SIMA SAI ER v. NEXT MAGAZINE PUBLISHING LTD AND OTHERS

HCA 1500/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1500 OF 2014

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R U L I N G

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1.  On 5 August 2014, the plaintiff commenced the proceedings herein against the seven defendants and took out a summons seeking interlocutory injunctive relief against them.

2.  The application for injunction relief was supported by an affirmation of the plaintiff filed on the same date, and served on the defendants on or shortly after 5 August 2014.

3.  In view of the limitation of time, the defendants say that they have not had a sufficient opportunity to properly answer all the allegations raised in the plaintiff’s affirmation, although their solicitor, Mr John Rose, has been able to do a short affidavit raising a few points in opposition to the application.

4.  In the circumstances, I consider that the plaintiff’s summons should be adjourned for full argument after the parties have been given adequate time to file evidence bearing on the relevant issues, but I would entertain the plaintiff’s application for interim relief pending the substantive hearing of the summons.

5.  Mr Wong SC (for the plaintiff) has made submissions in support of the plaintiff’s application for an interim injunction in terms of paragraphs 1 and 3 of the summons (with some slight modifications), and Mr Pun (for the defendants) have made submissions to resist the application for interim injunction.  I am grateful to counsel for their helpful submissions.

6.  In view of the nature of the application now before me and the suggestion that there could be future publication of materials objected to by the plaintiff which have not yet been published, I consider that I ought to make a ruling now and I shall give brief reasons for the ruling so that any parties not satisfied with my ruling can take the matter further.

7.  On the existing materials before me, it seems to me clear that the plaintiff has demonstrated at least a serious issue to be tried that she has a reasonable expectation of privacy in respect of the materials referred in paragraph 1(1) to (4) of the summons (as amended or modified) and that the defendants’ publications of the materials referred to in Schedule I to IV to the summons constitute actionable breaches of the plaintiff’s right to privacy such as to give rise to causes of action for breach of confidence.  Even if a higher threshold is required because the grant of the interim injunction would in effect dispose of the action finally (as contended by Mr Pun which I do not accept) or because one is also concerned with the defendants’ freedom of expression (in this regard Mr Pun suggests that the applicable threshold is that the plaintiff has to show that she is likely to establish that publication should not be allowed), I consider that, on the existing materials the plaintiff has passed the threshold in so far as establishing a cause of action for breach of confidence is concerned.  I bear in mind that the defendants have not yet filed their full evidence and the further evidence which may be filed by the defendants in future may change the picture.  However, I have to deal with the application on the basis of the existing evidence before me.

8.  As I see it, my main consideration is to adopt a course which is least likely to cause injustice to the parties.  In this regard, I take into account the following factors:

(1)   the risk to the plaintiff’s health which may be caused by further publication of the materials (as set out in the medical report of Dr Tony Lai dated 2 August 2014);

(2)   the harm to the plaintiff’s reputation which may be caused by any further publication of the materials; and

(3)   the apparent absence of any public interest to be served by the publication or further publication of the materials by the defendants.

9.  I have little doubt that granting an interim injunction pending the substantive hearing of the summons would be the course which is least likely to cause injustice to the parties.

10.  As I understand it, Mr Pun’s main ground to resist the interim injunction is that there has been such extensive publication of the “Dance Clip” and “Semi‑Nude Photograph” by the defendants (in censored form) and by others (some in censored and some in uncensored forms) that they are now effectively in the public domain such that, to borrow the words of Mr Justice Eady in Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB), the grant of an injunction would make “very little practical difference” or would merely be “a futile gesture”.  While I do not doubt that in some circumstances, the court may reach the conclusion that no useful purpose can be served by granting an interim or interlocutory injunction to restrain the publication of a photograph or video clip in breach of the right of privacy or confidence, I do not consider that this is the case here.  In this regard, I accept Mr Wong’s submission that there is a distinction to be drawn between main stream publications like those published by the defendants and publications on the internet (see CTB v News Group Newspapers Ltd [2011] EWHC 1326 (QB) para 24).  I consider that there is a distinction to be drawn between publication of information in a narrative form and the publication of a photograph or, a fortiori, a video clip, where each publication is a fresh intrusion of privacy (see Douglas v Hello! Ltd [2006] QB 125 at para 105; OBG Ltd v Allan [2008] 1 AC 1 at para 288).  I also bear in mind the contents of the medical report of Dr Tony Lai where the doctor has explained the risk to the plaintiff’s health by further publications of the materials complained of.  It cannot be said that there is no useful purpose to be served by granting the interim injunction sought.

11.  The last comment also applies to other materials not yet published but referred to in a publication in Sudden Weekly dated 1 August 2014 on the internet (at page 319 of Bundle 2B) and a further publication in Sudden Weekly also dated 1 August 2014 (at page 146 of Bundle 2A), which clearly establish a risk or threat that Sudden Weekly may be publishing yet unpublished materials of the sort objected to by the plaintiff.

12.  I also take into account, as pointed out by Mr Wong, that some of the publications of the offending materials by other parties referred to in paragraph 8 of the affidavit of Mr John Rose appear to be republications based on the defendants’ original publications.

13.  Overall, I consider that the interest of justice would be best served by granting the interim injunction sought by the plaintiff in terms of paragraphs 1 and 3 of the summons (as modified), such injunction to continue pending the substantive hearing of the plaintiff’s summons or further order of the court.