and is untrustworthy. 

63.  Thus, I am unable to accept the defendants’ contention that the meanings of the Words are that “a person claiming to have a close to 100% win betting formulae should not be taken seriously, and/or must be a joker and/or thoughtless”.  In my view, the 1^st and 2^nd pleaded meanings contended for by the defendants are some clear understatements which gloss over the gravamen of the defamatory imputation of the Words.

64.  As to the 3^rd pleaded meaning relied upon by the defendants (i.e. “punters who follow the formulae might get into trouble financially”), I also find it to be an understatement.

65.  The wording used in the Article goes much further than suggesting that punters following the Formula might get into trouble financially.  The Article expressly states that punters cannot believe in even one‑tenth of the plaintiff (or what the plaintiff say).  Further, towards the end of the relevant paragraph of the Article, it expressly states that punters following the Formula would have hung themselves before the round of 16.  I understand that these are rather colloquial and dramatic expressions, but the underlying message is clear: punters would (as opposed to might) have been ruined financially had they followed the Formula before the round of 16.

66.  For the above reasons, I reject the defendants’ case that the Words in the Article bear those Lucas‑Box meanings pleaded by the defendants under paragraph 11 of the Defence.

C3.  Whether the defendants’ alleged meanings are justified?

67.  In view of my finding that the defendants fail to make out their case that the Words bear any of the Lucas‑Box meanings pleaded in the Defence, they also fail to establish their defence of justification.  Strictly speaking, it is therefore not necessary for me to determine the issue as to whether those meanings are as a matter of fact true.  That said, for the sake of completeness, I propose to set out my observations and rulings on this issue.

68.  As I mention at paragraph 50(b) above, there is no particular given by the defendants in support of their defence of justification that the Formula was unviable or that punters following the Formula would get into financial trouble.  In the absence of properly pleaded particulars of justification, this court is at a loss as to how the defendants would like to run their case and what facts the defendants would like to rely on in support of their defence of justification.

69.  Despite the said defect in the pleadings of justification, both Mr Leung and Mr Li cross‑examined the other side’s witness on the question regarding the viability of the Formula.  I did not disallow those questions raised by counsel because they are potentially relevant to the issue of honesty in the context of the defence of honest comment.  This, however, does not cure the defect in the pleadings of justification mentioned above.

70.  In his oral testimony, the plaintiff was adamant that the Formula works.  Mr Li suggested to the plaintiff that for every result other than “draw”, a punter following the Formula would suffer a loss and would need to double up his wager for “draw” in his next bet.  The plaintiff accepted what Mr Li said but emphasized that the punter would make a gain as soon as a “draw” occurs at some stage.  Mr Li then suggested to the plaintiff that the wager for each bet would keep on increasing until a draw occurs. Again, the plaintiff accepted what Mr Li said but stressed that as soon as the punter has enough money, he would make a gain 50% of his total bet as his winning when he hits a “draw”.

71.  Although the 3^rd defendant in his witness statement said that “the Formula is not a winning system and does not work” and gave some reasons to explain why he said so[9], he accepted upon cross‑examination that the Formula theoretically works, but that the punter would need to bet strictly in accordance with the Formula and to have a deep pocket to increase his wagers if a “draw” only came about after many games.

72.  In his witness statement, the 3^rd defendant said that during the 2014 FIFA World Cup, the first “draw” only came about at the 13^th match of the tournament, and if the punter’s original bet was HK$20, he would suffer a combined loss of $81,900 by betting in accordance with the Formula in the first 12 matches[10].  The 3^rd defendant, however, did not go on to say how much gain the punter would make if he continued to place his bet in the 13^th game in accordance with the Formula.  In fact, as fairly accepted by Mr Li in his oral closing, there is in fact no evidence in support of the assertion in the Article that a punter would suffer loss, let alone huge loss, if he was to bet in accordance with the Formula up to the stage of final 16 of the tournament.

73.  In light of the oral testimonies of both the plaintiff and the 3^rd defendant, it appears that both actually agreed that the Formula theoretically works provided that a punter follows it strictly and has sufficient financial resources to carry on betting on “draw” until a “draw” result occurs.  It is for this reason that the 3^rd defendant doubts whether the Formula works in reality.

74.  In both of his written[11] and oral closing, Mr Li submitted that it is simply common sense that the Formula is not a sure‑win formula and that it does not work.  I do not think it is correct for this court to decide this issue by reference to common sense when the parties’ respective witnesses effectively agreed that the Formula does theoretically works and will work if the punters have deep enough pocket to gamble in accordance with it.  The suggestion that this court can determine the issue by common sense is particularly unsatisfactory where no particular is given in the pleadings to articulate clearly the defendants’ objections to the Formula.

75.  In the circumstances, even putting aside the defect in the defendants’ failure to plead particulars in support of their case on the viability of the Formula, I find that the evidence before this court does not support the singularly most important factual assertion in the Article that if a punter placed his bets in accordance with the Formula, he would suffer huge loss before the tournament reached the stage of final 16.  Nor does such evidence support a case that the Formula does not work categorically as a matter of fact.

76.  In light of my above finding, I cannot see how the defendants can show that the 3 pleaded Lucas‑Box meanings (which have been rejected by me in any event) are true as a matter of fact. 

77.  In passing, I wish to add some further observations in relation to the 1^st and 2^nd pleaded Lucas‑Box meanings relied upon by the defendants.

78.  As I have pointed out at paragraph 50(a) above, I am inclined to regard them as statements of opinion, rather than statements of fact.

79.  As a matter of law, whilst it is permissible to defend an opinion under justification, a defendant choosing to do so must prove that the opinion is in fact true: see Gatley (12^th ed) §11.20.  Some statements of opinion, however, are value judgments which cannot be said true or false: see Cruddas v Calvert & Ors [2013] EWHC 2298 (QB) at §56.

80.  In my view, the 1^st and 2^nd pleaded Lucas‑Box meanings relied on by the defendants are such statements of opinion which involve such value judgments and which cannot be said to be true or false.  Whether someone would or would not regard a person claiming to have a close to 100% win betting formula as a joker, a thoughtless person, or a person who cannot be taken seriously is a matter of personal judgment. Different people may come to different views.  I am not quite able to see how the defendants can justify such statements of opinion as true in fact.

81.  For the above reasons, the defence of justification fails.

D.  Defence of honest comment

D1.  Defendants’ pleaded case on honest comment

82.  As mentioned above, proper particulars are required for the defence of honest comment. 

83.  Where honest comment is pleaded, the defendant must spell out, with sufficient precision, the comment which the defendant will seek to say attracts the defence: see Mak Shiu Tong (at §24).  The defendant must give details of the matters on which he relies in support of his case that such comment is honest comment on a matter of public interest.  He must also give particulars of all the facts upon which the comment is based: see Catley (12^th ed) §27.19.

84.  Thus, similar to my analysis in relation to the defence of justification, I would analyse the defendants’ case by reference to their pleadings.

85.  The defence of honest comment is pleaded at paragraph 13 of the Defence, which reads as follows:‑

“Further and/or alternatively, in so far as the Alleged Defamatory Words in their proper context made or contained the following comments or expressions of opinion, namely:‑

(1) The programme香江怒看 “Views of Hong Kong”, a programme with close to a zero audience rating, should not be taken seriously.

(2) The plaintiff, who claims to have a close to 100% win betting formulae, should not be taken seriously.

(3) The plaintiff, who claims to have a close to 100% win betting formula, must be a joker and/or thoughtless.

(4) Punters should not follow the betting formulae.

(5) Punters should be warned of the risk associated with gambling.

The defendant contends that the said comments or expressions of opinion constituted fair and honest comments on matters of public interest, namely, the public should be warned of risks associated with gambling.

Particulars of Public Interest

These are matters of grant public and general concern and interest in that there had been a significant increase in gambling during the FIFA 2014 World Cup

Particulars of Facts Upon Which the Comments are Based

The defendant repeats all the particulars pleaded under “Particulars of Justification” of paragraph 11 herein.”

86.  While I would further elaborate my analysis of the defendants’ case on honest comment below, I wish to make some preliminary observations in relation to the defendants’ pleadings:‑

(a)  My first observation is that the 1^st, 4^th and 5^th comments pleaded by the defendants appear to me to be rather inconsequential.  Even assuming that the defence can be made out in relation to these comments, they do not meet the libellous stings conveyed by the Words in the Article.

(b)  Second, the only factual matter which the defendants seek to rely to base the comments is the fact that the plaintiff disclosed or taught the Formula at the TV Episode which had a close‑to‑zero audience rating.  The defendants did not seek to base the comment on any fact concerning the viability or practicality of the Formula.

(c)  Third, the only public interest relied on by the defendants is the public interest of warning the public of the risks associated with football gambling.  It is not suggested by the defendants that there is any public interest in passing comment on the personality, character or other personal attributes of the plaintiff.

87.  I would explain the significance of these preliminary observations when I come to discuss each of the comments relied on by the defendants. At this juncture, I would like to set out the relevant legal principles relating to the defence of honest comment.

D2.  The legal principles

88.  The five essential ingredients of the defence of honest comment (also known as the defence of fair comment) are summarized by Lord Nicholls NPJ in Albert Cheng & Anor v Tse Wai Chun (2000) 3 HKCFAR 339 (at 347C‑348A):‑

“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, 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 (1923) 24 SR (NSW) 20, 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, 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.

[Fourth], 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 AER 449, 461, commenting on an observation of Lord Esher MR in Merivale v. Carson (1888) 20 QBD 275, 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. Fairfax (1942) 42 SR (NSW) 171, 174.

These are the outer limits of the defence. The burden of establishing that a comment falls within these limits, and hence within the scope of the defence, lies upon the defendant who wishes to rely upon the defence.” (emphasis added)

89.  In relation to the above essential elements of the defence, I wish to make some further observations on some of these elements.

90.  Regarding the first element (i.e. a comment on a matter of public interest), my attention was drawn to the observation of Lord Denning MR in London Artists Ltd v Littler [1969] 2 QB 375 (CA), at 391B, that “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 to others, it is a matter of public interest”.

91.  As to the second element (i.e. the comment must be recognisable as comment), Mr Li referred me to the judgment of Kwan JA in Centa‑City Index Co Ltd & Ors v Hong Kong Economic Journal Co [2016] 4 HKC 53 (CA), at §§33‑40.

92.  In short, the law is that:‑

(a) the ultimate determinant of whether the words are comment or fact is how they would strike the ordinary, reasonable reader after taking into account all the circumstances (at §34); 

(b) a statement which is potentially one of fact may be one of evaluative opinion depending on the context (at §36);

(c) thus, where the statements in question are derived as inferences or conclusions suggested by the material set out in the articles, they are more likely to be construed as comment or statements of opinion, particularly when they are statements expressed in judgmental terms (at §39); and

(d) statements made in editorials or leaders are more likely to be regarded by readers as comment than matter in news stories, although this is not conclusive (at §40).

93.  As to the third element (i.e. the comment must be based on facts which are true or protected by privilege), it is of some importance to note that the defence is only available when the facts that are said to underpin a comment are true or privileged.  Hence, “comments based on matters of opinion only, which may or may not be true, affords no defence”: see Gatley (12^th ed) §12.15.

94.  The requirement that the defence is only available when the comment is one based on facts which are true or privileged, but not on an opinion, is also to a certain extent linked with the requirement of pertinence under the fifth element of the defence (i.e. the comment must be one which could have been made by an honest person).

95.  Notwithstanding the generosity of the objective limits of honest comment, as noted by Lord Nicholls NPJ in the Albert Cheng case (supra, at 347I), any comment which could have been made by an honest person “must be germane to the subject matter criticized” such that “dislike of an artist’s style would not justify an attack upon his morals or manners”: see also Gatley (12^th ed) §12.29.

96.  Hence, a commentator who may legitimately comment on a certain event, which is a matter of public interest, may not necessarily be entitled to attack on the personality, character or some other attributes of the person(s) involved in such event. 

97.  This court has to scrutinize whether the latter type of comment satisfies the requirement of pertinence, whether it is based on true or privileged facts, and whether it is on a matter of public interest. The public interest which justifies comment on a certain event may not necessarily be wide enough to justify comment on the attributes of the person(s) involved in such event.

98.  I now examine each of the pleaded comments relied upon by the defendants in accordance with the above legal principles.

D3.  Discussions

Public interest

99.  To start with, I would examine the defendants’ case on the element of public interest.

100.  The matter of public interest pleaded by the defendants is that “the public should be warned of the risks associated with gambling”.

101.  Applying the test propounded by Lord Denning MR in London Artists Ltd (supra), I am prepared to accept the defendant’s case that there is public interest in warning the public of the risks associated with gambling.

102.  Mr Leung submitted that the Article was not a matter of public interest.  Mr Leung pointed out that the Article does not contain any warnings of risks associated with gambling; on the contrary, it contains the 3^rd defendant’s own recommendation of the gambling strategy.

103.  In my view, Mr Leung’s submission missed the point.  The point is whether the alleged subject matter of the pleaded comments is a matter of public interest.  The fact that the no warning can be founded in the Article does not mean that “warning the public of the risks associated with gambling” is not itself a matter of public interest.

104.  Mr Leung further submitted that since the TV Episode, according to the Article, was one with close‑to‑zero audience rating, the 3^rd defendant therefore had absolutely no intention to inform the public of the risks of gambling associated with the Formula taught by the plaintiff at the TV Episode.  With respect, I disagree.

105.  Although it is not disputed that the TV Episode had a very low audience rating, there was still a viewership.  Further, there is also the possibility that those who watched the TV Episode might spread the Formula around to those who had not watched it.  I am not prepared to accept that because of the low audience rating of the TV Episode, the Formula mentioned by the plaintiff at it does not give rise to a matter of public interest.

106.  For above reasons, I am satisfied that warning the public of the risks associated with gambling is a matter of public interest.

107.  That said, I have not lost sight of the fact that in deciding whether the defence is made out in relation to each of the pleaded comments, I am required to bear in mind the scope of the matter which is said to be of public interest.  A comment is capable of attracting the defence of honest comment only if it is a comment on a matter of public interest.

1^st pleaded comment

108.  The 1^st pleaded comment relied upon by the defendants is that “the programme香江怒看 “Views of Hong Kong”, a programme with close to a zero audience rating, should not be taken seriously”.

109.  As mentioned above, this comment does not go to the libellous sting of the Words against the plaintiff.  Even if the defence is made out in relation to this comment, I cannot see how it can assist the defendants.

110.  In any event, I cannot see any correlation between this comment and the matter of public interest relied upon by the defendants. Hence, the defence of honest comment is not made out in relation to this comment.

2^nd and 3^rd pleaded comments

111.  The 2^nd and 3^rd pleaded comments relied upon by the defendants are that “the plaintiff, who claims to have a close to 100% win betting formula, should not be taken seriously, and/or must be a joker and/or thoughtless”.  Since they are closely related, it would be conveniently for me to deal with them in one go.

112.  At the outset, applying the observations of Kwan JA in Centa‑City (supra), I think Mr Li is right in saying that the statements in the Article would be understood by an ordinary and reasonable reader to be comments rather than facts.

113.  That said, my difficulty of accepting the defence is that I cannot see how those comments can be said to be comments on the matter of public interest relied upon by the defendants.

114.  The only matter of public interest relied upon by the defendants is warning the public of the risks associated with gambling. Subject to their satisfying the other requirements of the defence, the defendants are entitled to comment on the Formula for the purpose of warning the public of the risks involved in gambling, whether in general or in accordance with the Formula.

115.  This, however, does not provide the defendants with the licence to pass comments on the personality or other attributes of the plaintiff that go beyond commenting on the very matter of public interest.

116.  As pointed out by Lord Nicholls NPJ in the Albert Cheng case, any comment must be germane to the subject matter criticized and that “dislike of an artist’s style would not justify an attack upon his morals or manners”.

117.  It is not part of the defendant’s pleaded case that the personality, character, trustworthiness, intellect or judgment of the plaintiff is a matter of public interest.  Hence, while the defendants are entitled to “dip their pen in gall” in criticizing the Formula for the purpose of warning the public of the risks of following it, they are not entitled to criticize or ridicule the personal attributes of the plaintiff under the guise of the defence of honest comment.

118.  In fact, looking at the Words used in the Article, the message conveyed by the Words in their context goes much further than the 2^nd and/or 3^rd pleaded comments.  As I have explained in Section B (in particular, paragraphs 21 and 33) above, the Words as understood by an ordinary and reasonable reader carry the meaning that the Formula itself is laughable, but it is doubly incredible because it comes from the plaintiff, who is a fool, stupid and untrustworthy.

119.  Another problem of the defendants’ case is that those comments on the plaintiff are not supported by facts which are proven to be true or other privileged.

120.  As mentioned above, the only fact pleaded under the defence of honest comment is the fact that the plaintiff mentioned the Formula at the TV Episode.  This fact alone, without more, does not provide sufficient factual basis in support of the defendants’ comments on the plaintiff. 

121.  In my judgment, to support such comments, the defendants must at least plead some facts to explain why the Formula is not sure win in order to go one step further to say that the plaintiff, in claiming to have such a sure‑win formula, cannot be taken seriously, or must be a joker, or must be thoughtless. 

122.  In fact, in his written opening[12], Mr Li seemed to agree with my foregoing observation.  In advancing his argument in support of the defence of honest comment, Mr Li referred to the (unproven) fact a punter would suffer great and adverse financial repercussions if he were to follow the Formula from the beginning of the 2014 World Cup. 

123.  The reality, however, is that no particular of fact is given by the defendants pertaining to the viability of the Formula.  Further, as explained in Section C3 above, there is also insufficient evidence in support of the factual assertion that if a punter placed his bets in accordance with the Formula, he would suffer huge loss in the 2014 World Cup.

124.  Thus, I take the view that there is insufficient proven fact in support of the 2^nd and 3^rd pleaded comments.  The defendants may be entitled to form their opinion on the Formula.  However, as stated in paragraph 93 above, the defendants cannot pray in aid of the defence of honest comment to justify their comments on the plaintiff based on their opinion on the Formula.

125.  For the above reasons, I am not satisfied that the defence of honest comment is made out in relation to the 2^nd and 3^rd pleaded comments. 

126.  In any event, I find that the 2^nd and 3^rd pleaded comments are understatements of the meanings of the Words, and they are insufficient to meet the defamatory stings of the Words.

4^th and 5^th pleaded comments

127.  The 4^th and 5^th pleaded comments relied upon by the defendants are that “punters should not follow the betting formulae” and “punter should be warned of the risk associated with gambling”.

128.  As mentioned above, neither of these comments goes to the libellous sting of the Words against the plaintiff.  Even if they are honest comments, I am unable to see how they can assist the defendants in defending the plaintiff’s claim in this action.

129.  For the above reasons, I find that the defence of honest comment fails in relation to all the pleaded comments relied upon by the defendants.

E.  Defence of qualified privilege

130.  I can deal with this line of defence relatively shortly.

131.  The law on qualified privilege is discussed in the recent decision of the Court of Appeal in Jonathan Lu & Ors v Paul Chan Mo‑Po & Anor (CACV 251/2015, 23 December 2016) at §§84‑87. In short:‑

(a) A privileged occasion is an occasion where the person who makes a communication has an interest, or a duty (whether legal, social or moral), to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it.  This reciprocity is essential. 

(b) The existence of the common interest to found an occasion of qualified privilege is to be determined objectively.  It is not sufficient that the maker of the defamatory statement honestly believes that he has a legitimate duty or interest to make it or the recipient to receive it.

132.  In support of its case on qualified privilege, the defendants pleaded in their Defence[13] that the Words was published on an occasion of qualified privilege because “the Article concerns matter of great public and general concern and interest” and “the subject matters had become one of current concern and had attracted huge public attention”.  Accordingly, the defendants allege that they “had a moral and/or social duty to publish or cause the publication of the Article and the public at large had a corresponding legitimate interest in receiving the information contained in the Article”.

133.  The tendency of the common law was to confine qualified privilege to restricted or private communication: see Gatley (12^th ed) §15.1.  Hence, where matters of public interest are published by the media to the public at large, it would be more usual to invoke the Reynolds privilege[14] (as opposed to the traditional type of qualified privilege based on reciprocity of interest or duty) as defence.

134.  In his oral closing, Mr Li fairly accepted that the defendants’ case is not rested on the Reynolds privilege. Mr Li is clearly right.  No particular is pleaded and no evidence is adduced on the usual elements of responsible journalism that would be taken into account in a case involving the Reynolds privilege[15].

135.  On my part, I have some doubts as to whether the defendants are entitled to rely on the traditional type of qualified privilege based on reciprocity of interest or duty (as opposed to the Reynolds privilege) when the Article was a communication to the public at large.  I, however, do not intend to decide this point without full submissions from the parties and will proceed to decide the defendant’s case of qualified privilege on the basis of reciprocity of interest or duty.

136.  In this regard, I am of the view that the mere fact that the subject matter of the defamatory words is a matter of public interest does not, without more, lead to the conclusion that the publisher has an interest or duty to publish them.  It would render the defence of honest comment and the defence of Reynolds privilege otiose if this court is to equate the existence of public interest to the existence of an interest or a duty to communicate.

137.  In the Defence, the defendants do not suggest that they had an “interest” or a “legal duty” to communicate to the public the Words concerning the Formula and/or the plaintiff.  Such suggestion, even if made, is plainly unsustainable.  Their case is that they had a “moral and/or social duty” to publish the Article.

138.  In my judgment, I am unable to accept that the defendants were under any “moral and/or social duty” to publish the Article. 

139.  Although football gambling in Hong Kong through the Hong Kong Jockey Club is lawful, I cannot see any reason why the defendants would owe to the public a “moral and/or social duty” to advise them of the risks of betting in accordance with the Formula, or of anything concerning football betting strategy.  In my view, to recognize such “moral and/or social duty” will give rise to moral hazards in the sense the court may be seen as sending the wrong message that it endorses football gambling.

140.  More importantly, I find the defendant’s case that it owed to the public a “moral and/or social duty” to publish the Article rather contrived and that such alleged duty, viewed objectively, could not exist.  In this regard, I wish to point out that:‑

(a) The Article describes the TV Episode as one having close‑to‑zero audience rating.  As a matter of fact, there is no dispute that it had very low audience rating.  Thus, I am completely baffled by the defendant’s plea that the subject matter “had attracted huge public attention”.

(b) Further, there is no dispute that the TV Episode was broadcasted on 10 June 2014.  If there was any “moral and/or social duty” on the part of the defendants to publish to the public anything concerning what was said by the plaintiff at the TV Episode, the defendants should have done it earlier, rather than leaving it to be done on 5 July 2014 (i.e. the date of publication of the Article).  The relatively long lapse of time also militates against the suggestion of the existence of any alleged moral and/or social duty.

(c) Cynically, while the defendants claim that they were under a “moral and/or social duty” to advise the public of the risks of football gambling, the purpose of the Article was to advance the football betting strategy preferred by the 3^rd defendant.

141.  Furthermore, even if (which I do not accept) there was any moral or social duty on the part of the defendants to warn the public of the risks associated with gambling in accordance with the Formula, it clearly exceeds the scope of such duty for the defendant to use football gambling as a backdrop to make remarks which carry with them defamatory imputation against the personality, character, trustworthiness, intellect or judgment of the plaintiff

142.  For the above reasons, I also reject the defence of qualified privilege.

F.  Quantum

143.  I am satisfied that the plaintiff has established his defamation claim, and that the defendants have failed to make out any of their defences.  Accordingly, I now proceed to deal with the issue of quantum.

F1.  General damages

144.  The plaintiff does not claim special damages.  However, it is well established that a successful claimant in a defamation case is entitled to general damages.

145.  Mr Li helpfully drew my attention to the Court of Final Appeal decision in Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd (2012) 15 HKCFAR 299 in which Ribeiro PJ (at §§35‑41) summarized the principles regarding general damages in libel case.

146.  In short, an award of general damages is compensatory in nature.  In performing the assessment, the court must take into account all the circumstances of the case.  It is not possible to list exhaustively all factors, but certain factors have been identified as important, for example:‑

(a)  the gravity of the libel;

(b)  the extent of the publication;

(c)  defendant’s conduct of the action;

(d)  the subjective effect on the plaintiff’s feeling;

(e)  matters tending to mitigate damages (e.g. apology by the publisher);

(f)  matters tending to reduce damages (e.g. evidence of the plaintiff’s bad reputation);

(g)  special damages; and

(h)  vindication of the plaintiff’s reputation past and future, etc.

147.  In the present case, the plaintiff claims that:‑

(a) He had suffered considerable embarrassment as a result of the publication of the Article and that the defendants had gravely injured his personal reputation[16]. 

(b) Further, the defendants did not give him any opportunity to comment on the Article and did not withdraw it or offer any apology in respect of it[17].

148.  I accept that I need to take the above matters into account.

149.  That said, in relation to the first point, I observe that apart from the plaintiff’s own general assertion, there is no evidence of the plaintiff suffering any specific damage or prejudice.

150.  As to the second point made by the plaintiff, I also observe that while complaining about the defendants’ failure to withdraw or offer apology in respect of the Article, there is no evidence of the plaintiff demanding for such withdrawal or apology from the defendants.  In fact, the plaintiff does not even seek any injunctive relief in this action to restrain the further publication of the Article.  Thus, I do not consider this factor as a weighty one in the specific circumstances of this case.

151.  For the defendants, Mr Li submitted that:‑

(a) Even if the Words are considered by this court to be defamatory, their gravity is in the proper context at the lowest end of the spectrum. 

(b) As a result of his making some offensive or controversial remarks in the past, the plaintiff does not have a good reputation or reputation of any sort.

(c) Any comment on the plaintiff’s gambling strategy had anything to do with his status as a businessman or advisor;

(d) In any event, the plaintiff’s reputation would be largely vindicated by the pronunciation of a judgment in his favour.

152.  On his first point, I agree with Mr Li that in assessing the gravity of the libel, I need to bear in mind the context in which the Words were published.  While I find that in the eyes of an objective and reasonable reader, the Words meet the necessary threshold of seriousness and bear defamatory meanings, I incline to accept that given colloquial writing style of the Article, the gravity of the libel should be considered to be on the low side.  No doubt, the gravity of the libel would much more serious if the same defamatory imputations were made in an article written in serious tone.  In any event, the libel cannot be regarded as a serious one because it does not seek to question the honesty or integrity of the plaintiff.

153.  As to the second point, I agree with Mr Li that I need to take that into account.  That said, I am not prepared to give much weight to it because while the plaintiff in the past made some remarks which might be considered by the public to be offensive or controversial, those remarks in my view have little impact on the plaintiff’s reputation as a businessman and/or financial advisor of sound judgment.

154.  For the same reason, as to his third point, I also agree with Mr Li that I need to take it into account, but I would not attach too much weight to it.

155.  As to Mr Li’s fourth point, I agree with his submission and will take that into account in deciding the size of the award of general damages: see Wong Wai Kay v Hong Kong Economic Journal Co Ltd [2013] 3 HKLRD 27 (at §44)

156.  As to the extent of publication, the plaintiff gave evidence (which was not challenged during cross‑examination) that at the time of publication, more than 170,000 copies of the Apple Daily were sold each day.  As far as the internet edition of the Article is concerned, its view‑rate was slightly more than 6,000 at the time when the plaintiff gave his witness statement[18].

157.  I accept that I need to take this into account.  I, however, wish to observe that I cannot assume that everyone buying a copy of the Apple Daily would read the Article.  In any event, in considering what weight should be attached to the factor regarding extent of publication, I always need to bear in mind the gravity of the libel born by the Article.

158.  As far as the defendants’ conduct of this action is concerned, I have the following observations:‑

(a) Whilst I reject the defendants’ arguments, I consider that those arguments are respectably arguable.  I disagree with Mr Leung’s submission that this is a straightforward defamation case.  The length of this judgment speaks for it.

(b) Further, in conducting the trial, Mr Li also sensibly refrained from engaging in conduct which added to the injury to the plaintiff’s feeling.  Mr Leung did not suggest otherwise in his written and oral submissions.

(c) Furthermore, I also find that the 3^rd defendant to be a fair witness.  During his oral testimony, he fairly accepted that the Formula theoretically works, but stressed that it may not work practically because not all punters have deep pockets.  In addition, the 3^rd defendant also fairly accepted that the publication of the Article would cause the plaintiff embarrassment within his circles and said (in rather apologetic tone) that he did not think about that when he wrote it.

159.  In light of the circumstances, I do not think the defendants’ conduct in the action constitute any factor leading to any increase in the quantum of the monetary award.

160.  To assist this court, both Mr Leung and Mr Li helpfully drew my attention to various decisions including Leonorah Boulter v Christopher Compton Stanley (HCA 765/20015, 31 July 2006), Mok Kam Kwai v Lam Mo Fat (HCA 1868/2010, 6 March 2014), Wong Wai Kay v Hong Kong Economic Journal Co Ltd [2013] 3 HKLRD 27, Li Wei v Brightec Ltd (HCA 4430/2001, 12 January 2001), Jigme Tsewang Athoup v Brightec Ltdi (HCA 1693/2011, 13 January 2015).  The award of general damages discussed in those cases ranged from $30,000 to $400,000.  Mr Leung submitted in his oral closing that the minimum amount of monetary award in this case should be HK$100,000; whereas Mr Li submitted that it should in the region of tens of thousands.

161.  I do not think the above cases provide good comparables because there are significant differences between this case and those other cases in terms of the gravity of the libel as well as the surrounding circumstances.  However, the above cases demonstrate that an award of general damages would be about HK$150,000 even when the words in question bore defamatory imputations concerning the honesty or integrity of the claimant: see Li Wei (supra); Jigme Tsewang Athoup (supra).

162.  In the present case, having carefully considered all the above circumstances, I find it fair and appropriate to award the sum of HK$100,000 to the plaintiff as general damages. 

F2.  Aggravated damages

163.  The plaintiff also asks for aggravated damages.

164.  In Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd (supra), Ribeiro PJ (at §112) stated that aggravated damages are part of the compensatory award and may be granted to compensate for additional injury caused to the plaintiff’s feelings by the defendant’s conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross‑examine the plaintiff in a wounding or insulting way.

165.  In support of the plaintiff’s claim for aggravated damages, Mr Leung invited this court to consider the fact that (a) the Article was widely circulated; (b) the defence had no merits; (c) the defendants failed to withdraw the Article or offer any apology for it; and (d) the general conduct of this action by the defendants.

166.  I have already dealt with these points above in my discussions relating to the award of general damages.  In my judgment, I am not satisfied that this is a case which warrants the award of aggravated damages.  Accordingly, no such award is made.

G.  Disposition

167.  For the above reasons, I enter judgment against the defendants on liability and made an award of HK$100,000 as general damages in favour of the plaintiff.

168.  As to the question of interest, Mr Leung asked for interest on any award at judgment rate from the date of the writ; whereas Mr Li submitted that no interest should be awarded between the date of writ and the date of judgment.

169.  In making the award of general damages of HK$100,000, I have already taken into account all the circumstances, including the fact that the plaintiff has brought his claim in this action all the way to the trial.  I am not minded to award any interest on the said award of HK$100,000 between the date of writ and the date of judgment.  I, however, would follow the usual rule to award interest on the said sum at judgment rate from the date of judgment until payment.

170.  As to the question of costs, the usual rule is that costs should follow the event.  I would make a costs order nisi that the costs of this action be paid by the defendants to the plaintiff, to be taxed if not agreed.

171.  Last but not least, I wish to thank both Mr Leung and Mr Li for their helpful submissions.

ANNEX 1

亞視都有人講波？

大家見到此文時，希望我估計冇錯：德國頂得住法軍，巴西亦都冇失場，然後下個禮拜可以欣賞巴西大戰德國。但如果係巴西對法國，本人以及一眾球迷係會有陰影，小弟問晒身邊朋友，大家對於1998 年法仔大炒巴西奪冠一役，依然懷恨在心（當然仲有懷疑）。

再睇今晚荷蘭豆對哥斯達黎加，捉路一定係入球細再買和，儘管荷蘭燈友唔想見到，但哥斯達黎加真係守得下，而目標好明顯係90 分鐘後加時再12 碼。

至於阿根廷對比利時，都依然係細手交易，你睇番阿根廷近幾場，都知道唔係好入到波，但又會過到關咁樣。

回顧番世界盃前，有一日出街食飯，餐廳竟然開住亞視，又咁啱詹培忠做咩《香江怒看》嘉賓，仲要教人點賭至有錢贏（喺收視接近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？而呢條儍佬仲要係詹培忠，你信佢一成都死。到今日大家睇番過去50 幾場，如果照條懵佬咁買，未到16 強，已經要懸樑。

但話分兩頭，如果你8 強至開始買和，甚至上半場和，你應該可以執番多少。近兩屆近決賽尾幾場，都係先顧防守，自己留意下。

和勝和負

梁柏堅

ANNEX 2

There is someone on ATV who talks about football?

By the time you read this article, I hope my guesstimate is correct: Germany could stand against France, and that Brazil did not lose any game.  And then next week we can enjoy the big match, Brazil versus Germany.  But if it is Brazil versus France, other football fans and I will have an unfading shadow.  I have asked all my friends around, everybody still expresses resentment at the French catastrophically beating Brazilian and winning the tournament in 1998 World Cup (of course people still have doubt about it).

Further, when (we) look at tonight’s match of the Netherlands versus Costa Rica, (the strategy) mapped out is that (you) must bet “low” on the number of goals and then bet on a “draw”.  Even though Dutch fans do not want to see that, Costa Rica is fairly good at defending, and obviously the objective is to have penalty shoot‑out after 90 minutes.

As for Argentina versus Belgium, it is still “low” hand transaction, if you review the last few matches of Argentina, (you) will know it did not really score many goals, but still somehow managed to pass through.

Looking back on the time before the World Cup, when I dined out one day the (TV of the) restaurant was tuned to ATV and it.  So happened Chim Pui Chung was the guest in a show called “Views on Hong Kong”, he even taught people how to win money betting (on football) ((he) talked about this in a (channel) which gets almost zero rating!).  When it was spoken out, all of us will definitely tease at (him).  For home/away/draw, (you) should bet on a draw at all times because of the triple reward.  If (you) lose the first match, (you) should wager on in the manner of 1, 2, 4, 8, 16 until (you) win the bet and then start back at one.  What came to my mind at that time was why someone would share with everyone in the street the winning strategy?  And that fool is Chim Pui Chung, it is deadly even if you believe one‑tenth of (the words said by) him. Looking back at the (previous) 50 odd matches, if you had placed (bets) following (the strategy suggested by) this stupid guy, you would have already hung yourselves before the round of 16.

But on the other hand, if you start betting on a draw only at the quarter‑finals, or even a draw in the first half, you should have managed to earn some (money).  In the few matches approaching the Final of the last two (World Cups), (the terms) focused on defence first, (so) you may (have to) pay attention to (that).