NEXT MAGAZINE PUBLISHING LIMITED AND OTHERS v. ORIENTAL DAILY PUBLISHER LIMITED

FACV No. 19 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 19 OF 1999 (CIVIL)

(ON APPEAL FROM CACV NO. 261 OF 1998)

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Between:

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J U D G M E N T

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Chief Justice Li:

1. I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Litton PJ:

2. I agree with Mr Justice Bokhary PJ's judgment.

Mr Justice Bokhary PJ:

Introduction

3. A libel action was brought by the publisher of a Chinese language daily newspaper against the publisher, editor and printer of a Chinese language weekly magazine, complaining that it had been libelled in that magazine. The newspaper is "the Oriental Daily News". And the magazine is "the Next Magazine".

4. The action was tried in the High Court by Deputy Judge Chung (now Chung J) without a jury. On 15 September 1998 he dismissed the action. But on 29 March 1999 the Court of Appeal (Liu and Leong JJA and Pang J) allowed the newspaper publisher's appeal to the extent of ordering a new trial.

5. Now the magazine publisher, editor and printer are the appellants before this Court, the Appeal Committee having granted them leave to appeal to this Court after the Court of Appeal had refused such leave. Although they are the appellants before this Court, it is conducive to clarity still to refer to them as "the defendants". It is similarly conducive to clarity still to refer to the newspaper publisher as "the plaintiff" even though it is now the respondent before this Court. The defendants ask us to restore the judge's order dismissing the action. The plaintiff, on the other hand, asks us to affirm the Court of Appeal's order for a new trial.

6. In asking us to reverse the Court of Appeal's decision and restore that of the judge, the defendants submit first that the Court of Appeal went wrong in law as to the correct approach for a judge to adopt when trying a libel action without a jury. Moreover, the defendants submit, the Court of Appeal went wrong on the facts in thinking that the judge had left a certain issue unresolved when, in truth, that issue was subsumed by his findings of fact. The plaintiff, on the other hand, submits that the Court of Appeal did not err either in law or on the facts.

7. With that introduction, I turn to the background facts.

Background

8. At the Olympic Games in Atlanta in the summer of 1996, Miss Lee Lai Shan - popularly known as "San San" - won a gold medal. It was the first Olympic gold medal ever won by a Hong Kong athlete. Naturally, therefore, Miss Lee's achievement was a source of much celebration in Hong Kong. Many commercial organizations bestowed gifts on her.

9. On 1 August 1996 Mr Cheng Ka Fu, a Legislative Councillor, spoke at a meeting of the Legislative Council's Panel on Recreation and Culture. He lamented what he saw as a regrettable lack of any Government award scheme for athletes. In the course of so doing, he used the term "不健康" i.e. "unhealthy" in respect of the bestowing of gifts on Miss Lee by commercial organizations.

10. During the five-day period from 4 to 9 August 1996 there appeared in "the Oriental Daily News" 12 articles criticising Mr Cheng for voicing that opinion.

11. On 9 August 1996 there appeared in "the Next Magazine" an article criticising the criticism in "the Oriental Daily News" of Mr Cheng.

This magazine article is the one sued upon by the plaintiff as a libel on it.

Defamatory

12. The judge found that the article sued upon was defamatory of the plaintiff. He so found on a basis which comes essentially to this. The article sued upon amounted to an accusation that the plaintiff had deliberately quoted Mr Cheng's use of the term "unhealthy" out of context in order to create a basis for criticising him so as to get revenge against him for his having criticised "the Oriental Daily News" in the past.

Action dismissed by the judge

13. Finding such accusation to be true, the judge dismissed the action on the ground that the defendants' defence of justification succeeded. The judge also said that if it had been necessary he would have dismissed the action on the ground that the defendants' alternative defence of fair comment succeeded.

14. Shortly stated, the judge's findings on justification were as follows. Mr Cheng did not say that the mere fact that Miss Lee had received gifts was "unhealthy". What he had characterised as "unhealthy" was that such a matter was left to commercial organizations in the absence of any Government award scheme for athletes. His point was that there ought to be such a scheme. But despite correctly so understanding Mr Cheng, the plaintiff quoted his use of the term "unhealthy" out of context so that it could criticize him as if he had simply said that it was "unhealthy" for Miss Lee to receive gifts. And it did so deliberately in order to get revenge against him for his having criticised "the Oriental Daily News" in the past.

Four grounds of appeal raised by the plaintiff before the Court of Appeal

15. The plaintiff appealed to the Court of Appeal, seeking a new trial. Initially its notice of appeal in that appeal contained three grounds of appeal.

16. In the first ground, it was contended that the judge was wrong in refusing to find that the article sued upon accused the plaintiff of "framing" Mr Cheng. The other two grounds are dependent on the first one. Thus the second ground is that the judge's refusal to find an accusation of framing led to his misdirecting himself on what had to be justified. And the third ground is that such refusal also vitiated his view that fair comment would have succeeded if necessary.

17. At the hearing of its appeal to the Court of Appeal, the plaintiff applied for leave to add the following as a fourth ground of appeal:

"Alternatively, the learned judge erred in law when he failed to appreciate that the article in its entirety, without focusing on any particular word used, nonetheless contained imputations that the Plaintiff falsely reported the comments of Mr Cheng and/or deliberately twisted the words of Mr Cheng in order to attack him."

18. The defendants immediately sought particulars of "falsely reported" and "deliberately twisted". Such particulars were then supplied. The particulars supplied of "falsely reported" were that:

"The Plaintiff was accused of having falsely reported the words of Mr Cheng, i.e., Mr Cheng did not utter certain words but the Plaintiff reported him as having uttered those words. The Article gave that impression."

And the particulars supplied of "deliberately twisted" were that:

"The Plaintiff was accused of having deliberately twisted Mr Cheng's words, i.e., the Plaintiff knew that Mr Cheng did not utter those words with a certain meaning but deliberately ascribed such a meaning to his words. The Article gave that impression."

"Framing"

19. The Court of Appeal ordered a new trial on the fourth ground, and did not deal with the first three grounds. Leading counsel for the plaintiff submitted that if we felt unable to support the Court of Appeal's order for a new trial on the basis on which it made that order, then we ought to remit this case to the Court of Appeal for it to deal with the first three grounds. But he nevertheless addressed us on those three grounds in case we decide to deal with them ourselves.

20. It would not be right to remit this case to the Court of Appeal. There is no merit in the first three grounds. They would be without foundation unless there was some flaw in the process of reasoning in the course of which the judge rejected an accusation of framing as the defamatory meaning of the article sued upon. Having studied his judgment with care, I detect no such flaw.

False reporting

21. All that is left is the ground on which the Court of Appeal proceeded when ordering a new trial, namely the fourth ground quoted above.

22. In ordering a new trial, Liu JA (with whose judgment Leong JA and Pang J agreed) said this:

"If, as I have held, the 'False Reporting' complaint is potentially arguable, the judge should have proceeded to decide whether the Article was reasonably capable of, among other meanings, such a meaning defamatory of the plaintiff and, if the answer be positive, whether as a matter of fact the meaning the Article actually bore was so libellous as alleged. In my view, the 'Falsely Reporting' complaint as pleaded potentially calls for an exercise of the judge's dual functions, both as judge and jury. The judge considered exclusively one 'sting'. Within or without the 'Deliberately Twisting' complaint, the 'Falsely Reporting' complaint is arguably discrete. It was part of the pleaded case of the plaintiff, and the judge failed to deal with the 'Falsely Reporting' issue."

It is essentially on that passage in Liu JA's judgment that the defendants base their submission, which I mentioned earlier, that the Court of Appeal went wrong both in law and on the facts.

The correct approach for a judge to adopt when trying a libel action without a jury

23. It is not uncommon in Hong Kong for judges to try libel actions without a jury. The correct approach for judges to adopt when so doing is the one explained as follows by Diplock LJ in Slim v. Daily Telegraph Ltd [1968] 2 QB 157 at pp 174G-175C:

" But where an action for libel is tried by a judge alone without a jury, it is he who has to arrive at a single 'right' meaning as 'the natural and ordinary meaning' of the words complained of; and with the concentration of functions in a single adjudicator, the need for his distinguishing between meanings which words are capable of bearing and the choice of the one 'right' meaning which they do bear disappears. It would be carrying artificiality too far, even for the law of libel, to suggest that a judge sitting alone must approach the issue as to the natural and ordinary meaning of the words complained of by asking himself not only the question: 'What is the natural and ordinary meaning in which the words would be understood by reasonable men to whom they were published?' but also the further question: 'Could reasonable men understand them as bearing that meaning?' "

There are statements in the passage in Liu JA's judgment quoted above which are at variance with this approach. But this appeal does not fall to be determined on the basis of such variance alone.

Did the judge really leave the "falsely reported" issue unresolved?

24. I have already noted that the defendants submit that the Court of Appeal, apart from going wrong in law, also went wrong on the facts in thinking that the judge had left a certain issue unresolved when, in truth, that issue was subsumed by his findings of fact. And I will now deal with that submission on the facts.

25. The issue in question is the "falsely reported" issue. Did the judge really leave it unresolved?

26. What the adjudicator of fact, whether a judge alone or a jury, has to ascertain in a libel action is the single meaning which the publication sued upon would convey to the mind of an ordinary, reasonable, fair-minded reader. Thus in Charleston v. News Group Newspapers Ltd [1995] 2 AC 65 at p.71 E-H Lord Bridge of Harwich (in a speech with which all the other Law Lords hearing that appeal agreed) referred to "two principles which are basic to the law of libel" and then continued as follows:

"The first is that, where no legal innuendo is alleged to arise from extrinsic circumstances known to some readers, the 'natural and ordinary meaning' to be ascribed to the words of an allegedly defamatory publication is the meaning, including any inferential meaning, which the words would convey to the mind of the ordinary, reasonable, fair-minded reader. This proposition is too well established to require citation of authority. The second principle, which is perhaps a corollary of the first, is that, although a combination of words may in fact convey different meanings to the minds of different readers, the jury in a libel action, applying the criterion which the first principle dictates, is required to determine the single meaning which the publication conveyed to the notional reasonable reader and to base its verdict and any award of damages on the assumption that this was the one sense in which all readers would have understood it."

That statement of the law, although made in the context of libel actions tried by judge and jury, applies with at least equal force to libel actions tried by judge alone.

27. The judge set out all the defamatory meanings pleaded by the plaintiff, including the one that it had "falsely reported the comments of Mr Cheng Ka Fu on the provision of gifts by commercial organizations to Miss Lee Lai Shan". He noted that alleged defamatory meaning along with all the other ones pleaded by the plaintiff. It was only after so doing that he made his finding as to the single defamatory meaning which the article sued upon would convey to the mind of an ordinary, reasonable, fair-minded reader. Such meaning so found by the judge was that the plaintiff had deliberately quoted Mr Cheng's use of the term "unhealthy" out of context in order to create a basis for criticising him so as to get revenge against him for his having criticised "the Oriental Daily News" in the past. Far from leaving the "falsely reported" issue unresolved, therefore, the judge obviously resolved it by rejecting the "falsely reported" meaning in favour of the "deliberately quoted out of context" meaning which he found.

Alternative submission

28. In the alternative to the foregoing, leading counsel for the defendants submits that the judge's decision to dismiss the claim ought to stand even if he had indeed failed to apply his mind to the question of false reporting. This is because, the alternative submission continues, there is simply nothing in the article sued upon which is capable of meaning that the plaintiff had reported Mr Cheng's remarks in such a way as to suggest that he had uttered words which he had not in fact uttered.

29. While I happen to agree with that alternative submission, the defendants do not need to rely on it since they succeed on their primary submission that the judge has resolved the "falsely reported" issue.

Conclusion

30. In the result, there was no sound basis for ordering a new trial. As to costs, the parties accepted at the hearing before us that the costs here and below, including the costs of the applications before the Court of Appeal and the Appeal Committee for leave to appeal to this Court, should follow the event of this appeal. Accordingly, I would allow this appeal so as to (i) restore the judge's decision dismissing the action and (ii) award the defendants costs here and below, including the costs of the leave applications, against the plaintiff.

Mr Justice Silke NPJ:

31. I agree and there is nothing I can usefully add.

Sir Anthony Mason NPJ:

32. I agree with Mr Justice Bokhary PJ's judgment.

Chief Justice Li:

33. The Court unanimously allows this appeal so as to (i) restore the judge's decision dismissing the action and (ii) award the defendants costs here and below, including the costs of the leave applications, against the plaintiff.