TANG CHUI YUK ANGELA AND ANOTHER v. HUNG KA CHUEN AND OTHERS

HCA 1424/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1424 OF 1997

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JUDGMENT ON QUANTUM

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Introduction

1. The Plaintiffs brought this action against the 4 Defendants alleging that they defamed the Plaintiffs during 2 radio programmes broadcast by D4 from the late evening of 28 January 1997 to the early morning of 29 January, 1997. D2 and D3 were the hosts of these programmes. The defamatory remarks were uttered by D1 during his interview in these programmes by D2 and D3. D1 and the Plaintiff were related in that he was the 1st Plaintiff's uncle and the 2nd Plaintiff's brother.

2. The Plaintiffs settled their claim against D4 much earlier on. Shortly before the commencement of the trial of this action, they also settled with D2 and D3. There is hence no need to discuss their claim against these Defendants further.

3. D1 was originally represented by solicitors but later chose to act in person. On the first day of the trial, D1 failed to appear. Mr Chow for the Plaintiffs informed me that D1 had been duly served with the relevant court documents and ought therefore to know of these proceedings and referred me to the relevant affirmation of service filed herein.

4. In these circumstances, I considered it appropriate to exercise my discretion to allow the Plaintiffs to proceed with the trial of this action.

5. The Plaintiffs adduced the following evidence in support of their case:-

(a) the transcript of the tape recording of the 2 radio programmes;

(b) the sworn testimony of the Plaintiffs;

(c) the tape recording of the 2 radio programmes.

Further, the relevant parts of the tape recording relied upon by the Plaintiffs were played in Court. There were also other trial bundles placed before the Court. Having taken these into account, I indicated that I was satisfied that the Plaintiffs had proven their case against D4. The "sting" of the libel against the 1st Plaintiff was that D1 falsely accused her of having an incestuous relationship with her late natural father. The "sting" of D1's libel against the 2nd Plaintiff was his false accusation that she had an adulterous relationship with her late brother-in-law.

6. The only outstanding issue is the quantum of damages payable by D4. After hearing Mr Chow's submissions, I reserved Judgment on quantum of damages. This is the Judgment on Quantum.

7. Mr Chow submitted that apart from the libel being published during the 2 radio programmes, there was extensive re-publication of D1's libel in that his false accusations were widely reported in quite a number of the local newspapers. He further submitted that the Plaintiffs were entitled to, and did, choose to sue the original publisher (that is, D1) as being liable for the original publication only but seek to recover damages from D1 in relation to both the original publication and the re-publication.

8. He said this is because the original publisher of the libel is liable for the damages of the re-publication of the libel if:-

(a)	he authorized or intended the re-publication;
(b)	the person to whom the original publication was made was under a duty to repeat the libelous statement;
(c)	the re-publication was in the circumstances of the case the natural and probable result of the original publication:

Gatley on Libel and Slander (1998) 9th Ed., para. 6.30, 6.34 and 6.35. Plaintiffs' counsel contended "natural and probable consequence" was treated as coterminous with "foreseeability": Slipper v. B.B.C. [1991] 1 Q.B. 283, 301B-D.

9. Plaintiffs' counsel submitted that the re-publication of the libel in the local newspapers was a natural and probable consequence of D1's original publication and foreseeable by him because:-

(a)	the libel contained serious and sensational allegations concerning the Plaintiffs;
(b)	the libel involved the 1st Plaintiff's late father and the 2nd Plaintiff's late brother-in-law who was a famous opera singer and actor in Hong Kong;
(c)	the Plaintiffs used to be actresses in Hong Kong;
(d)	there was extensive media coverage relating to the affairs of the family of the Plaintiffs, especially the 1st Plaintiff, during the period immediately before the libel.

10. Mr Chow invited me to take into account the following matters in assessing the amount of damages (including aggravated damages):-

(a)	the nature of D1's libel against both Plaintiffs was serious and sensational;
(b)	as a result, the Plaintiffs' reputation was seriously damaged;
(c)	the likely size of the audience of the original publication;
(d)	the extent of the re-publication;
(e)	the parties' relationship gave an impression of credence to D1's libel;
(f)	D1 acted with malice which was evidenced by:-

	(1)	his plea of justification and he did not attend court to establish such plea: Gatley, para. 32.41 (especially text to nn. 45, 47, 48 and 50), 32.50 and 9.13;
	(2)	there was no basis for him to make those allegations against the Plaintiffs: Gatley, above.

11. Counsel informed me there is an absence of recent awards of damages for defamation involving false accusations of incest or adultery. He was able to locate the following cases:-

(a)	Chan Kwong-wai v. Lo Sau-king [1963] H.K.L.R. 692. This case involved a newspaper article which alleged the plaintiff of having sex with a young girl. The trial judge considered the delay and content of the "apology" to have aggravated the matter. He also considered the plaintiff's position in the social scale to be relevant. The award was $18,000;
(b)	Lee Ting v. Wei Sau-hing [1977] D.C.L.R. 17. A married couple sued the defendant for his slander that the wife committed adultery on several occasions. They all lived in the same village. The trial judge took into account the nature of the slander, its repetition, the defendant's malice, the slander being committed within a limited area, the general attitude of the likely recipients of the slander and the diminishing effect of the slander with time. He awarded $3,000;
(c)	Lok Kwai-fu v. YC Chan [1978] H.K.L.R. 225 was a case involving libel by a magazine. An article in it falsely accused the 2 plaintiffs of having an affair. The 1st plaintiff was an actor while the 2nd plaintiff was a film actress and was married. The trial judge made the following awards:-

	(1)	$30,000 as compensatory damages for the 1st plaintiff;
	(2)	$20,000 as exemplary damages for the 1st plaintiff;
	(3)	$50,000 as compensatory damages for the 2nd plaintiff;
	(4)	$50,000 as exemplary damages for the 2nd plaintiff.

12. I do not have evidence of the annual inflation rate over the years. Adopting what I consider to be a conservative annual inflation rate of 5%, the equivalent value of the award in Chan Kwong-wai today would be about $100,000. The equivalent value of the awards in Lok Kwai-fu today for compensatory damages would be about $87,000 (for the 1st plaintiff) and $146,000 (for the 2nd plaintiff) while those for exemplary damages would be about $58,000 (for the 1st plaintiff) and $146,000 (for the 2nd plaintiff). The total award for the 1st plaintiff would be $145,000 and $292,000 for the 2nd plaintiff. Since the circumstances of the slander in Lee Ting were quite different from the present case, it is of no assistance to the assessment of damages herein.

13. Mr Chow invited me to make the same amount of award as that in Hung Yuen Chan Robert v. Hong Kong Standard [1996] 4 H.K.C. 519. The plaintiff was a practising solicitor and the honourary vice-consul in Hong Kong for Paraguay. The article alleged the plaintiff had been dismissed as the vice-consul following an investigation into an alleged passport scandal. $700,000 was awarded to the plaintiff. In a related case involving the same plaintiff and another newspaper, $900,000 was awarded to him.

14. The underlying principle for awarding damages in defamation was set out in the Hung Yuen Chan Robert case:-

"Damages

(a) General principles

The objective is 'to restore the plaintiff, as far as money can do so, to the position he would have been in if the tort had not been committed'. See Duncan and Neill, Defamation, op cit para. 18.04. Where there has been no retraction or apology, an order for damages is the only solatium available to the plaintiff.

In the recent Court of Appeal decision in Cheung Ng Sheong Steven v. Eastweek Publisher Ltd [1995] 3 HKC 601, it had to consider the question of damages for libel. It accepted (at p. 613D-F) the submission that:

... damages for libel must provide for several disparate elements, not only damage to esteem and reputation. They also 'must be sufficient to publicly and demonstratively and absolutely vindicate the plaintiff and to compensate for seriously injured feelings (Yu Kwong Chu v. Consolidated Newspapers Ltd) (A258/86, unreported) at p. 30' not only caused by the original libel but all the subsequent aggravation thereof down to the verdict, which would restore the plaintiff's 'pride and confidence' (McCarey v. Associated Newspapers Ltd (No 2) [1964] 3 All ER 947 at 958). They must enable the plaintiff to convince a bystander the baselessness of the charge if 'the libel driven underground, emerges from its lurking place at some future date' (Cassell & Co. v. Broome [1972] 1 All ER 801). ... " ( at p. 533, per Le Pichon, J) (underline supplied).

15. No satisfactory evidence was adduced regarding:-

(a) the likely size of the audience of the 2 radio programmes;

(b) the Plaintiffs having been actresses.

I have not taken these matters into account but took into account the other matters which Plaintiffs' counsel invited me to consider. Having done so, I find that an award of $400,000 for each of the 2 Plaintiffs (out of which $200,000 is aggravated damages) would be appropriate. Interest on the award should be at judgment rate from the date of Writ to the date of Judgment and thereafter also at judgment rate until payment.