XCHRX 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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D E C I S I O N

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1. Mr. Chu, for the defendants, applies to vary the order of Suffiad J. made on 31 January 2001 to the effect that the trial of this action be now conducted by a bilingual judge sitting with a jury. The trial of this action has been fixed for three days commencing on 16 October 2001. Suffiad J. at the checklist hearing on 31 January 2001 ordered that the action be tried by a judge alone without a jury. At the checklist hearing the defendants' solicitor applied for an adjournment of the checklist hearing as the view was taken that the case was not yet ready for trial but this request for an adjournment was refused by the judge. He ordered, inter alia, that the action be tried in the fixture list without a jury with a trial estimate of three days.

2. This is an action for damages and for an injunction in respect of a libel in an article in Chinese published in the Oriental Daily News which is a leading Chinese newspaper. By virtue of S. 33A(1) of the High Court Ordinance, Cap. 4 if any party had applied for the action to be tried with a jury before the place and mode of trial was fixed then the action would have been ordered to be tried with a jury unless the court was of the opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury (para. 90.0942 Halsbury's Laws of Hong Kong Vol. 5). However, the application was not made in time and the defendant did not make such an application before the place and mode of trial was fixed by Suffiad J. on 31 January 2001. Notwithstanding this, it is common ground that the court has a discretion under S. 33A(3) of the High Court Ordinance to vary the said order of Suffiad J. and to direct that the trial be conducted by a judge sitting with a jury if it thinks it right that there should be a jury trial (Cropper v Chief Constable of the South Yorkshire Police and another [1990] 2 All ER 1005).

3. Having heard the submissions, it is plain to me that the action is one which is eminently suitable to be tried with a jury. The trial does not, in my view, require any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury. This is indeed accepted by Mr. Liu for the plaintiff.

4. Mr. Chu submitted that the issues raised as to whether the words complained of in the article appearing in the Chinese newspaper are defamatory of the plaintiff and what the article meant in its natural and ordinary meaning are matters which are best judged by a local jury. I agree with Mr. Chu. It is, in my view, eminently sensible and suitable for such issues to be determined by a jury.

5. The application is made at a late stage and any order for a trial with a jury would have the inevitable effect of the trial dates being vacated and new dates being fixed for a longer estimate. I see no prospect of the trial finishing in three days' time if there is to be a jury trial. Mr. Chu suggests that five days would be sufficient but Mr. Liu suggests that seven days would be safer. The evidence shows that it was only recently that the question of making an application for a trial with a jury was considered in the course of the preparation of the trial with counsel and the clients. It is not, as Mr. Chu submitted, the case that a decision was made much earlier to apply for a trial with a jury but that the defendants and their legal advisers sat on that decision until recently. If the trial dates are vacated, I am of the view that the plaintiff can be adequately compensated by an appropriate order for costs. I do not think that the plaintiff will suffer any real prejudice by an adjournment of the trial to new dates before a bilingual judge with a jury for a seven days trial.

6. In the exercise of my discretion I grant the defendant's application and make an order that the trial fixed to commence on 16 October 2001 be vacated and that the order of Suffiad J. made on 31 January 2001 be varied to the extent that the trial be before a bilingual judge with a jury and that new dates be fixed with a direction that there be early hearing dates. Estimated length seven days. New dates should be fixed in consultation with counsel's diaries and with the diaries of the plaintiff's witnesses.