MELIVIN WONG v. JOCKEY DAILY NEWS LTD AND ANOTHER

IN THE HIGH COURT OF HONG KONG

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JUDGMENT

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1. The Plaintiff is a television and film actor.

2. The 1st Defendant is the proprietor and publisher and the 2nd Defendant is the editor of "The General Weekly", a magazine which circulates in Hong Kong. In the issue of the magazine published on 28th March, 1984 there was an article about the Plaintiff and an actress Miss Chiu Ngar Chi. The Plaintiff took exception to that article because, he says, it means that:-

3. By reason of the publication the Plaintiff claims that he has been seriously injured in his reputation and has been brought into public scandal, odium and contempt.

4. The Defendants deny that the words complained of are capable of bearing any meaning defamatory of the Plaintiff. Alternatively, they plead justification. In particular they allege:-

5. To complete the picture, it has been the practice for some years for Hong Kong film and television stars to give live performances in S.E. Asia where their films and television series have been popular, so that their fans can see them in the flesh. That they are not professional singers or stage performers is not, apparently, of great consequence. It was around such a performance in Singapore in January 1984 that the offending article revolved.

The Plaintiff's standing

6. The Plaintiff pleads that he is and was at all material times a performer, television and film actor well known in Hong Kong and South East Asia. The Defendants have put the Plaintiff to strict proof of this. I am satisfied on the evidence of the Plaintiff, which was not seriously challenged in cross-examination, that the Plaintiff is all that he claims to be.

The Defamation

7. For the Defendants, Mr. Tang contends that the Plaintiff's second complaint namely, that the article means he is an immoral and/or improper artists, is not defamatory in that sense. He points to the actual words complained of which read, in relation to the performance given before a Singapore audience;

"Wong Kam Sun, in their eyes, is an improper artist, because he took away another's wife."

8. Mr. Tang says this does not suggest that the Plaintiff is an improper artist, only that in the prevailing mental climate of the Singapore audience that was their opinion. Whilst not overlooking those exact words and the context in which they appeared, in my judgment the words are capable of bearing the defamatory meaning attributed to them by the Plaintiff. In any event it would avail the Defendants little should I have found in their favour. To my mind, the real sting of the libel lies in the other two complaints of the Plaintiff.

9. I should perhaps mention that "improper" was originally translated as "immoral". However, counsel seemed agreed that in Cantonese the word has the same connotation.

10. Mr. Tang has not sought to contend that the article does not bear the meaning attributed to it by the Plaintiff in the other two complaints.

Justification

11. The Defendants called two witnesses. The first, Mr. Goh, is the distributor and retailer of newspapers, magazines and books in Singapore. The second, Mr. Peh, is the editor of the Entertainment Section of a Chinese newspaper in Singapore. Neither witness gave any evidence in relation to the Plaintiff's third complaint. In relation to this complaint the Defendants' plea of justification must fail. Indeed, it was doomed from the outset because the thrust of the article is that the audience did not like the Plaintiff because of his impropriety, not because he is a pharmacist and does not sing well.

12. The evidence of these two witnesses was strikingly similar. First, they said that Singaporeans are conservative and would therefore hold a bad impression against the Plaintiff because of his conduct in relation to Miss Chiu, which apparently led to divorce proceedings between Miss Chiu and her former husband. I say apparently, because their information about this was obtained from newspaper reports and articles in magazines which appeared about two years ago. It is now clear from evidence led by the Plaintiff that Miss Chiu obtained a divorce from her husband on the ground of her husband's unreasonable behaviour. In addition Mr. Goh said he had heard customers when buying newspapers which he retails, make adverse comments about the Plaintiff.

13. Secondly, both witnesses said that they had attended performances given by the Plaintiff and Miss Chiu in Singapore in January. The performances consisted of singing and talking. The Plaintiff's singing was poor as was his Mandarin in which he did some of his singing. The Plaintiff's songs were greeted with some clapping and with what the witnesses called "sounds of discontent". Mr. Goh described the sounds as "wooooing". Mr. Peh described them as "uhhh". There was no suggestion that these sounds occured other than at the end of songs sung by the Plaintiff.

14. Even if this evidence is accepted, in my judgment it falls far short of justifying the words of which the Plaintiff complains namely, a caption which reads:-

"Wong Kam Sun sadly encounters reject by Singaporean and Malaysian audience."

which is followed later in the article by:-

"But every time when Wong Kam Sun opened his mouth to sing or to speak, audience down-stage also showed their heated response, that was the sound of booing coming from everywhere, making Wong Kam Sun very embarrassed."

15. I do not however accept the Defendants' evidence on this point. The Plaintiff called six witnesses including himself and Miss Chiu. These witnesses either performed in the show itself or, apart from P.W.2 Mr. Lee Kar Yue, saw at least two shows from the audience. In matters of detail there were naturally discrepancies between the evidence given by these witnesses. The witnesses were generally agreed however that the theatre was at least half full, that there was no booing from the audience, that the Plaintiff did not sing "Chor Lau Heung" and that the Plaintiff and Miss Chiu sang a duet called "Leung Mong" (I have abbreviated the long title of this song). The question of who sang which songs was not a matter upon which the witnesses might reasonably have been expected to be examined so closely. The evidence on this was in my view spontaneous and emphasised the lack of rehearsal on the part of the Plaintiff's witnesses.

16. I did not form  the same view of the Defendants' witnesses. I have already referred to the similarity of their evidence. In addition, both agreed that the Plaintiff sang the song "Chor Lau Heung", and that the theatre was not well filled. Yet, these witnesses come from different backgrounds. Mr. Goh attended the performance simply to accompany his daughter. He said that he was more interested in Miss Chiu and did not pay much attention to the Plaintiff. Mr. Peh attended in his capacity as an entertainment journalist. He said in his evidence "that's why I went, to write something about the performance, to make comment. Wish readers to know what the performance was like." In the report which subsequently appeared in his newspaper, admittedly written by another reporter but after consultation with Mr. Pen, there is no mention of adverse audience reaction or booing. The reasons which he gave for not including this in the article were not convincing. It is also curious that both witnesses were at pains to mention the Plaintiff's poor singing when, as I have said, it was not really an issue.

17. I am driven to the reluctant conclusion that Mr. Goh and Mr. Peh have embroidered their evidence for the purpose of this action. As far as booing is concerned, I accept the evidence of the Plaintiff's witnesses. I find as a fact that there was no booing during the performance given by the Plaintiff in Singapore in January of this year.

18. I have already referred to the evidence given by Mr. Goh and Mr. Peh in respect of the Plaintiff being an immoral or improper artist. I do not doubt that they at least believed in the truth of what they said. However, Miss Ko, who gave evidence on behalf of the Plaintiff, said that as a Singaporean she does not agree that Singaporeans are against the Plaintiff because of the divorce case. She said that nowadays divorce is common and nobody cares much about it. She felt that there was no big comment about Miss Chiu's divorce.

19. Miss Ko struck me as a particularly sensible and forthright witness. I accept her evidence on this point. I find that on the balance of probabilities there was no wide-spread feeling amongst Singaporeans, whether they were fans or the public at large, about the Plaintiff's apparent part in Miss Chiu's divorce. I find therefore that the Defendants have failed to justify this statement. I think it fair to say at this stage, however, that although such an allegation is still capable of being defamatory it is only just so capable. Taken on its own very little damage would flow from it. And it is also fair to say that the Plaintiff in his evidence was principally concerned with the third complaint.

Damages

20. Two factors have to be considered namely, the injury suffered by the Plaintiff and the conduct of the Defendants.

21. The Plaintiff not having pleaded any particular loss, it is necessary to assess general damages for his loss of reputation and injury to his feelings. This is an exercise akin to the assessment of damages for pain, suffering and loss of amenities in a personal injury action.

22. The Plaintiff comes from a family of professionals which includes doctors, lawyers and engineers. He himself is a trained pharmacist (hence the reference in the libel) and is licensed to practise in both California and Hawaii. He has not practised in this profession since coming to Hong Kong in 1976 and establishing himself as a star of films and television. He is usually cast as a lawyer or policeman. Because of the good image which he projects he has been cast as an investigating officer in a drama series made by the film unit of I.C.A.C.

23. As I have indicated it is the third complaint about which the Plaintiff is principally concerned. He says that his integrity is in question because of the suggestion that he has to rely on another person to obtain engagements which he could not otherwise secure. This cause great anguish and embarrassment both to him and his family. In addition integrity is an important factor when he approaches possible investors or sponsors for films in which he is involved. Promoters of overseas performances for Hong Kong artists might also have doubt put into their minds.

24. Loss of reputation will depend upon a person's status in society. The higher the status, the greater the damage likely to be presumed. In Chan Kwong-wai v Lo Sau-king (1963) H.K.L.R. 692, Huggins J. (as he then was) when discussing this principle said:

"Certainly the more persons would be likely to hold in ridicule or contempt,  the object of a defamation as he ascends the social scale."

25. In a useful article entitled "Damages for defamation in Hong Kong" which appeared in the Hong Yong Law Journal (1981), Mr. Peter Rhodes analysed awards of damages for defamation in Hong Kong. This analysis suggests that film stars and professional persons are in the top half of the social scale.

26. Turning to the conduct of the Defendants, Miss Eu on behalf of the Plaintiff cited a number of factors from which she asked me to infer malice. Miss Eu also went on to cite the general principle that malice is presumed unless proven otherwise. The general principle is I think clear. Malice is prosumed so that it is not necessary for the Plaintiff to prove it unless there is a finding that the words complained of were published on a privileged occasion or pleaded as fair comment.

27. Some of the factors to which Miss Fu referred, however, may legitimately be taken into consideration as aggravating factors on the part of the Defendants. The Plaintiff's performance which gave rise to the article took place in January. The article itself was not published until the end of March. There was ample time for the Defendants to have checked the information contained in the article. The Defendants, however, have not seen fit to give evidence or even attend court to explain how the article came to be written and give the sources of their information. Miss Eu suggests that this conduct is irresponsible. I agree.

28. The hurt to the Plaintiff's reputation and feelings is certainly aggravated by the prominence given to the article and by its circulation. The front page of the publication was entirely taken up by a colour picture of the Plaintiff and Miss Chiu, together with a caption in bold characters which inevitably led readers to the article contained on an inside page. There was some suggestion from the Bar that the circulation of the publication in Hong Kong is 20,000 copies per week. This was not pursued. It would be fair to say, I think, that the publication has a good circulation in Hong Kong. It is also sold in Singapore, where Mr. Goh alone sells 1,000 copies per week.

29. The fact that the publication is not confined to Hong Kong alone is another factor to be taken into account.

30. The Defendants' plea of justification has failed, and failed miserably. This conduct has left the libel uncorrected for a number of months. Again this is a factor which aggravates the damage suffered by the Plaintiff.

31. Miss Eu has also asked me to take into account the lack of an apology. This I think cannot be done. It is difficult to reconcile a plea of justification with an apology. It is the failure of the plea which must be taken into account, not the lack of apology.

Quantum

32. There is very little helpful authority in Hong Kong cases. Miss Eu suggests that LOK Kwai-fu v Y.C. Chan & Ors. (1978) H.K.I.R. 225 might afford some assistance. In that case a husband and wife, who were described by the trial judge as "budding stars to say the least", were awarded $30,000 and $50,000 respectively. They were also awarded exemplary damages of $20,000 and $50,000. The fact that exemplary damages were awarded immediately suggests that this case was rather more serious than the present one. Indeed it was. The libels complained of were far more scandalous than in the present case. Little assistance can therefore be directly derived.

33. The Plaintiff is not, however, a budding star. He is established in Hong Kong and indeed internationally. This factor to some extent counterbalances the less severe nature of the libels against him. The Lok case was also decided some gears ago. The Court of Appeal recently has made plain that awards of damages must keep pace with the rate of inflation.

34. In H.C.A. 1979 No. 287, Roberts, C.J. awarded $120,000 and $60,000 in respect of 2 libels damaging to the professional reputation of an obstetrician. The award was in 1981.

35. Taking into account all the Factors to which I have referred, I am of the opinion that the proper award of damages is $75,000.

36. There will  therefore be judgment for the Plaintiff in the sum of $75,000.

37. Subject to any representation which counsel may wish to make the Plaintiff will have the costs of the action.