HO YUEN KI WINNIE AND ANOTHER v. HO HUNG SUN STANLEY AND ANOTHER

HCA391/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 391 OF 2006

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D E C I S I O N

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A. Introduction

1. The 1^st plaintiff is the 1^st defendant’s sister.  She is widely known as the “Tenth Sister” (十姑娘).  The 2^nd plaintiff is on the 1^st plaintiff’s case a charitable foundation established by her in 2003.

2. The 2^nd defendant is a casino in Macau.  The 1^st defendant is according to the plaintiffs its founder and managing director.  He is frequently referred to as the “Casino King” or “King of Gambling” (賭王).

3. On 22 February 2006, the plaintiffs commenced the present action, suing the defendants for defamation.

4. By letter dated 24 March 2006, the solicitors for the defendants drew the attention of the plaintiffs’ solicitors to certain alleged defects in their pleadings and invited the plaintiffs to either discontinue the action or to amend their Statement of Claim.  The plaintiffs’ solicitors gave a holding reply on 7 April 2006.

5. On 12 April 2006, the 1^st defendant issued a summons for striking out and determination under Order 14A, Rules of the High Court (“the Original Summons”).

6. On 3 May 2006, the plaintiffs’ solicitors served on the defendants’ solicitors an Amended Statement of Claim (“ASOC”), which was amended without leave pursuant to Order 20, rule 3.

7. On 12 May 2006, the 1^st defendant applied to amend the Original Summons by taking into consideration the amendments introduced in the ASOC (“the Amendment Summons”), which application the plaintiffs did not oppose. 

8. By two letters dated 4 and 7 May 2007, the 1^st defendant’s solicitors sought to raise additional questions for determination under Order 14A.

9. By letter dated 7 May 2007, the plaintiffs sought to re-amend certain paragraphs of the ASOC.

10. Consequentially, there are now before the court the following applications :

(1)	On the defendant’s part :
	(a)	To strike out paragraphs 5 to 13, 15 to 28 of the ASOC on the ground set out in a document “Grounds of Objection to the [ASOC]” annexed to the Amendment Summons as Annex 2 (“the Striking Out Application”).[1]
	(b)	Further or alternatively, to disallow the amendments made in paragraphs 8, 9, 15, 21, 22 and/or 23, 25, 27 and 28 of the ASOC on various grounds as set out in Annex 2 (“the Disallowing Application”).
	(c)	Further or alternatively, to determine under Order 14A the various questions in favour of the 1st defendant as set out in the Amendment Summons and the letters of 4 and 7 May 2007 (“the O14A Application”).
(2)	On the plaintiffs’ part, to re-amend paragraphs 15, 23 and 26 of the ASOC (“the Re-Amendment Application”).  In principle, Mr Shieh, SC, for the 1st defendant, did not oppose the Re-Amendment Application but he submitted that the proposed amendments did not go far enough to cure the defects.

B. ASOC

11. In the ASOC, four alleged incidents of defamation are complained of.  The pleas in relation to the first three incidents have similar pattern : the 1^st defendant spoke allegedly defamatory matters to the press on three separate occasions, namely, 22 June 2005, 28 September 2005 and 20 October 2005.  He intended that what he said or the substance thereof be republished widely in the media.  On the following day, various newspapers reported what the 1^st defendant had allegedly said.  The 1^st defendant is responsible for such republications.  The 4^th incident relates to a newspaper announcement allegedly published or caused to be published by the defendants on 24 November 2005 (“the Announcement”) which, the plaintiffs complain, is defamatory.

12. It is quite impossible to dispose of the Applications before me without substantially repeating those parts of the ASOC that are under scrutiny.  For easy reference, a copy of the ASOC updated with the re-amendments introduced to paragraphs 15, 23 and 26, is annexed to this Decision.

C. The Striking Out Application

13. Mr Shieh has helpfully put the various paragraphs of the ASOC objected to in different clusters.  I will discuss the Striking Out Application accordingly.

C.1 Paragraphs 5, 11 and 18 — “or substantially similar defamatory words”

14. Paragraphs 5, 11 and 18 all plead that the 1^st defendant had on the date in question spoken “the following defamatory words in Chinese, or substantially similar defamatory words” to a group of assembled journalists.  The Chinese words were then set out in verbatim.

15. Mr Shieh complained that the use of the expression “or substantially similar defamatory words” is embarrassing.  He submitted that where an oral statement is relied on, the defendant is entitled to know with certainty the charge made against him.  It is not sufficient to simply allege that “words to a certain effect” were used : Gatley on Libel and Slander, 9^th edition, at para.26.13.[2]

16. Mr Lee SC, for the plaintiffs, submitted that the best particulars of what the 1^st defendant had spoken have already been pleaded.  However, given the transitory nature of speech, ascertaining the precise words uttered by a defamer could pose a problem at the trial if the 1^st defendant disputes the publication of the words complained of.  The express “or substantially similar defamatory words” is therefore added abundate cautela, in that even without them the result is the same so long as the plaintiffs succeed to prove at trial that the defamatory words spoken by the 1^st defendant are substantially to the same effect : see Gatley (10^th edn) at para.26.13, the commentary at footnote 56.  The addition of the expression could not possibly have embarrassed or confused the defendants.

17. In Best v. Charter Medical of England Limited & another [2001] EWCA Civ. 1588, 26 October 2001, the English Court of Appeal discussed the pleading requirements for statements of claim in defamation actions.  There, it was contended on behalf of the plaintiff, whose pleading was struck out, that the authorities decided before the Civil Procedure Rules came into force did not require him to plead the exact words alleged or even to set them out reasonable certainty.  The plaintiff relied on an earlier decision of that Court in British Data Management plc v. Boxer Commercial Removals plc [1996] 3 All ER 707 and argued that “reasonable certainty” referred to the nature of the defamatory statement rather than the words alleged to have been used.  Rejecting this argument, Keene LJ said :

“	[7] The relevant passage in British Data Management in the judgment of the court delivered by Hirst, LJ, reads as follows:
	‘	Having regard to the above authorities, we do not it possible to accept Mr. Nicol’s first submission that it is invariably necessary for the plaintiff to plead or allege verbatim the exact words of which he complains, provided, as stated by Denning LJ in Collins v. Jones, he sets them out with ‘reasonable certainty’ which is, in our judgment, the correct test.
		It is important to bear in mind the purpose of a statement of claim.  It is to enable the defendant to know the case that he has to meet so that he can properly plead his case, with the result that the issues are sufficiently defined to enable the appropriate questions for decision to be resolved.  In a libel case the first question is whether the words are defamatory of the plaintiff, which depends on their meaning; unless the plaintiff succeeds on this fundamental issue, his action will fail.  Next, a number of questions may arise on defences which the defendant may wish to raise, for example, a plea of justification, which depends on whether the words are true or false, and similarly mutatis mutandis in the case of a plea of fair comment.
		This purpose will not be achieved unless the words are pleaded with sufficient particularity to enable the defendant not only to understand what it is that the plaintiff alleges that they meant, but also to enable him to decide whether they had that meaning and, if not, what other meaning they had or could have …
		This is why there must in all cases be reasonable certainty as to the words complained of, or in the case of a quia timet injunction what words are threatened, and normally this will require the pleading of the actual words or words to the same effect.  Only on this basis can the case proceed properly through the interlocutory and pleading stages to trial and then to the formulation of the questions to be put to the jury and a proper answer to them.’
	It seems to me to be entirely clear from that passage that, when this court was referring to ‘reasonably certainty’, it is referring to the words used.  It is the words alleged to have been used which must be set out with reasonable certainty, and they must be set out in the Particulars of Claim so that the defendant can decide how to plead his case.  The reasons for this requirement are those given by Hirst, LJ in that passage, in particular the fact that in defamation actions the words used or alleged to have been used are basic to the cause of action.  As was said many years ago in Harris v Warre (1879) 4 CPD 125 by Lord Coleridge, CJ:
	‘	In libel and slander the very words complained of are the facts on which the action is grounded.  It is not the fact of the defendant having used defamatory expressions, but the fact of his having used those defamatory expressions alleged which is the fact on which the case depends.’
	A crucial question in defamation actions is always whether the words used have a defamatory meaning, and it is therefore impermissible to plead the meaning but not to plead the words used.  The words may be capable of bearing more than one meaning, and in such circumstances the claimant must plead the meaning he asserts that the words have.  But the defendant may wish to contend that that is not how the words would reasonably be understood.  He may also wish to try to justify any defamatory allegation, but he cannot make that decision until the claimant sets out the allegations which it is said he published.  It follows that it is not enough for a claimant to plead the gist of what was allegedly said or written; he must set out the words with reasonable certainty, a test long established: see Collins v Jones [1955] 1 QB 564, [1955] 2 All ER 145 per Denning LJ at 571h – 572a of the former report.
	[8] Therefore it will not normally suffice for a claimant to plead that the defendant made a statement ‘to the effect that’ the claimant was a liar or had behaved in a discreditable way.  To do that, which is the form of pleading to be found in sub-paragraphs 3.1, 3.2, 3.4, 3.6, 3.7 and 3.8 of the present Particulars of Claim, is to plead the meaning of the words used, and one does not know whether that meaning derives from inference or not.  Such a pleading was rejected, rightly in my view, by the court in Rosen v Alberta Motor Association Insurance Co (1994) 1 WWR 719.”

18. Here, the plaintiffs have set out the words alleged to have been uttered by the 1^st defendant in verbatim.  The expression “or substantially similar defamatory words” plainly refer to those words as set out in verbatim.  It could not possibly have embarrassed or confused the 1^st defendant who should have no difficulty in deciding how to plead his case to those paragraphs.

19. This objection fails.

C.2 Paragraphs 5 and 9 —“brazenly told huge lies…”

20. Paragraph 9 refers to the words of republications by the newspaper set out in paragraphs 6.1 and 6.3 and then went on to plead that those words, in their innuendo meaning, mean that the 1^st plaintiff brazenly told huge lies by “falsely telling the media and the public that the 2^nd defendant owed her HK$3 billion which it was wrongly refusing to pay her.”  Paragraphs 6.1 and 6.3 are said to be republications of words actually uttered by the 1^st defendant and as pleaded in paragraph 5.

21. Mr Shieh submitted that whatever might have been the meanings conveyed by the words pleaded in paragraphs 6.1 and 6.3, if the originally uttered words are incapable of bearing the meaning pleaded in paragraph 9, then the plea in paragraph 9 must be struck out for the simple reason that the 1^st defendant cannot be held responsible for what a third party had attributed to him.  It is plain from a perusal of the words pleaded in paragraph 5 that they are incapable of giving rise to the meaning pleaded in paragraph 9.  Nothing in paragraph 5 relates to the justifiability or truthfulness of the HK$3 billion claim.  On the contrary, on the 1^st plaintiff’s own plea, what the 1^st defendant actually uttered was that he would not respond and the 1^st plaintiff should go to court.  Paragraph 9 should therefore be struck out irrespective of any meaning borne out by the republications pleaded in paragraphs 6.1 and 6.3.

22. The content of the declaration referred to in paragraph 5 is pleaded in paragraph 10.  To recap, the 1^st plaintiff stated in the declaration, when she visited Macau in 2002, the 1^st defendant warned her not to return and that that the 2^nd defendant owed her HK$3 billion for her contractual entitlements to remuneration as an executive director and retained dividends on her ordinary and preference shares.

23. In my view, what the 1^st defendant allegedly said about the HK$3 billion claim has to be understood in the entire context of the words complained of which were uttered in response to the 1^st plaintiff’sdeclaration.  On a proper reading, it is plainly arguable (a) that when the 1^st defendant allegedly said that the declaration was highly defamatory and that the accusations contained in the declaration were untrue, he was not confining himself only to the allegation that he had prevented the 1^st plaintiff from entering Macau; and (b) that he referred to the entire declaration, which clearly includes the HK$3 billion claim.

24. Accordingly, I am unable to accept Mr Shieh’s submission that the words complained of in paragraph 5 are incapable of giving rise to the innuendo meaning pleaded in paragraph 9. 

25. This objection also fails.

C.3 Paragraphs 6.1 and 8 — “brazenly told huge lies…”

26. Mr Shieh submitted that paragraph 8 relies on the words pleaded in paragraph 6.1 which simply pleads that the 1^st defendant had said that he had not said that he was not allowing the 1^st plaintiff to step foot in Macau.  No value judgment or words of critique were said of the 1^st plaintiff.  The words are therefore incapable of bearing the pleaded defamatory meaning of the 1^st plaintiff brazenly telling huge lies by falsely telling the media and public that the 1^st defendant had warned her not to enter Macau.

27. Again, the words complained of in paragraph 6.1 must be considered in their entirety.  There the 1^st defendant was reported to have said that the declaration posted by the 1^st plaintiff was highly libellous.  As noted, the declaration included the allegation that the 1^st defendant had warned the 1^st plaintiff not to enter Macau again.  It is therefore incorrect for Mr Shieh to submit that paragraph 6.1 only pleads that the 1^st defendant denied that he had told the 1^st plaintiff not to enter Macau.  And when the words complained of in paragraph 6.1 are considered in their entirety, it is clearly arguable that they are capable of bearing the meaning pleaded in paragraph 8.

28. This objection must fail.

C.4 Paragraphs 11, 12 and 15 — “Money will go back to her”

29. The part that is objected to is in paragraph 15 which pleads that “Any money that [the 1^st plaintiff] will supposedly donate to charity will in fact go back to her via her own company, [the 2^nd plaintiff], which receives her donations.”

30. Mr Shieh submitted that the said words complained of in paragraph 15 are not the words originally uttered by the 1^st defendant but republished words.  If the originally uttered words are incapable of bearing the defamatory meaning alleged, the 1^st defendant cannot be held responsible for whatever defamatory embellishments newspapers chose to put on any word that he had uttered.  The words complained on in paragraph 11 are not capable of bearing the meaning pleaded in paragraph 15 which is not being objected to.  The fact that the 2^nd plaintiff is said to be the 1^st plaintiff’s company is incapable of carrying with it the meaning that the money would “go back to her”.

31. Mr Shieh next submitted that the republished words in paragraph 12 are not capable of bearing the meaning pleaded in paragraph 15 either.

32. In my view, on a fair reading of the words complained of as pleaded in paragraphs 11 and 12, the sting is that the purported donation to be made by the 1^st plaintiff to the 2^nd plaintiff is a sham arrangement.  It follows that either the 1^st plaintiff lied when she said she would donate HK$6 billion to the 2^nd plaintiff or even if she indeed would make the donation, the monies received by the 2^nd plaintiff would go back to her.  Thus the words complained of in both paragraphs 11 and 12 are capable of bearing the meaning pleaded in paragraph 15 which is now being objected to.

33. This objection fails.

C.5 Paragraphs 16 and 17 — “sham charitable foundation”

34. The innuendo meaning pleaded in paragraph 16 is based on the words pleaded in paragraph 12.  The plaintiffs further plead that such meaning arose out of the matters pleaded in paragraph 17.

35. Mr Shieh submitted that the sting pleaded in paragraph 16 is that the 2^nd defendant falsely portrays itself as a charity when in fact it would retain money for the 1^st plaintiff’s use.  But the most that could be derived from the pleaded words in paragraph 12 is that the 2^nd plaintiff was “her company”, that is, the 1^st plaintiff’s company.  This does not impute any act or omission on the part of the 2^nd plaintiff.  No act of portraying by the 2^nd plaintiff was mentioned or suggested in those words.

36. Turning to paragraph 17, Mr Shieh submitted that the matters in support of innuendo do not show that the readers with the alleged “special knowledge” would have understood the words as meaning the 2^nd plaintiff had been doing any act sort of “portraying”.  The charity status of the 2^nd plaintiff was allegedly announced by the 1^st plaintiff at a press conference.  But that was not an act of portrayal by the 2^nd plaintiff.  Nor was it pleaded as such.  Mr Shieh therefore submitted that the words pleaded in paragraph 12 are not capable of bearing the meaning pleaded in paragraph 16 by way of innuendo pleaded in paragraph 17.

37. As noted, the sting in paragraph 12 is that the purported donation by the 1^st plaintiff to the 2^nd plaintiff is a sham.  In my view, the words complained of, read together with the matters pleaded in paragraph 17, are capable of bearing the innuendo meaning pleaded in paragraph 16.  The attack on the lack of matters pleaded in support of the alleged “portrayal” by the 2^nd plaintiff may well support an application for further and better particulars.  But it is not a case for striking out.

38. This objection fails as well.

C.6 Paragraphs 18 to 23 — Girl Guide award and “routine matter”

39. Here, the actual words allegedly used by the 1^st defendant were set out in paragraph 18.  Paragraph 19 then pleads various versions of republication.

40. Mr Shieh first submitted that the alleged defamatory meanings pleaded are not defamatory at all :

(1)	The sting in paragraph 21 is that the 1st plaintiff could not walk and therefore could not do any good deeds such as helping others to cross the road.  That statement, which is neutral and devoid of any moral content, is not capable of affecting the 1st plaintiff’s reputation.  Thus the meaning in paragraph 21 is not defamatory.
(2)	Paragraph 22 stresses the routine-ness of the award but giving the award to the 1st plaintiff as a matter of routine does not defame her.

41. Mr Shieh’s objection to paragraph 23 is that neither the originally uttered words pleaded in paragraph 18 nor the republications in paragraph 19 are capable of bearing the alleged defamatory meaning pleaded there.  Mr Shieh first submitted that no particulars had been identified in paragraph 23 in support of the plea of innuendo.  But that has been cured by the re-amendment introduced to paragraph 23 by deleting the plea of innuendo meaning.  It is now pleaded that the defamatory meaning arose by implication and/or inference.  Mr Shieh next submitted that there is nothing in any of the words pleaded in paragraph 19 which are capable of supporting the meaning that the 1^st plaintiff had actually done anything, let alone done any acts by way of deceiving the public.

42. In my view, the words allegedly uttered by the 1^st defendant and reproduced by the press must be understood in context.  They were allegedly said at the Hong Kong Girl Guides Association Annual Dinner and the 90^th Anniversary Opening Ceremony where, apparently, the 1^st plaintiff was presented by the Association with a 20 Year Service Award.  The sting of the words complained of is obviously that the 1^st plaintiff did not deserve the award because she had not done any charitable deed or made any donation.  Hence the routine-ness of the award.  I am of the view that the meanings pleaded in both paragraphs 21 and 22, understood in their proper context, are arguably defamatory.

43. Paragraph 23 refers to the innuendo meaning of the words complained of.  Bearing in mind the sting which I have identified above, I am of the view that as the pleadings now stand, they are just arguably capable of bearing the innuendo meaning pleaded.  Further and better particulars are in order.  But the lack of those particulars does not justify a case for striking out.

44. This objection also fails.

C.7 Paragraphs 24 to 28 — the Announcement

45. Paragraph 24 pleads the content of the Announcement, which on its face, was the 2^nd defendant’s announcement.

46. Mr Shieh complained that no facts or materials have been pleaded to support the averment that the Announcement, which on its face was published by the 2^nd defendant, can be said to have been published or caused to be published by the 1^st defendant as well.  The plea that he is the founder and managing director of the 2^nd defendant is not sufficient to affix him with responsibility of acts done by the 2^nd defendant.  The defendants have before taking out the Striking Out Application, invited the plaintiffs to plead the necessary particulars but the plaintiffs have declined the invitation.

47. In my view, further and better particulars of the 1^st defendant’s involvement in the publication of the Announcement is called for.  It is not sufficient to argue, as Mr Lee did, that because the 1^st defendant is Dr Stanley Ho and because he is its founder and managing director, the 2^nd defendant could not have issued the Announcement without his involvement.  That said, the proper course open to the defendants is to apply for further and better particulars and not striking out.

48. Mr Shieh then submitted that the defamatory meaning pleaded in paragraph 25, as a matter of ordinary and natural meaning, is not supportable by the words pleaded in paragraph 24 because the denial of what the 1^st plaintiff had said are not capable of bearing the meaning that the 1^st plaintiff had lied in making her accusation.  I disagree.  It is in my view certainly arguable that the words are so capable.

49. Mr Shieh also submitted that the defamatory meaning pleaded in paragraph 25, as a matter of innuendo meaning, is not supported by the matters pleaded in paragraph 27.  He complained that the content of the letter in the Hong Kong Economic Times dated 23 November 2005 (“the Letter”) has not been pleaded and there are no pleaded materials for the court to assess how the words in paragraph 24 would be understood by the notional reasonable reader who had read that Letter.  The short answer to this complaint is that further and better particulars (and not striking out) should be sought.

50. At the hearing, I was provided with a copy of the Letter.  Mr Shieh submitted that a perusal of the Letter will put it beyond doubt that the Announcement is incapable or meaning that the 1^st plaintiff had lied.  I disagree.  The substance of the Letter is that the plaintiff was entitled to the dividends referred to and she strongly demanded the 1^st defendant to supervise and urge the 2^nd defendant to return the same to her.  The Announcement is not just a denial of what the 1^st plaintiff had said in the Letter.  It went on to say that all dividends that she was entitled to had been verified, approved and distributed to her.  When it is read together with the Letter, the Announcement is clearly capable of bearing the innuendo meaning pleaded in paragraph 27.

51. As to paragraph 26, Mr Shieh first raised the objection that the inclusion of the 2^nd plaintiff is not justified.  That objection has now been cured by the re-amendment introduced to paragraph 26 by deleting the reference to the 2^nd plaintiff.

52. Mr Shieh next submitted that the sting in paragraph 26 is that the 1^st plaintiff had acted unreasonably to cause financial loss to the 2^nd defendant and its shareholders.  However nowhere in the actual words used in paragraph 24 is there any reference to financial loss.  A mere reference to damaging is incapable of carrying the ordinary and natural meaning of her causing financial loss.  I disagree.  The reference “she keeps on damaging the company and other shareholders through unreasonable acts” is plainly capable of including financial loss.

53. Finally on the innuendo meaning of paragraph 27 arisen from the matters pleaded in paragraph 28, Mr Shieh submitted that even assuming that the readers would have known that matters relied on in paragraph 28, namely, the 1^st plaintiff had gifted her shares in the 2^nd defendant to the 2^nd plaintiff, the words pleaded in paragraph 24 are still incapable of suggesting any act, omission or conduct of the part of the 2^nd plaintiff.  Similarly, this objection has now been cured by the deletion of the reference to the 2^nd plaintiff by the re-amendment to paragraph 26.

C.8 Conclusion

54. For the above reasons, the Striking Out Application fails and I dismiss it accordingly.

D. The Disallowing Application

55. The Disallowing Application falls together with the Striking Out Application.  I will dismiss it as well.

E. The O14A Application

56. The O14A Application is a fall-back of the Striking Out Application.  It seeks a determination from the court that those paragraphs of the ASOC being objected to are either not capable of bearing the meaning or defamatory meaning alleged.  Mr Shieh relied on the same arguments as advanced in the Striking Out Application.

57. Mr Lee submitted that the court does not have jurisdiction under Order 14A to determine if the words complained of in a defamation action are capable of bearing the meaning as alleged.  Contrast the position under Order 82, rule 3A of the English Rules of the Supreme Court under which the court may determine whether or not the words complained of are capable of bearing a particular meaning attributed to them in the pleadings.  Rule 3A was introduced in England in 1994 but Hong Kong did not follow suit.  So there is no equivalent provision in the Rules of the High Court which confers on the court jurisdiction to determine if the words complained of are capable of bearing the meaning as alleged.

58. However, in England, even after the introduction of Order 82, rule 3A, at least in one case, an application had been brought under Order 14A for a determination by the court whether the words complained of were capable of bearing any defamatory meaning : see Berkoff v. Burchill [1996] 4 All ER 1008, CA.  It is not apparent from the judgment why the application was brought under Order 14A and not Order 82, rule 3A.  And no issue had been taken on jurisdiction under Order 14A.

59. For present purposes, it is not necessary for me to make a definite ruling on this jurisdiction point.  For even assuming that the court has jurisdiction, in light of my ruling in the Striking Out Application that the various paragraphs in question are capable of bearing the meaning alleged, the O14A Application must fail.  I will dismiss it accordingly.

F. The Re-Amendment Application

60. I will allow the Re-Amendment Application.

G. Costs

61. Finally on costs, I will make an order nisi that :

(1)	the plaintiffs shall have the costs of the Original Summons and the Amendment Summons in any event, to be taxed if not allowed; and
(2)	the defendants shall have the costs of the Re-Amendment Application in any event, to be taxed if not agreed.

[1]   The Amended Summons is couched in such terms that it covers all paragraphs 5 to 28 of the ASOC.  But in his submissions, Mr Shieh SC, for the 1^st defendant, confirmed that the Striking Out Application does not apply to paragraph 14 of the ASOC or any matter that is not covered by his submissions.

[2]   Mr Shieh cited the 9^th edition of Gatley because it refers procedurally to the old English equivalent of the Rules of the High Court.

Annex

Re-Amended STATEMENT OF CLAIM

1. The First Plaintiff is the First Defendant’s sister and is widely known as the “Tenth Sister”. The Second Plaintiff is a charitable foundation established by the First Plaintiff in 2003 in order to establish, operate and manage schools, elderly institutions, clinics and hospitals and to carry out non profit making art and cultural studies internationally.

2. In June 2005 the First Plaintiff donated her 6,000 shares consisting of both ordinary and preference shares in the Second Defendant to the Second Plaintiff.  Those shares are valued at not less than HK$6 billion and, in the view of experts instructed by the First Plaintiff, considerably more.  The First Plaintiff is waiting for the Second Defendant to register the transfer of ownership from her to the Second Plaintiff.  The First Plaintiff is owed approximately HK$3 billion by the Second Defendant for her contractual entitlements to remuneration as an Executive Director of the Second Defendant and retained dividends on her ordinary and preference shareholding in the Second Defendant that should have been distributed to shareholders in accordance with Article 46 of the constitution of the Second Defendant (“Article 46”).

3. The First Defendant is the founder and the managing director of the Second Defendant.  The Second Defendant is a gambling casino in Macau.

4. The Apple Daily, Oriental Daily, Sing Tao Daily,Ming Pao, We Wei Po, Hong Kong Daily News and The Sun are widely read and influential newspapers published within the jurisdiction of the court.

5. On 22 June 2005 the First Defendant spoke the following defamatory words in Chinese, or substantially similar defamatory words, to a group of assembled journalists outside his office in the Shun Tak Centre at approximately 4.00pm - 4.30pm:

今日我見過大律師同律師，亦都好清楚咁睇份聲明，我覺得佢極具誹謗性，我絕對有權控告十姑娘同《X報》！28日我哋會舉行股東會，所以對其他事我唔想評論，交畀律師處理！總之我呢世人從來無打輸過官司，同十姑娘的官司無論在香港還是澳門，佢都輸晒，所以我的大律師好有勝算，十姑娘有嘢講可以去股東大會講。佢話有人唔畀佢去澳門，無人唔畀佢去呀，我又唔係政府、又唔係警察廳，幾時唔畀佢去呀？佢去，我好歡迎，佢可以去申辯佢嘅理由，然後由股東做決定。但佢咁樣經傳媒同埋以聲明形式去講，係不盡不實的指責，好不負責任！

記：十姑娘提到澳娛仲欠佢 30 億分紅？

秘：何生唔會答、唔會就內容回應。

何：30 億的問題已經講過啦！澳門係法治之區，佢可以經法院（解決問題），所有決定亦會由股東決定。點解佢唔去股東大會呢？我都唔明白！

 The following is a true and accurate translation into English of those words:

I met my barristers and solicitors today and I have clearly read the declaration.  I find it very defamatory and I have absolute right to sue the Tenth Sister and “XX Pao”!    On 28th, we will hold a General Shareholders Meeting, so I don't want to give any comment on other matters.  It has been passed to my lawyer! What I can say is I have never lost in any law suit in my life.  In all of the law suits between the Tenth Sister and I, no matter whether in Hong Kong or in Macau, she lost all of them.  Therefore, my barrister is confident I will win.  If the Tenth Sister has anything to say, she can go to the shareholders meeting to say it.  She said someone has disallowed her to go to Macau, no one has done so.  I am not the government and not the police.  When did I not allow her to go to Macau? If she goes, I would welcome her.  She can set out her reasons and let the shareholders decide.  However, it is very irresponsible of her to abuse the media and make accusations which are not true.

Reporter: “The Tenth Sister mentioned that STDM owes her 3 billion of dividends.”

Employee of the First Defendant: “Mr Ho will not respond to that matter.”

The question of 3 billion has already been raised.  Macau is governed by the rule of law.  She can go to the court and all the decisions will be made by the shareholders.  Why she is not going to the shareholders meeting?  I don’t understand!

6. The First Defendant spoke and published the said words with the intention that they or their substance or their gist or sting would be republished widely in the media.  Alternatively, it was the natural and probable or reasonably foreseeable result of his speaking such words that they would be so republished.  Accordingly the First Defendant authorised or caused and is legally responsible for the republication of his defamatory words which occurred in the following newspapers in their editions dated 23 June 2005:

6.1 the Apple Daily in an article entitled Casino King pointed out that the Tenth Sister’s advertisement defamatory which contained the following words in Chinese a true translation of which is as follows:

（第一被告人）十分勞氣地向傳媒表示，他細閱十姑娘刊登的廣告內容，經諮詢律師意見，律師認為廣告內容含極高的誹謗性，他絕對有權控告十姑娘及刊登廣告的報章誹謗，而且勝訴機會很高。

「我呢世人打官司未輸過，我同十姑娘都打過好多官司，無論喺香港或澳門，都係佢輸晒！」何鴻燊接著說：「大律師同我講，如果今次告佢誹謗，我都會大勝訴！」

何鴻燊指出，十姑娘對澳娛有任何訴求，都可以在股東大會上提出，各股東會根據其訴求作出決定，他指摘胞妹在報章上刊登廣告，對股東作出「不忠不實」的指摘，是一種不負責任的行為。

「冇話過唔准佢踏足澳門」

十姑娘指遭人警告禁止踏足澳門，何鴻燊回應稱：「我冇話過唔准佢踏足澳門，我唔係政府，又唔係警察廳……」

          a true translation of which is as follows:

(The First Defendant) expressed furiously to the press that he had read carefully the content of the advertisement posted by the Tenth Sister.  He has sought the advice of a lawyer who thought that the content of the advertisement was highly libellous and that he was absolutely entitled to sue the Tenth Sister and the newspapers who posted the advertisement for libel and the chance of winning the case was great.

“I have never lost in any law suit in my life.  The Tenth Sister and I also had a lot of law suits against each other, no matter in Hong Kong or Macau, it's always her who has lost!”, Stanley Ho continued, “the barrister told me that if I sued her for libel this time, I would surely win.”

Stanley Ho pointed out that if the Tenth Sister had any request to STDM, she could always raise it at the General Shareholders Meeting.  The shareholders would make a decision on her request.  He criticised his full younger sister for the posting of an advertisement in the newspapers which criticised the shareholders “untruthfully” and said it was an irresponsible act.

"I have not said that I am not allowing her to step her foot on Macau"

The Tenth Sister stated that she was once warned not to step foot on Macau.  “I have not said that I will not allow her to step foot on Macau.  I am not the government, nor the Police…” 

6.2 Oriental Daily in an article entitled Stanley Ho intended to accuse the Tenth Sister and Ming Pao of defamation contained the following words in Chinese a true translation of which is as follow:

對於十姑娘在廣告中提及有人禁止她踏足澳門，何鴻燊怒氣沖沖說：「十姑娘有乜申訴，可以同股東大會講，佢唔係唔可以踏足澳門，呢個唔係事實，我唔係政府，唔係檢察廳，有乜權唔畀佢踏足澳門。」

他又質疑十姑娘透過報章向澳娛表達不滿之舉動，「佢應該喺股東大會中表達佢所有嘅理由，由咁多個股東決定，唔好利用傳媒同賣廣告，作不盡不實嘅指摘，咁做係唔負責任。」

          a true translation of which is as follows:

As to the fact that the Tenth Sister mentioned in the advertisement that someone forbid her to step foot on Macau, Stanley Ho said furiously, “If the Tenth Sister has any request or complaint, she can talk to the shareholders during the General Shareholders Meeting.  It is not true that she cannot step foot on Macau.  I'm not the government, nor the Police.  How would I have the right to forbid her from stepping foot on Macau?”

He also questioned the Tenth Sister's act in expressing her discontent to STDM through the newspapers.  “She should express all her reasons in the General Shareholders Meeting and let all the shareholders decide and shouldn't use the media and through posting of advertisement to criticise untruthfully.  Such action is irresponsible.”

6.3 Sing Tao Daily in an article entitled Casino King dissatisfied with the contents of the advertisement and intended to sue the Tenth Sister contained the following words in Chinese a true translation of which is as follows:

何： 今日我見過大律師同律師，亦都好清楚咁睇份聲明，我覺得佢極具誹謗性，我絕對有權控告十姑娘同《X報》！28日我哋會舉行股東會，所以對其他事我唔想評論，交畀律師處理！總之我呢世人從來無打輸過官司，同十姑娘的官司無論在香港還是澳門，佢都輸晒，所以我的大律師好有勝算，十姑娘有嘢講可以去（股東大會）講？佢話有人唔畀佢去澳門，無人唔畀佢去呀，我又唔係政府、又唔係警察廳，幾時唔畀佢去呀？佢去，我好歡迎，佢可以去申辯佢嘅理由，然後由股東做決定。但佢咁樣經傳媒同埋以聲明形式去講，係不盡不實的指責，好不負責任！

記： 十姑娘提到澳娛仲欠佢 30 億分紅？

秘： 何生唔會答、唔會就內容回應。

何： 30 億的問題已經講過啦！澳門係法治之區，佢可以經法院（解決問題），所有決定亦會由股東決定。點解佢唔去股東大會呢？我都唔明白！

a true translation of which is as follows:

Ho: I have seen the barrister and the lawyer today and I have read that statement very carefully.  I found that it was highly libellous.  I am absolutely entitled to sue the Tenth Sister and X Pao!  On 28th, we will hold a General Shareholders Meeting, so I don't want to give any comment on other matters.  It has been passed to my lawyer!  All in all, I have never lost in any law suit in my life.  The law suits between the Tenth Sister and I, no matter in Hong Kong or Macau, she lost them all.  So my barrister says I have a very good chance to win.  If the Tenth Sister has got anything to say, she could say it (in the General Shareholders Meeting).  She said that someone forbade her to go to Macau.  No one forbade her to do so.  I am not the government nor the Police.  When was she not allowed to go?  If she goes, I welcome her very much.  She can put forward her defence and let the shareholders decide.  But she spoke through the media and in the form of a statement.  It's an untruthful accusation and is very irresponsible!

Reporter: The Tenth Sister also mentioned that she was still owed three thousand million of dividend?

Secretary: Mr. Ho will not answer, he will not respond in regard of that issue.

Ho: I have talked about the issue of the three thousand million already.  Macau is ruled by law.  She can (solve the problem) through the court and all the decisions will be made by the shareholders.  Why didn't she attend the General Shareholders Meeting?  I don't understand!

7. The words set out in paragraphs 5, 6.1 to 6.3 referred to the First Plaintiff by reason of the description of her as the First Defendant’s “Tenth Sister”.

8. In their natural and ordinary meaning and/or in their innuendo meaning the words complained of in paragraphs 6.1 to 6.3 meant and were understood to mean that the First Plaintiff brazenly told huge lies and acted irresponsibly by falsely telling the media and the public that the First Defendant had warned her not to enter Macau; and that the Second Defendant owed her HK$3 billion which it was wrongly refused to pay her.

9. In their further innuendo meaning the words complained of in paragraphs 6.1 and 6.3 meant and were understood to mean that the First Plaintiff brazenly told huge lies and acted irresponsibly by falsely telling the media and the public that the Second Defendant owed her HK$3 billion which it was wrongly refusing to pay her.

9.10.   The innuendo meanings set out above arises from the fact that a significant but unquantifiable number of the publishees would have known either directly or indirectly that on 22 June 2005 the First Plaintiff published what the First Defendant referred to as a “declaration” in two Hong Kong newspapers, Ming Pao and We Wei Po, the contents of which were also widely summarised elsewhere in the media, in which she stated that when she had visited Macau in 2002 the First Defendant had warned her never to return and that the Second Defendant owed her HK$3 billion for her contractual entitlements to remuneration as an executive director and retained dividends on her ordinary and preference shares that should have been distributed in accordance with Article 46.  In the premises, the First Plaintiff will ask the court to infer that the words complained of in paragraphs 6.1 to 6.3 were understood by those persons who read them with the requisite knowledge set out herein to bear the meanings set out at paragraphs 8 and 9 above.

10.11. On 28 September 2005 the First Defendant spoke the following defamatory words in Chinese, or substantially similar defamatory words, to a group of assembled journalists at the CRC Open, a tennis tournament held at Causeway Bay:

可憐的十姑娘…對十姑娘我覺得好可惜！佢只係細我一年，我覺得好可惜，佢成日坐輪椅，又成日匿響屋企唔出嚟露面。佢屋企人應該帶佢睇醫生，我驚佢係老人癡呆症開始。……我提議佢去青山吹風。

……

佢話我阻佢做善事？喂，香港、澳門有邊個慈善家可以捐六十億？最多都係 10 億，捐錢係要有受益人，李嘉誠捐畀港大，某某捐畀公益金咁，佢呢個 60 億大過李嘉誠、霍英東任何一個闊佬，佢仲係捐畀自己公司，你話 600 億都得啦，計我話一個巴仙都唔好信。

          a true translation of which is as follows:

Poor Tenth Sister . . . I feel so sorry for her.  She is only one year younger than me.  I feel sorry that she always needs to get around in a wheelchair and always hides herself at home.  She is seldom seen publicly.  Her family should take her to a doctor.  I am afraid that she starts to have the Alzheimer’s disease … I suggest that she goes to the Castle Peak to go for a blow.

. . .

She said that I prevented her from doing any charitable good deeds?  Hey, which philanthropists in Hong Kong and Macau can afford to donate $6 billion?  The maximum that one can afford to donate is $1 billion.  There must be a beneficiary for the money donated.  Li Ka Shing donated money to the University of Hong Kong, and someone donated money to the Community Chest.  Her donation of $6 billion is mightier than the donations from the wealthy generous men like Li Ka Shing and Fok Yin Tung.  However, her donation is to her own company.  You can even say she is donating $60 billion.  I would say that you cannot believe 1 per cent of what she says.

11.12.   The First Defendant spoke and published the said words with the intention that they or their substance or their gist or sting would be republished widely in the media.  Alternatively, it was the natural and probable or reasonably foreseeable result of his speaking such words that they would be so republished.  Accordingly the First Defendant authorised or caused and is legally responsible for the republication of his words which occurred in the media following newspapers on 29 September 2005:

11.112.1.Apple Daily in an article entitled The King of Gambling asked the Tenth Sister to go for a blow at Castle Peak contained the following words in Chinese a true translation of which is as follows:

…賭王一聞「十姑娘」，即滔滔不絕說：「對佢覺得好可惜！……佢就可憐到要坐輪椅，唔露得面匿響屋企，我怕佢係老人癡呆症開始。……我提議佢去青山住吓吹風…」

……

賭王未肯罷休，又針對十姑娘追討所欠股息發表意見。他說：「佢話我阻住佢做善事喎，喂，香港、澳門有邊個慈善家可以捐六十億？人哋捐十億都咁厲害，佢咪大過晒李嘉誠、霍英東呢啲闊佬？捐錢係有受益人，佢捐嚟捐去咪捐畀自己公司，你話六百億都得啦，真係一個巴仙都唔好信！」

a true translation of which is as follows:

… Once the King of Gambling heard “the Tenth Sister”, he kept on saying without stopping, “I have pity on her.   … she is so pitiful that she is wheelchair-bound.  She can't be seen in the public and hides herself at home.  I am afraid that she has the start of Alzheimer's Disease… I suggest that she goes to the Castle Peak for a blow.

. . .

The King of Gambling is not willing to retire. In regard of About the Tenth Sister's demand for the dividend that was owed to her, he said, “She said that I prevented her from doing any charitable good deeds, hey, which philanthropists in Hong Kong and Macau can donate six thousand million?  Well, he was already so powerful to have donated one thousand million, then she is mightier than these generous wealthy men like Li Ka Shing, Fok Yin Tung, etc.  There is always a beneficiary for donation.  It is always her company that she donated the money to.  Then you can even say that you have donated 60 billion.  Actually you can't even believe in 1% of what she said.”

11.212.2Sing Pao in an article entitled Stanley Ho suggested the Tenth Sister to go for a blow from the sea at the Castle Peak. Does not believe that his full younger sister had donated six thousand million contained the following words in Chinese a true translation of which is as follows:

…… 對佢覺得好可惜。佢只係細我一年……佢可憐到成日坐輪椅，又成日唔出嚟露面。佢屋企人應該帶佢睇醫生，好驚佢係老人癡呆嘅開始……我都提議十姑娘坐吓纜車吹風，去青山就最好喇，嗰度海風最好。

……

十姑娘又於本月 23 日發表聲明追討澳娛股息，並指賭王何鴻燊阻撓她將 60 億捐予她所成立的滿威利基金會，賭王對此說：「我阻佢做善事？香港澳門有邊個慈善家可以捐 60 億？最多都係 10 億，捐錢係要有受益人，李嘉誠捐畀港大，某某捐畀公益金咁，佢呢個 60 億大過李嘉誠、霍英東任何一個闊佬，佢仲係捐畀自己公司，你話 600 億都得啦，計我話一個巴仙都唔好信。」

a true translation of which is as follows:

… I feel that she's very pitiful.  She is only one year younger than me.  . . . she is so pitiful that she is wheelchair-bound and is seldom seen publicly.  Her family should take her to see the doctor.  I'm very afraid that she has the start of Alzheimer's Disease… I would suggest the Tenth Sister take the tram to go for a blow.  It's the best to go to the Castle Peak.  The sea breeze is the best over there.

. . .

On the 23^rd of this month, the Tenth Sister once again announced her demand for STDM’s dividend.  She also mentioned that Stanley Ho is deterring her from donating $6 billion to the Moon Valley Foundation that she has established.  In response, Stanley Ho said, “I prevented her from doing any charitable good deeds?  Which philanthropists in Hong Kong or Macau could donate six thousand million?  The maximum would be one thousand million.  There must be a beneficiary for the money donated.  Li Ka Shing donated money to the University of Hong Kong, someone donated money to the Community Chest, etc.  Well, her six thousand million is mightier than any wealthy generous men like Li Ka Shing or Fok Yin Tung.  She made the donation to her own company, then you can even say sixty billion.  Well, I would say that you can't even believe in 1% of it.”

11.312.3The Sun in an article entitled Does not believe the donation of six thousand million contained the following words in Chinese a true translation of which is as follows:

                    賭王：我真係戥佢可憐，我游水打波又跳舞，我大佢一年啫……佢可憐到要坐輪椅，成日都冇露面。我叫佢家人應該帶佢睇醫生！……我就提議佢坐多啲纜車，吹多啲風，去海風就去青山！……

           記者：報道仲話十姑娘話你阻佢做善事喎？

賭王：我點會阻佢做善事吖，我自己喺香港同澳門做咁多善事，香港同澳門咁多慈善家，佢自己話捐六十億，人哋最多捐十億！人捐錢就有受益人，李嘉誠捐畀香港大學為教育，阿某某捐錢去東華做慈善呀咁…佢捐就捐畀自己公司，佢話六百億都得啦！計我話就 1% 都唔好信佢！

           a true translation of which is as follows:

King of Gambling:

I really find her pitiful. I swim, play tennis and dance.  I am just one year older than her and she is so pitiful that she's wheelchair-bound and is seldom seen in the public.  I would ask her family to take her to see the doctor!  …I would suggest her to take the tram more often to go for a blow from the mountain and go to the Castle Peak for a blow from the sea! …

Report:

It was reported that the Tenth Sister accused you of preventing her from doing any charitable good deeds?

King of Gambling:

How would I prevent her from doing any charitable good deeds?  I myself have acted charitably many times in Hong Kong and Macau.  There are so many philanthropists in Hong Kong and Macau.  She herself said that she donated six thousand million.  Someone had donated a maximum of one thousand million.  For donation, there has to be a beneficiary.  Li Ka Shing donated to the University of Hong Kong for education, someone donated money to Tung Wah for charity, etc....  She donated to her company, she could even say sixty billion!  Well, I would say that you can't even believe in 1% of what she said!