LAI CHEE YING v. TA KUNG PAO (HONG KONG) LTD AND ANOTHER

HCA 1989/2020

[2024] HKCFI 2754

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1989 OF 2020

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D E C I S I O N

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1.  This is the Plaintiff’s application for a jury trial in a libel claim, which is opposed by D1. D2 is absent and the Plaintiff confirms that he will discontinue the claim against D2.

2.  The Plaintiff is the founder of the local media business known as “Apple Daily” and “Next Digital Limited” (a listed company). The Plaintiff has a high profile and is known to be outspoken. D1 is a local media business.

3.  On 25 June 2020, D1 published an article containing the following words (“the Words”) about the Plaintiff:

“亂港頭目謀「着草」 路線曝光 收費100萬” [English translation: Leaders who create chaos in Hong Kong plotting escape, escape route exposed, charge one million dollars.]

“嫌疑人逐個捉：黎智英” [English translation: All potential suspects: Lai Chee Ying.]

“黎逃避刑責「着草」之心昭然若揭” [English translation: Lai’s intention to “abscond” to evade criminal responsibility is well apparent.]

“佢即使重金畀千萬偷渡費，都無蛇頭做到佢生意” [English translation: Even if he pays 10 million as smuggling fees, no snakehead (i.e. smuggler) is able to do his business.]

4.  The Plaintiff contends that the Words meant and were understood to mean, in their natural and ordinary meaning, that: (1) the Plaintiff was planning to abscond from Hong Kong via illegal means; (2) the Plaintiff would fail to surrender to bail; and (3) the Plaintiff would breach the bail condition imposed by the Court (“Alleged Defamatory Meanings”).

5.  The Plaintiff further alleges that the Words were published and republished maliciously because, among others, the Defendant has “through many previous published articles in Ta Kung Pao on different dates conducted a “campaign of intense hostility” against the Plaintiff: SOC §9(1). In addition, the Plaintiff seeks to claim aggravated and/or exemplary damages against the Defendants on the basis that the Words were published and republished by the Defendants as “part of a smear campaign” to damage the Plaintiff’s reputation: SOC §10(1).

6.  On 26 November 2020, the Plaintiff commenced a libel action over the Words. D1’s pleaded defences are that, in gist:

(1)  The Words did not bear the Alleged Defamatory Meanings. Instead, the Words meant or were understood to mean that whilst the Plaintiff was granted bail and subject to (among others) the condition that he must not leave Hong Kong: (a) there were reasonable grounds to investigate whether the Plaintiff was at the time considering to leave Hong Kong by illegal means (“Level 1 Meaning”); or alternatively (b) there were reasonable grounds to suspect that the Plaintiff was considering to leave Hong Kong by illegal means (“Level 2 Meaning”). Insofar as the Words bore and/or were understood to bear the Level 1 and/or Level 2 Meanings, they are true in substance and in fact. In this regard, D1 will rely on a wide range of facts and matters which existed at the time of the publication of the Article (“the Justification Defence”)

(2)  D1 was protected by a Reynolds, public interest defence (i.e., “responsible journalism”) (“the Reynolds Public Interest Defence”); and

(3)  The Words were fair/honest comments (“the Honest Comments Defence”) upon a matter of public interest.

(4)  D1 denies the allegation of malice, or that the Article was published as part of a “smear campaign” or “campaign of intense hostility” against the Plaintiff.

7.  The Plaintiff claims that at the trial, the Reynolds Public Interest Defence shall be the main issue but I agree with D1 that there are more issues than that as the Plaintiff disputes each of the Defences.

8.  The Plaintiff submits that the Justification Defence and/or Honest Comment Defence cannot get off the ground. I am of the view that those 2 defences cannot be summarily dismissed on the evidence before this Court. The question of whether to order a jury trial shall proceed on the basis that the parties are in dispute on all fronts.

Legal principles

9.  First, the starting point is s. 33A(1) of the High Court Ordinance (Cap 4) (“HCO”), which mandates that an action in respect of libel shall be tried with a jury, unless the Court is 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.

10.  Second, the right to a jury trial is not absolute and the matter falls within the Court’s discretion. The “modern trend” is against having a jury in defamation cases, especially since introduction of the Civil Justice Reform in Hong Kong. See e.g. Martnok Thanradee v Commissioner of Police, HCA 789/2011, §§17-31, 61-64 and 68, wherein DHCJ Marlene Ng (as she then was) observed that “the sands of time are running out for jury trial in civil matters”.

11.  Mr Lam and Ms Wong (counsel for the Plaintiff) submit that a “modern trend” against jury trial does not actually tell us anything. Judicial decisions should be based on a dispassionate application of the objective contents of the law to the specific facts before the Court. They should not be based on nothing more than a “trend”, whatever that “trend” is. In Ho Kwan Yiu itself, despite the recognition of the existence of a “trend” against jury trial (§6), the Court ordered a jury trial on the facts.

12.  To the extent Mr Lam and Ms Wong are saying that a legal principle should not be blindly applied but with proper consideration of the factual circumstances, I agree with that. However, the modern trend does have a meaning. It is reference to “a gradual development of practice of only rarely exercising the discretion to order jury trials”: International Social Service (Hong Kong Branch) v Vision First Ltd [2017] 2 HKLRD 310 §§18-21, §18(1), Chung J.

13.  S.33A HCO still stands, in contrast to the Defamation Act 2013 which removed the presumption in favour of jury trials. However, the authorities cited in the present Decision have effectively adopted UK’s reasoning on why jury trials should be discretionary rather than mandatory, ie jury trials would add to the complexity of a case, impede settlement and add significantly to costs and time. See Post-Legislative Memorandum: The Defamation Act 2013 (published by the UK Ministry of Justice in October 2019), §15; and the Consultation Paper for the Draft Defamation Bill (March 2011), §§ 93-100.

14.  On the other hand, the Australian article of Steven Rares entitled “The jury in defamation trials” (2010) 33 Australian Bar Review 93 cited by Mr Lam suggests that jury trials are generally shorter and more efficient than judge alone trials. That article, without disrespect, did not refer to the recent trend against jury trials. Trial dates are precious. Order 35, rule 3A of the Rules of the High Court empowers the trial judge in case management to control the time for taking of evidence and speeches. PD36 also governs the handing down of judgments. A jury trial is not necessarily shorter and more efficient than trial by a judge these days.

15.  Third, in exercising its discretion, the Court takes into consideration a number of factors, including those militating against jury trial and those favouring jury trial. See the factors listed out in Ho Kwan Yiu (above) §6(1) to (3).

16.  Factors militating against jury trial include:

(1)  Efficient administration of justice, including:

(a)  Prolonged examination of documents (which includes written directions on points of law prepared by the judge).

(b)  Inconvenience (which includes requiring the jury to return an “exam paper” type of special verdicts), physical bulk of trial documents, the need for detailed and minute examination of documents, cross-references to different documents, examination in chief has to be verbal;

(c)  Additional length of trial and the closely related additional costs of jury trial.

(d)  Trials involving areas of law which have possible room for development (e.g. the Reynolds public interest defence).

(2)  The ability of a single judge to ask questions as and when needed and to read documents before trial and after trial hours (and the jury’s inability to do so).

(3)  The risk of excessive jury awards constituting an interference with freedom of speech.

(4)  The availability of a reasoned judgment from a single judge, as opposed to absence of reasons from a jury.

17.  Factors favouring jury trial include:

(1)  Prominent figures in public life;

(2)  Questions of national interest;

(3)  Actions involving issues of credibility and a party’s honour and integrity under attack;

(4)  The wish of one or more of the parties to have a trial with a jury.

However, factors in paragraph 17 above have by now been given lesser weight, and should not be elevated to too high a level.

18.  Fourth, the Reynolds Public Interest Defence is “peculiarly unsuited” to have a jury trial. See: (1) Ho Kwan Yiu §§7 & 8; and (2) Pui Kwan Kay §§89-92). However, in Ho Kwan Yiu, a jury trial was ordered dispute a Reynolds plea only because the parties (all represented) consented to a jury trial, the question of law was distinct and separable from the rest of the action, the documents were manageable and could be read casually and there was little risk of the jury being confused as to the role of judge and jury.

19.  Fifth, whether the proviso in s.33A(1) of HCO does or does not apply in any particular case depends on the unique circumstances of that case. The Court should consider whether the issues in dispute will fall to be determined on a broad picture, as opposed to on small details: Ho Kwan Yiu §§9-10.

Application of the legal principles

20.  The parties need no introduction. Even the defence admits that the Plaintiff is a well-known public figure. D1 operates a well-known newspaper, Ta Kung Pao, with wide circulation in Hong Kong. There is great public interest in this case as the Article was published after the 2019 social events, amidst the intended promulgation of national security laws and when the Plaintiff was facing criminal charges.

21.  However, these factors are afforded less weight now. Even in cases involving public interest, politicians, or politically sensitive issues, the Court does not necessarily exercise its discretion to order a jury trial: eg Leung Chun Ying v Chung Kim Wah [2023]1 HKLRD 561; Lam Cheuk Ting v Ho Kwan Yiu [2023] HKCFI 454.

22.  Having considered the submissions, I am not satisfied that a jury trial should be ordered for the following reasons.

23.  Firstly, there is a whole host of “exam questions” that the jury will have to answer, having regard to the issues disclosed on the pleadings.

24.  Secondly, this case clearly involves prolonged examination of documents, which is not suitable for a jury. The word “examination” in this context has a wide connotation, and is not limited to the documents which contain the actual evidence in the case but also the documents likely to be introduced in cross-examination: Gregson v Channel Four Television Corporation [2002] EWCA Civ 941 §7.

25.  The total number of pages disclosed on both sides amounted to 1,213 pages. That is not conclusive. What is important is that the Plaintiff will make full submissions regarding 101 articles published by D1 to establish D1’s “longstanding malicious intent”, “a campaign of intense hostility” and a “smear campaign”.

26.  D1, on the other hand, seeks to rely on 227 documents, comprising (i) rulings and reasons for sentence, (ii) over 150 pages of English news articles or commentaries; (iii) Government press releases in English, and annual returns of various companies affiliated with the Plaintiff. These documents are relevant to the Justification Defence, Reynolds Public Interest Defence and the Plaintiff’s alleged “campaigns” and malice.

27.  Documents on both sides are diverse in nature and may have to be scrutinized individually or examined alongside one another. The Plaintiff’s estimation of 5 days for trial by jury is optimistic in the circumstances of this case.

28.  Thirdly, trial by a judge can permit witness statements to stand as evidence-in-chief, but a jury trial involves witnesses giving oral evidence in-chief.

29.  The parties may agree to the existence of the 101 articles to show that D1 had published those articles in the past. However, to go through them with the jury for the Plaintiff to establish their falsity, meaning, effect, and why any opinion or comment expressed therein are unwarranted would be inevitable. Importantly, the Plaintiff has to demonstrate to the jury how the articles could have the effect of a “campaign”, ie an organized course of activities to achieve a particular aim. In contrast, a judge may read the documents beforehand instead of in the Court room and rely on counsel’s submission to draw inferences.

30.  The judge can also read written submissions beforehand so as to reduce the time for speeches.

31.  I fail to see how it can be said that trial by a jury will be shorter than by a judge in this case.

32.  Fourthly, this case involves the Reynolds Public Interest Defence. A jury is not suitable given the complexity of the defence involving mixed law and facts. The Plaintiff is disputing every aspect of this defence, not just the aspect of malice. Just on this defence alone, the jury will have to answer an “exam paper” of, eg:

(1)  Whether the Words were based on information obtained from informants;

(2)  Whether D1 has ascertained or assessed the reliability of its sources;

(3)  Whether there was reason to doubt the veracity of the information obtained by D1 as a result of its investigation;

(4)  Whether there was urgency in publishing the Article;

(5)  Whether approaching the Plaintiff for comment would give rise to a real risk of tipping him off;

(6)  Whether it would serve any useful purpose in approaching the Plaintiff for comment before publishing the Article; and

(7)  Whether D1 knew or ought to have known that the Words were false.

33.  The Court of Appeal’s observations in Pui Kwan Kay, §§86-93 are apt. The Plaintiff has not put forth any convincing reason to disapply the dicta. He has not denied that Reynolds Public Interest is complex.

34.  In §57 of his submission in reply, Mr Lam submits that under s.33A(4), the trial judge in a jury trial can order different questions of fact to be tried by different modes. That means the trial judge can decide what factual questions should be left to the jury and what to himself. The Plaintiff himself would be content with asking the jury to return a single special verdict on “whether D2’s publication of the Words was malicious, in the sense of D1 misusing or abusing the occasion with the dominant motive of damaging the Plaintiff’s reputation”; the rest could be left to the trial judge.

35.  If the Plaintiff’s suggestion is adopted, the trial judge would probably have to decide the question of justification first (under pressure of time to write up a judgment). Upon finding justification not established, then he would allow questions concerning malice to be put to the jury. After that, he would have to dispose of the rest of the issues by a written judgment. This, in my view, may cause a trial to be split into different sessions and put the trial judge under unnecessary pressure of time. It is a most undesirable and inefficient mode of trial.

36.  For the reasons given, this case requires prolonged examination of documents, is not suitable for jury trial and plainly not suitable for putting only one or some questions to the jury, leaving the rest to the trial judge. I therefore dismiss the Plaintiff’s summons.

37.  On a nisi basis, costs of D1 should be borne by the Plaintiff. Whilst the Court is grateful for the assistance of senior counsel, and acknowledges that the summons is important to both parties, an application like this does not warrant the engagement of senior counsel. The costs claimed are over $900,000, which are staggering and plainly wild for a procedural application like this. I therefore order costs with certificate for junior counsel to D1, summarily assessed in the sum of $300,000.

38.  I thank counsel for their assistance.