ORIENTAL PRESS GROUP LTD. AND ANOTHER v. NEXT MAGAZINE PUBLISHING LTD. AND OTHERS

FAMV No. 26 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 26 OF 2001 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACV NO. 371 OF 2000)

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D E T E R M I N A T I O N

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Mr Justice Ribeiro PJ:

1. This application for leave to appeal concerns a libel action tried by Chung J and a jury.

2. Three issues on liability were left to the jury, namely, (i) whether the imputation was defamatory in meaning; (ii) if so, whether the defence of fair comment was available; and (iii) if so, whether it was defeated by malice. The jury found in the 2nd plaintiff's favour against Next Magazine and the publisher but in favour of the defendant printer. This indicates that the issues of malice and fair comment were of importance to the verdict.

3. However, the trial took place prior to the decision of this Court in Cheng & Another v Tse Wai Chun (2000) 3 HKCFAR 339. On appeal by the defendants, the Court of Appeal found that, not having had the guidance of that decision, the judge had misdirected the jury in important respects in relation to the issues of fair comment and malice.

4. A re-trial on the issues of fair comment and damages was ordered, the Court of Appeal being of the view that the evidence as a whole made it possible that a properly directed jury might conclude that malice, as now understood, existed so as to defeat the defence of fair comment.

5. The defendants seek leave to appeal, such leave having been refused by the Court of Appeal, with a view to contending that a re-trial should not have been ordered but that the Court of Appeal should have allowed the appeal on the basis that they were not liable. They argue that the Court of Appeal was wrong in two respects:

(i) It is contended that it adopted the wrong test regarding the evidential threshold for malice and that in approaching such evidence, a judge ought to consider each item separately and be satisfied as to whether such evidence is more consistent than not with malice before leaving the issue of malice to the jury.

(ii) It is argued that the evidence was insufficient to sustain a finding of malice as a matter of law.

6. The defendants submit that these are questions of great general or public importance because they impact on freedom of speech and of the press and because the decided cases indicate that there is some inconsistency of approach in various common law jurisdictions. They also rely on the "or otherwise" ground.

7. It is our view that the issue relating to the evidential threshold is one of great general or public importance.

8. What has given us more pause for thought is as to whether, if leave is given, notwithstanding decision of that issue, the Court might still have to remit the question on the facts for consideration by a jury.

9. Of course, even if that course was necessary, the case would at least be remitted with the controversial issue having authoritatively been decided. An even more unattractive procedural possibility might involve the question of the correct evidential threshold returning to the Court after a re-trial, for an authoritative decision at that stage.

10. A further factor that supports the argument against simply implementing the Court of Appeal's order for a re-trial is as follows. The jury clearly found that the case was one where the defence of fair comment arose. No suggestion is made that this was arrived at due to any misdirection. As the Court of Appeal has ordered a re-trial in respect of the entire issue of fair comment, implementation of that order would permit the plaintiff to re-open the issue of fair comment with the possibility of recasting his case and his evidence. In particular, issues relating to the facts underlying the comment would be likely to be re-explored. This could work an injustice on the defendants.

11. On the other hand, the issue of honesty of belief was pleaded as one of the particulars of malice so that the plaintiff was clearly alive to the relevance of that issue at the trial and had every opportunity to call evidence on it.

12. In all the circumstances we grant leave to the defendants to appeal on both issues, namely,

(i) As to what is the correct approach to the sufficiency of evidence for leaving the issue of malice to the jury; and

(ii) As to whether on the evidence adduced the issue was one which ought to have been left to the jury.

The costs of this application will be in the appeal.