LACHMAN NARAIN v. TARGET NEWSPAPERS LTD AND ANOTHER

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J U D G M E N T

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Macdougall, J.A:

1. This is the judgment of the court.

2. The defendants, who are the proprietor and publisher and the editor respectively of the weekly Target Intelligence Report, appeal against an interlocutory order of Mortimer J. dated 14 July 1989 restraining them from printing, circulating, distributing or otherwise publishing or causing to do so published words to the effect that:

"a dictatorship or government by force would be preferable to a democratic Government in Hong Kong if the Plaintiff were to be a member or leader of such democratic Government."

3. The matter arose as a consequence of an article published on 28 July this year of the defendants in Target Intelligence Report under the headline "The Trustees of Power" and sub-headline "Whom Shall We Trust?". The relevant portions of the article are as follows:

"Today, Hong Kong is talking about democracy: one vote for one man; freedoms and all that stuff; and maintaining the status quo in order not to suffer the People's Republic of China (PRC) and its type of rule, which is now known as the one-ounce-of-lead form of justice: Agree, or get a shot in the pack of the neck.

For whom should Mr. Chan Tai Man vote? What should be the criteria for choosing a candidate for the Legislative Council? Regional Council? Urban Council?

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Hong Kong, by 1997, is to come under the aegis of a government which is still operating under the precepts of the feudalistic past, when a headsman's axe was more powerful than the pen.

The student demonstration of June 4, 1989, in Tianamen Square, and its suppression by PRC-Government tanks running over students, while the gallant forces of Messrs Deng Xiaoping and Li Peng shot students who didn't move out of the way quickly enough, is what Hongkong knows is in store for it, come 1997.

The only alternative to the rule of Communist China is a democracy, or some other type of representative government.

What seems to have been forgotten, however, is that no matter what type of representative government Hong Kong is to progress towards, it will need people to implement the aspirations and desires of those who remain here after 1997.

Who will rule us, directly or indirectly?

What will be the criteria for nominating a candidate for election to office?

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He [the plaintiff] has made a little money, though not as much as Mr. K. Sital, unquestionably Hongkong's richest Sindhi, or even as much as Mr. Hari Harilela, who must rank as the third, or fourth, richest Sindhi in Hongkong.

More important that money, however, is intelligence. Does Mr. Lachman Narain possess great intelligence, or does he just hang on to the coattails of the high and the mighty?

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Yet there is talk that Mr. Narain could be nominated for the Legislative Council, with the help of Mr. William Purves, of course.

A man who has done very little to help Hongkong other than to make suits for tourists, who has never poked his head into politics before, is suddenly being tipped as a potential leader of Hongkong.

If democracy comes to this level, then perhaps the rule of, the bullet is preferable.".

4. On 11 July the plaintiff filed an inter partes summons in which he sought an interlocutory injunction restraining the defendants from printing circulating, distributing or otherwise publishing, inter alia, words to the effect we have already mentioned and which formed the subject of the judge's order.

5. In his affirmation in support of his application for an injunction the plaintiff affirmed, inter alia, as follows:

"11. I believe and have also been advised by my legal advisers that parts of this article in their natural and ordinary meaning were and were understood to be that:-

(iv) If a democratic government came in to being in Hong Kong and I were to be a member of it, then it would be preferable to have a dictatorship that governed by force and intimidation;".

6. In an affidavit sworn on his own behalf and that of the 1st defendant in opposition to the plaintiff's summons and filed on the 13th July, the 2nd defendant swore, inter alia the following:

"3. I wrote the article in question.

4. If and in so far as the Court should find that the article bears the meaning alleged in para. 1(iii) of the Plainfiff's summons, and that that meaning is defamatory, the Defendants rely on the defence of fair comment on a matter of public interest. I understand front our legal advisers that this meaning is said to derive from the second paragraph of the second column on page 10 of the article (Here the 2nd defendant was referring to the final paragraph of that part of the article set out above). The facts, inter alia, on which the comment was based were the facts set out in the immediately preceding paragraph (Here the 2nd defendant was referring to the penultimate paragraph of that part of the article set out above). I verily believe those facts to be true and the Defendants; will prove those facts. The comment expressed a view which I held. Obviously, it was not to be read literally: I was and am emphatic that a nomination of the Plaintiff for LegCo would be a very bad thing for Hong Kong."

7. Apart from the words appearing in the last paragraph of the article there were other passages in respect of which the plaintiff sought interlocutory injunctive relief, but since the judge refused to grant that relief we do not consider it necessary to make particular reference to them.

8. The judge stated that he accepted that the law applicable to the granting of an interlocutory injunction in defamation cases was correctly summarised in three propositions advanced by Mr. Bunting and with which leading counsel who was then appearing for the plaintiff agreed. Mr. Bunting accepts that these propositions were accurately stated by the judge as follows:

"First, that the 'American Cyanamid' principles do not apply in these circumstances. Secondly, before a court can in its discretion grant an interlocutory injunction the court must be satisfied that the publication is defamatory of the Plaintiff, and thirdly there must be strong prima facie evidence that the statements are untrue."

9. The judge then referred to a passage in Herbage v. Times Newspapers Limited & Others, The Times Newspaper 1st May 1981 in which Lord Denning, having cited the words of Lord Esher in William Coulson and Sons v. James Coulson & Co. (1887) 3 LR 846, which were used and approved in Bonnard v. Perryman (1891) 2 Ch 269, went on to say that in a libel case "an injunction should not be granted unless the jury would inevitably come to the conclusion that the words bore the meaning alleged otherwise it would be an infringement of the freedom of the press; the freedom of everyone to say what they believe to be true.".

10. Having thus far correctly stated the law, the judge said that he was satisfied that the same principles can be applied to a defence of fair commient. Again, Mr. Bunting has no complaint about that.

11. The judge then quoted, what he expressed to be probably the most accurate and convenient expression of the law, which is contained in a passage in Atkin's Court Forms Vol. 25 (1982 Issue) at page 57:

"If the application is opposed, the Defendant must as arule swear an affidavit inanswer. The jurisdiction to grant an interlocutory injunction is exercised with caution although each case must depend on its own facts, as a rule no injunction will be granted in the following cases:"

12. The judge then set out those of the cases referred to in the same passage which he considered to be relevant. They are:

"(1) if the plaintiff is not clearly identified in the words complained of;

(2) if there is any issue as to the defamatory meaning of the words complained of;

(3) when the defendant swears that he will be able to justify the libel and the court is not satisfied that he may not be able to do so;

(5) where it may be fair comment on a matter of public interest; and

(6) where there is no irreparable harm and damages would be an adequate remedy."

In conclusion the judge said :

"Initially, therefore in the instant case I must not grant an interim injunction unless I am satisfied that a reasonable jury would inevitably find that the words used were libellous of the Plaintiff and that any defence fails. In a case of justification or fair comment the minimum requirement is that no reasonable jury could find for the Defendant on the issue. A corollary is that if any jury did so find, then the Court of Appeal would interfere. (Where I mention a jury of course that covers also a decision made by a judge sitting alone.) Even if those criteria are met still no injunction must be granted unless there is likelihood of repetition and it can be shown that irreparable harm will be done and that damages will not be an adequate remedy.".

13. The reasoning of the judge when deciding to grant the interlocutory injunction was as follows:

"The summons asks for an injunction preventing the publication of words to the effect that a dictatorship or government by force would be referable to democratic government in Hong Kong if the Plaintiff were to be a member or leader of such democratic government. This is not fact but comment. The comment is related to the passage I have already read. It begins by setting out the facts upon which the comment is made. The facts are to be found in the article in the 2nd paragraph of the 2nd column on page 10.

'A man who has done very little to help Hong Kong,' (he says about the Plaintiff) other than to make suits for tourists, who has never poked his head into politics before, is suddenly being tipped as a potential leader of Hong Kong. If democracy comes to this level, then perhaps the rule of the bullet is preferable.'

The comment has to be read against the background of the whole article and the question arises on the defence put forward (which is one of the fair comment on a matter of public interest) whether this a defence that any reasonable jury could accept. What is the matter of public interest is a question of law. There can be no doubt that who is a member of LegCo is a matter of public interest and concern. The comment made must be based upon the facts contained or referred to in the article that is the previous paragraph. There is no suggestion that those facts are untrue even if the manner of expressing them is unattractive. Could any reasonable jury in these circumstances hold that the comment based upon those facts was fair? Of course, freedom of speech is so important to our society that those who make comments on matters of public interest are given enormous latitude so that if comment is made it is held to be fair if an honest man however prejudiced, or however obstinate, or exaggerated his views might be, could have written it and if it is his honest expression of his real opinion and is published without malice.

Having considered this matter I am quite satisfied that the comments made in the particular circumstances of the whole of the article could not be held to be fair by any reasonable jury. For these reasons, in my judgment, no jury could find that the facts set out in that article support the comments made. The facts are that he does little to help Hong Kong save for making suits for tourists; he has never been involved in politics before and that he has been tipped as a potential leader of Hong Kong. I ask a question: How could those facts possibly support the comment that if democracy comes to this level then perhaps the rule of the bullet is preferable? It is worth noting that the rule of the bullet in this article refers to earlier passages. The first one being where the writer speaks of the PRC and its type of rule. I quote:

'Which is now known as the one-ounce-of-lead form of justice: Agree, or get a shot in the back of the neck.'

And further the passage which reads:

'While the gallant forces of Messrs Deng Xiaoping and Li Peng shot students who didn't move out of the way quickly enough.'

It is clearly against the background of those passages that this comment is made.

In my judgment, quite apart from the fact that no reasonable jury could find that the facts support the comment made, a reasonable Jury could not find that the comment was based on those facts. Testing the matter further, could any reasonable jury find that the comment is fairly described as criticism? The answer must also be 'No' because of the extravagant use of language and its context. The jury of course would be directed to have regard to the whole article, to the background of the comment to the manner in which the article is written and to its language. In spite of considerable difficulties in the law of fair comment in libel, I am satisfied here that no reasonable jury could possibly find for the Defendant on this point."

14. There is no dispute that the last paragraph in that part of the article to which we have referred is not a statement of fact, but is comment, and that the facts on which that comment is used are those stated in the two preceding paragraphs and that they are true.

15. Mr. Bunting submitted that by saying that the comment had to be read against the background of the whole article and that the question which arises on the defence put forward, namely one of fair comment on a matter of public interest, is whether that was a defence any reasonable jury could accept, the judge had overlooked two other questions that had to be resolved first, namely the questions (1) whether the relevant words bore the meaning alleged, and if so, (2) whether the words were defamatory of the plaintiff.

16. Mr. Mills-Owens, who appears for the plaintiff in this court, outdid not do so in the court below, submits that it is inconceivable that, having given a correct exposition of the law, the judge would have failed to apply it. Mr. Mills-Owens informed the court that leading counsel for the plaintiff below had argued that the relevant words in the article clearly meant that the plaintiff was such a vile, venal intimidator that if he was to become a member of the government of Hong Kong the result would be worse than the rule of the bullet. Mr. Mills-Owens contended that the judge's failure both to give any reasons as to why a reasonable jury would inevitably find that the relevant words were libellous of the plaintiff and to articulate what innuendo arose from the use of those words was because the matter was so plain it was unnecessary for him to do so.

17. However, no reasons having been given, we are left to consider the matter in the light of our own impression formed from a reading of the article. The words in the two paragraphs preceding the allegedly defamatory words simply allude to facts indicating the unsuitability of the plaintiff to be a member of the Legislative Council by reason of his lack of qualifications. They do not suggest that he has a reputation for violence or intimidatory tendencies. The judge did not advert to the possibility that a reasonable jury (or trial judge) might therefore understand the sting of the allegedly defamatory words to be an exaggerated assertion of the plaintiff's unsuitability to be member of the council, and not an attack on his character and reputation.

18. Bearing in mind, as Lord Denning emphasised in Herbage, that the jury (or the trial judge), is the proper tribunal to decide the question "libel or no libel", it is in our judgment impossible to say that the meaning of the relevant words is so plain that in interlocutory proceedings a judge may justifiably rule out such a possibility. In the final analysis we find ourselves unable to say that a reasonable jury would inevitably understand the relevant words to amount, not merely to an overly emphatic attack on the plaintiff's lack of qualifications to be a member of the Legislative Council, but to an attack on his character and reputation.

19. We cannot discount the possibility that a reasonable jury might conclude that the 2nd defendant was merely engaging in hyperbole in order to emphasise an honestly held belief that the plaintiff's lack of qualifications rendered him wholly unfit to hold such an office, and that accordingly, if he wre elected, it would be a very bad thing for the future of democracy in Hong Kong.

20. In arriving at this conclusion we bear in mind the principles enunciated in the following extract from the judgment of Lord Coleridge C.J. at page 2d4 of Bonnard v. Perryman, with which the other four members of the court agreed:

"But it is obvious that the subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done and unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions we entirely approve of, and desire to adopt as our own, the language of Lord Esher, M.R., in Coulson v. Coulson - 'To justify the Court in granting an interim injunction it must come to a decision upon the question of libel or no libel, before the jury have decided, whether it was a libel or not. Therefore the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where, if the jury did not so find, the Court would set aside the verdict as unreasonable.'"

21. This principle was reaffirmed by the Court of Appeal in Herbage :

"It is an old and well-established principle that an interlocutory injunction will not be granted in defamation proceedings to restrain a defendant who intends to justify his statement from repeating the publication of the alleged defamatory statement until the question whether the statement is or is not defamatory has been determined at the trial - except in cases where the statement is obviously defamatory."

22. It follows from what we have said that we do not think that the plaintiff has surmounted the extremely difficult hurdle he must clear in order to obtain interlocutory injunctive relief - a task that almost invariably is greater than that which a plaintiff in a libel action must face at the trial itself.

23. Since we have come to the conclusion that we must allow the appeal for the reasons given, and bearing in mind that the case has yet to come to trial, we do not consider it either necessary, or desirable to deal with the other matters that were raised in the grounds of appeal.

24. We allow the appeal, set aside the injunction and make an order nisi that costs of the appeal and below be to the defendants.