NEXT MAGAZINE PUBLISHING LTD AND ANOTHER v. MA CHING FAT

FACV No. 5 of 2002

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 5 OF 2002 (CIVIL)

(ON APPEAL FROM CACV NO. 371 OF 2000)

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J U D G M E N T

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Mr Justice Bokhary PJ:

1. I so fully agree with Lord Cooke of Thorndon NPJ's judgment that, even though the view which he and I share is a minority one, I propose to say no more than that I agree with his judgment.

Mr Justice Chan PJ:

2. I agree with the judgment of Mr Justice Litton, NPJ. For the reasons given by him, I too would allow the appeal and make the orders as he has proposed.

The verdicts

3. The trial judge in his summing-up (at p.3S) directed the jury on the question of liability as follows:

"... Now, there are three matters relevant to the question of liability: (1) whether the article is defamatory; (2) if you find the article to be defamatory, whether the defence of fair comment is established; (3) if you find the defence established, whether the dominant motive for making the comments was malice."

4. If that was the sequence by which the jury dealt with these issues, and there is no suggestion that they had done it in any other way, then, the only reasonable inference which one can draw from their verdicts is this. First, they must have found that the article was defamatory. If it were otherwise, the verdicts would have been in favour of all the defendants. None of them would have been held liable for defamation at all. Secondly, the jury must also have found that the defence of fair comment, which was the only defence raised on behalf of all the defendants, had succeeded. If it were otherwise, there would be no reasonable basis for acquitting the 3rd defendant. Thirdly, the jury must then have found that as far as the 1st and 2nd defendants are concerned, the defence of fair comment was defeated by proof of "malice" according to the law prior to Cheng v. Tse (2002) 3 HKCFAR 339. If it were otherwise, the 1st and 2nd defendants would not have been held liable.

Defamatory meaning

5. The article was not a long article. The first paragraph was purely factual. It is not disputed that its contents were substantially true with some inaccuracies which are not regarded as material. The second paragraph was shorter. Since the jury were satisfied that it was fair comment (although it was defeated by proof of malice in the case of the 1st and 2nd defendants), they must have found that this paragraph consisted of comments.

6. Three meanings were pleaded by the plaintiffs in paragraph 6(a) to (c) of the re-re-re-amended statement of claim as defamatory meanings of which the article was capable of bearing: (a) the 2nd plaintiff had abused his position as a director and officer of the 1st plaintiff in using relevant insider information obtained in his privileged capacity; (b) the 2nd plaintiff in selling his 42 million shares in the 1st plaintiff was in breach of his fiduciary duty as a director and officer of the company and in using the relevant insider information obtained in his privileged capacity, was in breach of his statutory duty under s.13 of the Securities (Insider Dealing) Ordinance, Cap. 395; and (c) the 2nd plaintiff was guilty of insider dealing within the meaning of s.9 of the Securities (Insider Dealing) Ordinance.

7. The second paragraph was not stating as a fact that the 2nd plaintiff had abused his position, was in breach of fiduciary duty or was guilty of insider dealing. It was only making a comment. What was it suggesting or implying?

8. The article was written in Chinese. The jury were bilingual. So were both counsel and the judge. Although there was an English translation of the article and the trial was conducted in English, the jury, counsel and the judge all had the advantage of reading the original article in Chinese. Taking the natural and ordinary meaning of the article, that is, the meaning which would appear in the mind of an ordinary reasonable fair minded reader, by reading the article in its original text, the article did not go as far as suggesting that the 2nd plaintiff was guilty of insider dealing, that is, the meaning as pleaded in paragraph 6(c) which was probably regarded as the worst of the defamatory meanings pleaded and relied on by the 2nd plaintiff. The article, particularly the second paragraph, might suggest that because of the position of the 2nd plaintiff and the way in which he disposed of all his shares, he might have some peculiar personal reasons for doing what he did, or there was something suspicious in what he did, or there was something which had happened behind the scene and which the public did not know about. On the basis of the facts (albeit not completely accurate facts) contained in the article, it would not be unreasonable to make such a suggestion. The only thing which might possibly be thought to give rise to any suggestion of insider dealing was the 4 Chinese characters which were somehow translated as "insider". Although the first two characters are the same as the first two characters used for "insider dealing", the whole of the second paragraph taken in the context, while it could be regarded as defamatory, did not allege or suggest insider dealing. It suggested there might be something mysterious, something which called for an explanation, something which might have to be looked into. It went no further. On the other hand, as the trial judge directed the jury (at p.6E -7K), insider dealing has a special meaning under the provisions of the Securities (Insider Dealing) Ordinance.

9. Even assuming that the article was capable of having such defamatory meaning, the jury found that it was fair comment.

Proof of malice

10. The next question is whether the defence of fair comment was defeated by proof of "malice" or lack of honest belief on the part of the 1st and 2nd defendants. By the time the jury had to consider "malice", they would have found the article to be defamatory and that the defence of fair comment had been established. This is clearly the way the trial judge directed the jury. He said at p.11N:

"Now, I move on now to the question of malice. Now, by the time you need to consider this aspect, it would mean that you have already found the defamatory statements were comments and that they were fair because otherwise, the defence of fair comment already failed. Now, the burden of proving malice is on the 2nd plaintiff."

11. A number of particulars of malice were pleaded and relied on by the 2nd plaintiff. It is not necessary to repeat them. Suffice it to say that the effect of these allegations amounts to this. First, the associated companies of the 1st and 2nd defendants and the associated companies of the 1st plaintiff (of which the 2nd plaintiff was a director) were keen competitors and rivals. This is probably common knowledge. There is nothing sinister in being business competitors or even rivals in itself. At best, this might be a possible basis for an improper motive, but nothing more. Secondly, at the time this article was written, the 1st plaintiff, one of its associated companies and the chairman of the group (not the 2nd plaintiff but his brother) had commenced two defamation actions against the 1st and the 2nd defendants and its associated companies. The details of these two actions were not known to the court since the parties were content in telling the jury only the existence of these two actions. There was the allegation that the defendants were engaged in a campaign to harm the reputation of the plaintiffs' companies. Two schedules setting out other actions between the two groups were presented to the court. Again, no detail was given in respect of these actions. It is difficult to see how the jury could make anything out of these schedules. Thirdly, the editorial management of three publications of the associated companies of the 1st defendant held monthly joint meetings. Short of an express allegation of conspiracy with supporting evidence, this is hardly relevant to the issue of malice.

12. No oral evidence was called and no other relevant materials were adduced before the court to support the 2nd plaintiff's case that the article was actuated by malice. It was sought to show by these allegations and materials that there was spite, ill-will or improper motive on the part of the 1st and 2nd defendants in publishing this article. I agree with Mr Justice Litton NPJ that the trial judge should have withdrawn the issue of malice from the jury. The materials before them were clearly not sufficient to satisfy the test for putting that issue before the jury, that is, whether a reasonable jury could, with proper directions, find malice on the part of the 1st and 2nd defendants. The materials placed before the court could not show on the balance of probability that there was spite, ill-will or improper motive on the part of the defendants in publishing the article.

Proof of lack of honest belief

13. It is said that the parties had not focused their minds on the correct issue - lack of honest belief on the part of the 1st and 2nd defendants in what they had written. After Cheng v. Tse, it is not sufficient to prove malice in the sense of spite, ill-will or improper motive. It is necessary for the 2nd plaintiff to show that the defendants did not hold an honest or genuine belief in what was written. Counsel submits that the 2nd plaintiff must be given an opportunity to do this at the re-trial.

14. It can be noted that the 2nd plaintiff had alleged in his re-re-re-amended reply that the 1st and 2nd defendants did not hold any honest belief in what was written. It is said that there might be other evidence forthcoming to support this allegation. However, counsel was unable to indicate what the 2nd plaintiff would be able to adduce in proving dishonesty at the re-trial.

15. In my view, the 2nd plaintiff had pleaded lack of honest belief on the part of the 1st and 2nd defendants. That was part of his case in trying to defeat the defence of fair comment. Proof of dishonesty would be strong evidence of malice under the pre Cheng v. Tse law. He was well aware of the relevance of such issue. It was an issue which was clearly placed before the court and the jury. There was however no evidence adduced in support of this allegation. It does not lie in the mouth of the 2nd plaintiff that because the "old law" required proof of spite, ill-will or improper motive, it was not necessary for him at the first trial to show dishonesty.

16. Can it be said that the article itself contained such a serious imputation or meaning (even assuming the worst meaning it could bear, that is, the 2nd plaintiff was guilty of insider dealing) that no reasonable person could have held an honest belief in what was written? In my view, the answer must be in the negative. If, as the jury had found, that the article was a fair comment, it would necessarily mean that they must have been satisfied that the comment had passed the objective test, that is, it was a comment which could have been made by a reasonable and honest person, however prejudiced he might be and however exaggerated or obstinate his views might be. That being the case, it cannot be said that the article contained such a serious imputation that it is impossible for the 1st and 2nd defendants to have honestly held such belief because no reasonable person would have honestly held such belief. In any event, this is an argument which was never pleaded by the 2nd plaintiff. It was also not the case of counsel before this Court.

Fair comment as safeguard

17. Fair comment is a very important safeguard for the freedom of expression. It involves the right to make fair and honest comments on matters which concern the public and to discuss these matters fairly, freely and openly without fear of liability. Li CJ in Cheng v. Tse said at p.345:

"The freedom of speech (or the freedom of expression) is a freedom that is essential to Hong Kong's civil society. It is constitutionally guaranteed by the Basic Law (art. 27). The right of fair comment is a most important element in the freedom of speech.

The courts should adopt a generous approach so that the right of fair comment on matters of public interest is maintained in its full vigour."

Lord Nicholls of Birkenhead NPJ also remarked at p.352C:

"The purpose for which the defence of fair comment exists is to facilitate freedom of expression by commenting on matters of public interest. This accords with the constitutional guarantee of freedom of expression. And it is in the public interest that everyone should be free to express his own, honestly held views on such matters, subject always to the safeguards provided by the objective limits mentioned above. These safeguards ensure that defamatory comments can be seen for what they are, namely, comments as distinct from statements of fact. They also ensure that those reading the comments have the material enabling them to make up their own minds on whether they agree or disagree."

18. As fair comment is such an important safeguard for the freedom of expression, it cannot be the case that a mere allegation, without sufficient materials or evidence to substantiate it, can be allowed to defeat such defence. If it were otherwise, this would frustrate the freedom of expression.

Conclusion

19. I take the view that there is no and unlikely to be any sufficient evidence to show either malice under the pre Cheng v. Tse law or lack of honest belief on the part of the 1st and 2nd defendants.

Mr Justice Litton NPJ:

Introduction

20. This is a defamation suit. It concerns an article published in a weekly magazine nearly 7? years ago. It was a short article regarding the activities of Mr Ma Ching Fat (Mr Ma) in May 1995, published in the 1st June 1995 issue of Next Magazine. Mr Ma was then a director of Oriental Press Group Ltd, a publicly listed company ("OPG"). The article was hemmed in between two much longer ones which concerned two extremely prominent members of the Hong Kong community : Their photographs occupied much of the page in which the article, now still subject of litigation, appeared : There was no photograph of Mr Ma. It would have taken the ordinary reader no more than a minute to skim through the article before going on to other matters in the magazine. Since the publication of the article complained of, hundreds of other issues of the same magazine have been published, distributed, read and thrown away. Any impression formed by the readers of the article concerning Mr Ma would by now have long since dissipated. And yet, the matter which occupied much of the attention of this Court was whether there should be a re-trial of the defamation suit brought by him, as the Court of Appeal, by its judgment of 27 June 2001, had ordered : This is, in fact, an over-simplification, for the Court of Appeal did not order a re-trial as such : It ordered a "re-trial of the action between [Mr Ma] and [the defendants] only on the issues of fair comment and damages". But therein lies another tale. If a re-trial should be ordered, and the progress of the present litigation is any guide, it will be many more years before this matter is finally laid to rest. Such is the sophistication of our system of law.

21. A word first about the parties. Mr Ma was, as earlier mentioned, a director and also vice-chairman of OPG, a group of companies which published the widely-circulated Oriental Daily News and a number of popular magazines. The 1st defendant, Next Magazine Publishing Ltd, was the publisher of Next Magazine in which the offending article appeared, the 2nd defendant was its editor and the 3rd defendant the printer. The 1st defendant, in turn, was part of a group of companies which published the Apple Daily a popular daily newspaper and a number of magazines. The two groups, through their respective publications, vied for the same readership and were hence keen competitors in business.

The offending article

22. The offending article, in translation, reads :

"Publisher Ma sold all (his) stock of <Oriental>

<Oriental Daily> publisher Ma Ching Fat (younger brother of chairman Ching Kwan) originally held 42,000,000 shares in Oriental Press Group Limited; but in the early part of this month, publisher Ma on three occasions sold all of such shares, not leaving one unsold. Although the price in this bag sale exercise went lower and lower, the sale nevertheless realized $143,000,000.00 for publisher Ma, who pocketed the proceeds.

Publisher Ma is after all in an insider of Oriental. His sale of Oriental shares had been so fierce. What is the mystery behind this? It gives one much food for thought."

History of the litigation

23. In November 1995 Mr Ma instituted proceedings for libel. His statement of claim, after several amendments, averred in essence as follows : That the article meant that Mr Ma, being a director of a publicly listed company, had in selling his shareholding abused his position, had used relevant information to gain a personal advantage and was guilty of insider trading contrary to the Securities (Insider Dealing) Ordinance; by reason of its publication, Mr Ma had been greatly injured in his character and personal reputation and in his reputation as a director and officer of OPG.

24. In support of Mr Ma's claim for aggravated damages the statement of claim, in para. 9, pleaded :

(a) That Next Magazine was a keen rival of Eastweek (published by a subsidiary of OPG) and that, prior to the publication of the offending piece, articles had repeatedly appeared in issues of Next Magazine in which OPG, its directors and officers, and also its publications Eastweek and Eastern Express had been made the subject of unfavourable comments and adverse criticism.

(b) Easyfinder (another weekly magazine published by an affiliated company of the 1st defendant) was a keen rival of East Touch another magazine published by the OPG group. Prior to the publication of the offending piece, articles had appeared in Easyfinder in which OPG its directors and officers had been made the subject of unfavourable comments and adverse criticism.

(c) Prior to the publication of the offending piece, the defendants were defendants in actions for libel instituted by OPG and Mr Ma's brother : These were HCA 12525/94 and HCA 3818/95 : Mr Ma himself was not involved.

(d) The court was asked to infer that the three defendants published the words knowing they were libellous or with reckless disregard as to whether they were libellous or not and having established that "the prospect of material advantage by reason of their publication outweighed the prospect of material loss". The court was further asked to infer that the words were published with a view to injuring OPG and Mr Ma, to adversely affect Eastweek's circulation and to boost that of Next Magazine.

25. The defendants in their Defence pleaded, in effect, that the facts set out in the article were in substance true and that the words "Publisher Ma is after all an insider of Oriental. His sale of Oriental shares had been so fierce. What is the mystery behind this? It gives one much food for thought" were fair comment upon a matter of public interest, namely Mr Ma's conduct as director and vice-chairman of a publicly listed company and as the publisher of a newspaper with wide circulation in Hong Kong.

26. In his Reply, Mr Ma denied that the words set out above were comment and went on to plead that the defendants were "actuated by express malice" in publishing the article. By way of particulars Mr Ma pleaded :

(a) That he relied on the matters pleaded in para. 9 of the statement of claim (as set out above);

(b) That as at the date of the Reply (12 July 2000) OPG, Mr Ma and companies within the OPG group had been engaged in extensive litigation against all or some of the defendants : Schedule A then listed seven pieces of litigation in the High Court (including the 2 referred to in para. 9(c) of the statement of claim and the present action);

(c) That OPG, Mr Ma and companies within the OPG group were engaged in litigation with the proprietors publishers editors and printers of Apple Daily and Easyfinder Magazine; that Apple Daily and Easyfinder Magazine were owned and published by companies affiliated to the 1st Defendant : Schedule B then listed nine High Court Actions of which 4 were for copyright infringements and the rest for defamation : OPG and related persons were plaintiffs in seven cases and defendants in two.

(d) The Reply then went on to aver that Next Magazine, Apple Daily and Easyfinder were "sister publications" and that persons constituting "the editorial management" held monthly joint meetings.

Finally, the Reply averred as follows :

(e) "The defendants seized upon this opportunity to attack the integrity and public image of the plaintiffs having calculated that the benefits to them or their affiliated company through disparaging the image and reputation of the plaintiffs would outweigh any compensation payable to the plaintiffs".

(f) "The defendants had no honest belief in the correctness and/or fairness of the alleged comments and had no honest belief in the truth of the alleged factual basis of the alleged comments".

The trial

27. The action went for trial before Chung J and a jury in July 2000. It took a most curious turn. Mr Ma, whose character and reputation had allegedly been grievously injured by the publication of the article, did not testify, nor was any oral evidence called on behalf of the plaintiffs. At the close of the plaintiffs' case counsel for the defendants asked the judge to withdraw the issue of malice from the jury because there was insufficient material to sustain a finding of malice. This application was refused and the trial proceeded. The jury by its verdict found for Mr Ma against the 1st defendant (the publisher) and 2nd defendant (the editor) but found for the 3rd defendant (the printer).

28. The position here of all three defendants was in fact identical : The only reasonable inference to be drawn from the verdicts is that, as regards the 3rd defendant, the jury was satisfied that the defence of fair comment succeeded, but not in respect of the other two defendants : Hence the question of malice became the crucial issue : Just as in Cheng v. Tse Wai-chun (2000) 3 HKCFAR 339 (see 350) to which extensive reference will be made later on. The jury awarded compensatory damages of $10,000 and aggravated damages of $100,000 to Mr Ma against the 1st and 2nd defendants.

Court of Appeal

29. The defendants being dissatisfied appealed to the Court of Appeal. That court sat to hear the appeal in June 2001. In the meanwhile, the Court of Final Appeal had given its judgment in Cheng v. Tse where the confines of "malice" which might defeat a defence of fair comment were redefined. Hence, the Court of Appeal was faced with two matters : (1) whether the judge had erred in law in refusing the defendants' application to withdraw the issue of malice from the jury, and (2) whether the judge had misdirected the jury on that issue, in accordance with his then understanding of the law concerning "malice" prior to Cheng v. Tse.

30. The Court of Appeal held against the defendants on the first matter, upholding the judge on his ruling that there was sufficient material on "malice" to go before the jury. As to the second matter, the Court of Appeal concluded that the judge, based upon his understanding of the law prior to Cheng v. Tse, had misdirected the jury by putting the issue of "malice" before the jury too wide : Spite, animosity, ill-will or a dominant and improper motive comprising a desire to harm the plaintiff was insufficient of itself to defeat the defence of fair comment, as this Court had held in Cheng v. Tse, though such matters might constitute evidence of dishonesty - that is to say, lack of honest belief in the views expressed; but, ultimately, "honesty of belief is the touchstone" (per Lord Nicholls at 360J). Hence, the Court of Appeal quashed the judgment and ordered a re-trial, but limited to the issues of fair comment and damages.

31. The defendants being dissatisfied appeal to this Court.

What is the "sting" in the article?

32. In his pleadings Mr Ma had put his case very high. As pleaded, the "sting" in the article was, as earlier mentioned, that Mr Ma, in selling his shares in OPG, had abused his position as director of the company and was guilty of insider dealing : If this was the natural and ordinary meaning of the article then no comment was involved : This would have been a pure statement of fact, highly defamatory of Mr Ma. As Lord Reid said in Lewis v. Daily Telegraph Ltd [1964] AC 234 at 260 : "... there is a great difference between saying that a man has behaved in a suspicious manner and saying that he is guilty of an offence ...". The defendants never sought to justify such imputation. Their case was that the article was not capable of bearing such a meaning. Had the jury reached their verdict by taking that as the meaning of the article they must necessarily have found against all three defendants : This was the most injurious meaning which Mr Ma claimed by his pleading that the words were capable of bearing : A meaning which the jury, in finding for the 3rd defendant, had plainly rejected : Rightly so, in my view. There is no suggestion in the article that Mr Ma had misused relevant information in effecting the sales; the article did not accuse Mr Ma of abusing his privileged position as a director (or "insider") to gain a personal advantage; it simply raised a question mark as to the reason behind the sale of shares.

33. The law does not prohibit directors of publicly listed companies from buying or selling shares in their own company. Many often do. What the law requires is that, when they deal, they make disclosure of that fact in compliance with the Securities (Disclosure of Interests) Ordinance, Cap. 396. This Mr Ma did.

34. There are many reasons why directors might sell shares or even their entire holdings without infringing in anyway the provisions of the Securities (Insider Dealing) Ordinance, Cap. 395. The fact of selling by an insider is neutral. It is only when a director has used relevant information obtained in his privileged capacity as a director to sell that he acts in breach of that Ordinance and becomes guilty of insider dealing.

35. Here, as is plain to see, the author of the article has carefully avoided making any such imputation against Mr Ma.

36. The only inaccuracy in the factual statements was that the 42 million shares were sold on "three separate occasions" : In fact they were sold on 5 trading days in separate lots and in different prices : Those prices fluctuated, starting at $3.45 per share and ending at $3.15. To this extent the comment that the "big sale exercise" went "lower and lower" was accurate. Plainly the slight inaccuracy as to the number of occasions when sale took place was in no way material. (I would also mention in parenthesis that the actual number of shares was 42,614,000 : But counsel has never suggested that the averment of "42 million shares" was an inaccuracy.) Here we have a prominent figure in the business community, vice-chairman of a public company which owned a daily newspaper having a very wide circulation in Hong Kong, selling his entire shareholding in the company, over a period of barely one week, yielding $143 million-odd. This is plainly a matter of public interest, and worthy of comment by persons involved in the media : Arguably, it might even be said that the media, vigilant in the interests of the investing public, had a duty to comment and draw attention to such happening.

Fair Comment

37. What then was the comment? There were several. To start with, that this was a "big sale exercise" and that it was "fierce". That, plainly, was a matter of opinion : Anyone reading the article could have formed his own view as to whether the sale was "big" or "fierce" : Viewed objectively, it can be said that the disposal of an entire shareholding of 142 million shares in the circumstances described was a pretty vigorous exercise or was pretty "fierce". That was a view which could have been honestly held.

38. Then there was the rhetorical question : "What is the mystery behind this?" followed by the comment "It gives one much food for thought". This, as one might reasonably conclude, was a comment of the mildest nature, arising from the fact that Mr Ma had apparently never given any reason for the sale : The disposal of his shareholding occurred in mid-May; the article appeared two weeks later : To suggest in these circumstances that there might be some "mystery" behind the disposal is clearly not beyond what an honest person might do, even though such suggestion might tend marginally to lower Mr Ma in the estimation of right thinking members of the community. The bland sentence at the end of the article "It gives one much food for thought" adds nothing to the earlier comment.

39. Counsel for Mr Ma argues that the comments were much more injurious than that. He submits that they went well beyond mere musing as to the reasons for the sale and made actual imputations of dishonourable conduct against Mr Ma : But, as Lord Blackburn said in Capital and Counties Bank v. George Henty & Sons (1882) 7 App. Cas. 741 at 786 "... it is unreasonable that when there are a number of good interpretations, the only bad one should be seized upon to give a defamatory sense to the document ...". Here, the article allows for little tolerance in shades of meaning : Either it imputed dishonourable conduct to Mr Ma (that is to say, abuse of his privileged position as a director and insider dealing contrary to the Securities (Insider Dealing) Ordinance) or it was something much less injurious : If it was the former, the defendants had no defence : It would have been an imputation of fact wholly unjustified. But that was not the Court of Appeal's approach : Rightly so, having regard to the jury's verdict vis-a-viz the 3rd defendant and to the tenor of the article. It is also worthy of note that, in introducing the question of "malice" to the jury, the trial judge said : "Now, by the time you need to consider this aspect, it would mean that you have already found the defamatory statements were comments and that they were fair because otherwise, the defence of fair comment already failed." It must be assumed that that was how the jury approached the issue of malice : Having been satisfied that the comments in the article were ones which an honest person could have made : That is to say, rejecting the far more injurious meaning as urged by Mr Ma's counsel.

40. In my view, the objective criteria which constitute the ingredients of the defence of fair comment - see Cheng v. Tse at 347 - have been more than satisfied in this case.

Malice

41. Once this point is reached, the defence of fair comment succeeds unless the plaintiff is able to show by credible evidence that the defendants were actuated by "malice" : As traditionally put, until Cheng v. Tse, this meant that the defendants were dishonest or reckless or actuated by spite, ill-will or a dominant and improper motive comprising a desire to harm the plaintiff : see Halsbury's Laws of Hong Kong Vol.25 para. 380.605. Since Cheng v. Tse the scope of the matters which might defeat the defence of fair comment are more restricted : Proof of spite, ill-will, improper motive and the like will not be enough : The plaintiff must show by credible evidence that the defendant did not genuinely hold the view he expressed.

42. But, reverting to the position facing the trial judge in July 2000, when he was asked by counsel for the defendants at the close of the plaintiffs' case to withdraw the issue of "malice" from the jury, what does one see? As summarized by the Court of Appeal the facts, admitted or proved, bearing on the issue of malice were these :

" (a) the affiliated companies of D1 and D2 and were keen competitors and rivals of the affiliated companies of P1;

(b) the existence of numerous court actions between the 2 groups;

(c) 'Next' Magazine, Apple Daily and other publications are and were 'sister' publications;

(d) the editorial management of the said publications held regular joint meeting every month;

(e) the lack of honest belief as to the truth of the facts stated in the subject article or correctness/fairness of the comment;

(f) it can be inferred that the defendants intended to harm/injure the plaintiffs."

43. It will be seen right away that the facts bearing on the issue of malice, as found established by evidence, were on a far lower scale than the averments set out in the plaintiffs' statement of claim : Not perhaps surprisingly, since no one testified on their behalf.

44. As regard items (e) and (f) above, these can be eliminated from consideration right away as they amount to nothing more than accusations : an accusation remains an accusation unless it is supported by evidence. Then, going up the line, one sees item (d) : the fact that persons constituting the "editorial management" of the various publications owned by the affiliated companies of the 1st defendant held regular joint meetings every month : It would be absurd to suggest that such occurrences could give rise to an inference that the defendants' act of publication was actuated by spite, ill-will or anything else. We then see item (c) : That the various publications of those affiliated companies were "sister" publications : What inference adverse to the defendants could be drawn from that is beyond the scope of imagination. One is then left with only two remaining facts : (a) that the affiliates of the defendants were keen competitors and rivals of OPG and its affiliates and (b) that there existed numerous court cases between the two groups. Unless it can be said that those two matters must necessarily give rise to an inference of dishonesty, recklessness, spite, ill-will and the like, to cause one (or perhaps both) of them intentionally to publish libellous statements of the other, then those facts are neutral. As regards the court cases, as mentioned earlier, OPG and its affiliates were plaintiffs in a majority of those cases : It can no more be assumed that OPG were in the right in those cases than that they were in the wrong and that, in instituting those proceedings, they were actuated by spite or ill-will et cetera and not simply a desire to redress a civil wrong through the court process.

45. There are cases, of course, where the statements made by the defendant are so extravagant, outrageous, and injurious of the plaintiff's reputation that "malice" can be inferred from the statements themselves. This was not the Court of Appeal's approach. Rightly so, having regard to the tone and contents of the article.

46. Proof of "malice" is subjective. "Malice" exists in the defendant's mind. It is to be inferred from what the defendant did and said. From such external facts the defendant's state of mind is to be deduced. This leads immediately to the question : Whose mind precisely is the court concerned with in this case? The 1st defendant is a company, a legal person, with no mind as such, except for that which might be attributed to it by an examination of its managerial structure and the things said and done by persons who could be regarded as its directing mind. But no evidence was put before the court in that regard. So, at the conclusion of the plaintiffs' case, the position remained no more than this : That the 1st defendant company published a weekly magazine which was a keen rival of another magazine published by an associated company of the OPG group; that the 1st defendant was "affiliated" with companies which had popular publications which rivalled those published by OPG and its associates; that the two groups were locked in extensive litigation. Full stop. Unless there was some evidence that the directing minds of the relevant companies had the necessary dishonest intent, the external facts as summarized above did not advance the plaintiffs' case beyond mere accusations.

47. As regards the 2nd defendant he was merely the editor of Next Magazine : Presumably an employee. There is no suggestion he was a director of the 1st defendant company, privy to the deliberations of its board, part of its "directing mind". Nothing suggests that he had anything to gain by knowingly participating in a "campaign of vilification" against the OPG group. An intent that might reasonably be attributed to the 1st defendant as a corporation, one of a group of companies, is not necessarily that of the 2nd defendant.

Did the judge err in leaving the issue of "malice" to the jury?

48. As mentioned by the Chief Justice in Cheng v. Tse at 345D-E the right of fair comment is a most important element in the freedom of speech, and in a society which greatly values this freedom, the court should not adopt a narrow approach to the defence of fair comment : This was simply a felicitous re-statement of a principle which governed this area of the law even prior to the decision in Cheng v. Tse. It was relevant in the trial judge's exercise of judgment when deciding whether to leave the issue of malice to the jury.

49. At the hearing before us, there was much discussion as to the level of the threshold which a plaintiff must surmount before "malice" could properly be put before the jury : It is common ground that there must be more than a scintilla of evidence and that mere surmise is not enough. In other words, there must be some facts proved, on the basis of which a reasonable person could infer "malice". In my judgment this case affords no occasion for a more detailed analysis of the principle involved. For here there was not even a scintilla of evidence. This can be demonstrated by looking at the way the judge eventually summed up this issue to the jury. He said that Mr Ma relied on five matters :

(1) The two groups were keen competitors : This requires no further comment.

(2) There was a history of ill-feeling between the two groups : This, with respect, is too broad a statement, both with regard to corporations governed by their own constitutions and by the law and with regard to the 2nd defendant. It pre-supposes that ill-feeling existed. And how "history of ill-feeling between the two groups" could be evidence of malice on the 2nd defendant's part is difficult to imagine. Moreover, ill-feeling as such - assuming it could properly be inferred from the bare fact of rivalry and litigation - is not enough; it is far too nebulous a concept; what had to be established was a dominant and improper motive on the part of the defendants comprising a desire to injure Mr Ma by the publication of the article : See May LJ's formulation in Alexander v. Arts Council of Wales [2001] 1 WLR 1840 at 1851C, citing the authority of Horrocks v. Lowe [1975] AC 135, which of course was pre - Cheng v. Tse.

(3) The defendants did not honestly believe in the truth of the facts stated in the article : This is bare assertion, which does not gain strength from repetition.

(4) The defendants were reckless as regards those facts : The same observation in (3) above applies.

(5) There was "an intention on the defendants' part to harm the reputation of [Mr Ma's] group of companies ... [their] directors and officers" : This again was a bare assertion and remained as such until supported by proof.

50. In short, what Mr Ma was seeking to do as regards his case of "malice" was - to use the proverbial expression - to raise himself up by his own boot-straps.

51. In my judgment, the judge ought never to have left to issue of "malice" to the jury. He erred in law in doing so and I would so hold.

Conclusion

52. It follows from the above that the defence of fair comment must necessarily succeed. The position of the three defendants was indistinguishable. This, in my judgment, accords with the justice of the case. In no way can it be said that the statements of fact in the article were distorted, grossly exaggerated or unfair. Persons holding positions of trust in publicly quoted companies must expect a certain amount of media attention when they do something which could affect an investor's view of the value of his shareholding, such as buying or selling large parcels of shares in his own company. In these circumstances, when the facts are stated with a reasonable degree of accuracy, the policy of the law is not to discourage comment, or even strong and robust comment on those facts, so long as such comments are made with genuine belief in the truth of those statements. This is an important aspect of press freedom and accords with the Chief Justice's statement of principle in Cheng v. Tse at 345D - E, with which the rest of that Court agreed. Here the plaintiff sought to defeat the defence of fair comment by alleging "malice" but he could in no way invite an inference of "malice" to be drawn from the statements in the article itself, so he had to look outside for support for his case : He called no evidence : And, in this regard, he failed in limine.

53. Before I conclude, I would make a brief comment on the Court of Appeal's order : For re-trial on the issues of fair comment and damages only. The Court of Appeal so ordered, presumably, because they came to the view that the article was incapable of bearing the most injurious meaning which Mr Ma had alleged in his pleading : Namely, that Mr Ma was guilty of insider dealing, et cetera : Or, at any rate, that the jury must have so concluded and it would accordingly be unfair on the defendants to have this aspect of the case re-opened in the fresh trial. If the Court of Appeal had thought otherwise, it would have been grossly unfair on Mr Ma to have limited the re-trial to the issues of fair comment and damages only, thereby precluding the new jury from finding in Mr Ma's favour that the article bore the highly injurious sting which he had averred in his pleading : That the article meant that he had abused his privileged position as a director in selling the shares, et cetera. Once that sting is removed, it leaves the article as a reasonably accurate statement of fact and a somewhat mild and innocuous comment (with perhaps a slight raising of eyebrows) on Mr Ma's activity : It seems odd that Mr Ma would still wish to pursue this matter on a re-trial, but we were told at the hearing that indeed was Mr Ma's position. On the view which I hold of the correctness of the judge's ruling, there would be no re-trial and - on more mature reflection - that might even come as a relief to all parties.

Post-script regarding Cheng v. Tse

54. Mr Michael Thomas SC, counsel for Mr Ma, argues that Cheng v. Tse had changed the "goal posts" regarding what a plaintiff had to prove to establish malice and, as a matter of plain justice, Mr Ma should have the opportunity to "re-focus" his case, based only upon the matter of honesty or genuine beliefs or more precisely the lack thereof on the defendants' part. But, as mentioned earlier, Mr Ma had, in his Reply, distinctly raised the very issue (see para. 26(f) above) and it was incumbent upon him to put his entire case before the court : It would be wrong to assume that, at the trial before Chung J and the jury, Mr Ma had deliberately withheld evidence bearing upon dishonesty, hoping for another "bite at the cherry" should he fail to establish his case on "malice" based on spite, ill-will et cetera. No lawyer would have advised him to take such a course, having regard to Yat Tung Investment Co Ltd v. Dao Heng Bank Ltd [1975] AC 581. This Court could only proceed properly upon the assumption that any evidence which Mr Ma might have had, bearing upon the defendants' lack of honest belief, would have been adduced at the trial : And, as one can see, there was none. The dismissal of Mr Ma's case now can cause no injustice.

The Orders

55. The orders I would make are as follows :

(1) That the Court of Appeal's judgment and orders be discharged.

(2) That the jury's verdicts in Mr Ma's favour against the 1st and 2nd defendants be set aside, likewise the awards of damages in Mr Ma's favour and judgment be entered in favour of the 1st and 2nd defendants.

(3) That the 1st and 2nd defendants should have their costs in this Court and in the courts below : This should be an order nisi, to be made absolute within 14 days unless the parties should submit in writing otherwise (with copies to each other) in which event the costs would be determined upon the basis of those submissions without a further hearing.

Mr Justice Mortimer NPJ:

56. It is unnecessary to repeat the detailed history of this action for defamation described in the judgments of Mr Justice Litton and Lord Cooke of Thorndon NPJJ.

57. The article complained of was published in Next Magazine on 1 June 1995. The 1st defendant was publisher of the Magazine, the 2nd defendant was the editor and the 3rd defendant was the printer. The trial before Chung J and a jury was in July 2000. We have had no explanation for that delay.

58. The plaintiffs were the Oriental Press Group Limited (OPG) and Mr Ma Ching Fat, its vice-chairman and a director. At the end of their case the judge held that there was no case to answer in respect of OPG's claim.

59. As far as I am aware the defamation trial was unique. No oral evidence was called on either side. The evidence before the jury was limited to admissions and documents; the most important part of which was the offending article itself. The translation of the article reads as follows:

"Publisher Ma sold all his stock of 'Oriental'

'Oriental Daily' publisher Ma Ching Fat (younger brother of chairman Ching Kwan) originally held 42 million shares in Oriental Press Group Limited but in the early part of this month, publisher Ma on 3 occasions sold all of such shares, not leaving one unsold. Although the price in this big sale exercise went lower and lower, the sale nevertheless realized one hundred and forty-three million for publisher Ma who pocketed the proceeds. Publisher Ma is after all in an insider of Oriental. His sale of Oriental shares had been so fierce. What is the mystery behind this? It gives one much food for thought."

60. The plaintiff (Mr Ma) alleged that the article was defamatory. The most serious "sting" pleaded and advanced at the trial was that the article alleged the plaintiff to be guilty of insider dealing (with all that this entails) either as a fact or as a comment upon the facts disclosed.

61. As noted by Lord Cooke of Thorndon NPJ in para. 125 of this judgment, the defendants advanced a much milder true meaning but they did not ask the judge to withdraw the above alleged meaning from the jury nor did they seek to justify it.

62. The defendants relied in their defence upon fair comment on a matter of public interest. The "matter" was unquestionably of public interest, so I turn to the relevant issues before the jury.

63. The first issue: did the article contain defamatory statements of fact? If so, there was no plea of justification, fair comment is not a defence to a defamatory statement of fact, and no other defence was put forward. Lord Templeman made the point in Telnikoff v. Matusevitch [1992] 2 AC 343 at 356A:

"If the contents of the letter included defamatory statements of fact, however, then the plaintiff will succeed in his action for defamation unless the statements of fact set out in the letter were true. If the contents

'were a statement of facts, and the facts were untrue, a plea of fair comment would not avail and it is for the jury in a proper case to determine what is comment and what is fact, but a prerequisite to their right is that the words are capable of being a statement of a fact of facts:' per Lord Porter in Turner v. Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All E.R. 449, 461."

The second issue was whether this article on a matter of public interest contained defamatory comments.

64. If the jury found a defamatory comment, two further issues arose. The first was whether the comment was objectively fair in accord with the five tests described by Lord Nicholls in Cheng v. Tse (2000) 3 HKCFAR 339 at 347 C-J. Briefly these are:

1. The comment must be on a matter of public interest.

2. The comment must be recognisable as comment, as distinct from an imputation of fact.

3. The comment must be based on facts which are true.

4. The comment must explicitly, or implicitly, indicate in general terms the facts on which the comment is made.

5. The comment must be one which could have been made by an honest person, even if prejudiced, given to exaggeration or obstinate.

65. Only if these tests are met is the defence established. Finally, if the defence of fair comment is established, the defendants are entitled to succeed unless the plaintiff is able to demonstrate on the evidence (the burden being on him) that the comment was made maliciously.

The Summing-Up

66. The judge directed the jury on malice before the decision of this Court in Cheng's case. He therefore dealt with the "old" law - a matter to which I will return.

67. The jury was directed upon the issues I have outlined. The judge instructed them that the only defence raised by any defendant was that of fair comment on a matter of public interest. He explained that if they found the article to be defamatory the burden of proving the defence was on the defendants and (at 7T - 8E):

"There are four matters to consider: (a) whether the defamatory statements in the article were comments and not facts; so I say again, whether the defamatory statements in the article were comments and not facts; (b) if you find them to be comments, whether the comments were based on facts; and (c) if you find them to be based on facts, whether the facts on which the comments were based, had been misstated; and (d) finally, whether those statements were fair. Now, when I say whether the comments were fair, it means whether the comments were ones which an honest person might make even though this person may be biased or the comments were exaggerated."

Further at 8S he said:

"... if ... the comments are so confused with the facts that a reasonable reader cannot separate the facts from the comment reasonably clearly, then as a matter of law, the defence fails."

68. The judge later directed on each of the matters he had outlined including s.27 of the Defamation Ordinance, Cap. 21:

"Where words consist partly of allegations of fact and partly of expression of opinion, the defence of fair comment shall not fail only because the truth of every allegation of fact is not proved, provided the expression of the opinion is fair comment having regard to such of the facts as has been proved."

He then turned to malice in these terms:

"Now, by the time you need to consider this aspect, it would mean that you have already found the defamatory statements were comments and that they were fair because otherwise, the defence of fair comment already failed. Now, the burden of proving malice is on the 2nd plaintiff. Now, the reason why malice would defeat the defence of fair comment is that a person, although the law recognizes freedom of speech, a person cannot abuse his freedom of speech by making comments with improper motive."

69. As is indicated there, the judge dealt with malice as it was then understood. He dealt with both aspects. Those are ill-will or spite as the dominant motive, and secondly lack of honesty. The latter in these words:

"Instead, malice in law can be proved if there is evidence that the comments were not made honestly for the proper purpose, now provided this improper motive or improper purpose was the dominant reason ..."

He returned briefly to honest belief at 14 B - F as follows:

"Now, if the jury concluded that the comments in the article were in fact fair comment, you may think that you are not so ready to conclude that the defendants have no honest belief in the correctness or fairness of the comments. And further, if you conclude that there was honest belief in the truth of the facts stated, and the correctness or fairness of the comments made, the jury may not be so ready to infer that the defendants acted with malice."

70. Finally the jury were directed that the defendants were to be treated separately if it became necessary for them to consider malice.

The verdicts

71. The jury found the 1st and 2nd defendants liable but not the 3rd defendant. Malice was the only matter upon which they could distinguish between them. Prima facie it follows that they found:

1. That the article was defamatory.

2. That the defamatory statement was comment, not fact.

3. That objectively all defendants established the defence of fair comment.

4. That the plaintiff proved malice, as then understood, against the 1st and 2nd defendant but not against the 3rd defendant.

Malice

72. At the conclusion of the plaintiff's case, there was an application by the defendants to withdraw malice from the jury on the basis that there was no evidence for them to consider on this issue. It was a clear-cut submission as no oral evidence had been tendered. The plaintiff relied on the following evidence - all in document or admissions :

"(a) the affiliated companies of D1 and D2 are and were keen competitors and rivalries of the affiliated companies of P1;

(b) the existence of numerous court actions between the 2 groups;

(c) 'Next' Magazine, Apple Daily and other publications are and were 'sister' publications;

(d) the editorial management of the said publications held regular joint meetings every month;

(e) the lack of honest belief as to the truth of the facts stated in the subject article or the correctness/fairness of the comment;

(f) it can be inferred that the defendants intended to harm/injure the plaintiffs."

73. The judge ruled that there was evidence to go before the jury and gave reasons.

74. After the conclusion of the trial this Court decided Cheng's case. The judge's directions on malice as then understood were wrong. The law is as stated by Lord Nicholls NPJ at 360I - 361A:

"... a comment which falls within the objective limits of the defence of fair comment can lose its immunity only by proof that the defendant did not genuinely hold the view he expressed. Honesty of belief is the touchstone. Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive, does not of itself defeat the defence. However, proof of such motivation may be evidence, sometimes compelling evidence, from which lack of genuine belief in the view expressed may be inferred."

The Court of Appeal

75. On appeal to the Court of Appeal, the defendants contended that the judge's ruling that there was evidence to go before the jury on malice was wrong. It was submitted that he applied the wrong standard, otherwise he would have withdrawn malice from the jury. Further that the judge's directions on malice were wrong in the light of Cheng's case.

76. The Court of Appeal ruled against the defendants on the first matter and in favour of them on the second. The Chief Judge (with whom the others agreed) recognized that in these circumstances the usual order is for a re-trial, but as the appeal was restricted to the defence of fair comment, the order for a re-trial was limited to the defence of fair comment and damages.

This Court

77. Before this Court, Mr Ronny Tong SC for the defendants maintains his contention that the judge ought to have withdrawn malice from the jury and that the Court of Appeal was wrong not to so rule. He submits that the issue of honest belief was before the jury even under the "old" law. He notes that the plaintiff pleaded and relied upon para.2(2)(E) of his much amended Reply which alleges : -

"(E) The defendants had no honest belief in the correctness and/or fairness of the alleged comments and had no honest belief in the truth of the alleged factual basis of the alleged comments."

78. So, he says, the plaintiff's duty was to put before the court all the evidence on the lack of honest belief issue available to him and on which he wished to rely. No such evidence other than that upon which the judge ruled was advanced at the trial. So, he submits, if he is right in his contention that there was no evidence of malice under the old law, there is no evidence to go to the jury of lack of honest belief on the Cheng test. The consequence is that in the absence of proof of malice the defendants are entitled to judgment.

What weight should we give to the verdicts of the jury?

79. There is no cross-appeal and in supporting the decision of the Court of Appeal Mr Michael Thomas SC for the plaintiff suggests that it is open to question whether this Court should conclude that the jury found malice proved against the 1st and 2nd defendants. This analysis of the jury's verdicts is only "superficially attractive" he submits and should not be accepted. Much has been said and written in the past maintaining that juries are unpredictable and worse. Often, it must be said, those sentiments are expressed in other jurisdictions. Without suggesting that it is the universal experience, here in Hong Kong juries tend to be both intelligent and diligent. Be that as it may, if they are consistent the starting point for review must be the verdicts of the jury. Unless there is some good reason for concluding that a jury has not faithfully followed the judge's directions necessary inferences should be identified and accepted. Note the following passage in Lord Nicholls NPJ's judgment in Cheng at 350 H-J :

"Although the jury gave a general verdict against each defendant and did not give a special verdict on particular issues, it is possible to draw certain inferences from the verdicts. The presence or absence of malice was the one respect in which a distinction could be drawn between any of the defendants. Otherwise, the position of all three defendants was identical. So, having decided against the two individual defendants but in favour of the broadcasting company, the jury must have found one or more of the particulars of malice proved against the individual defendants. Had the jury found for them on the question of malice, they too would have obtained favourable verdicts. Hence, so far as the individual defendants were concerned, the presence or absence of malice became the decisive factor in the case."

The Proper Inferences

80. Giving due weight to the judge's directions and the verdicts of the jury which followed I turn to the inferences which are to be drawn. They concern the only defence advanced by each of the defendants - fair comment. As explained by the judge a defendant will establish this defence prima facie if he proves the five objective criteria set out above. Only if the defence is established do the jury turn to the question whether the plaintiff has proved malice to defeat the defence.

81. The verdict in favour of the 3rd defendant indicates therefore that he persuaded the jury of the five objective criteria to make good his defence of fair comment. In leaving this decision to the jury the judge himself concluded that there were facts in the article itself upon which it was open to the jury to reach this verdict. There is no reason to think that the jury took any other view of the 1st and 2nd defendants' defences of fair comment.

82. The matters relied upon by the Plaintiff to establish malice concerned the 1st and 2nd defendants. The jury found that malice was proved which negatived their defences of fair comment. The sole distinction to be drawn between the defendants was on the question of malice. The clear inferences are that all the defendants established the defence of fair comment but the plaintiff proved malice against the 1st and 2nd defendants only. On this basis the 1st and 2nd defendants were held liable but the jury found in favour of the 3rd defendant on his only defence.

The Judge's ruling on evidence of malice

83. We heard some oral argument on the correct approach of a judge in a defamation action to the decision whether there is sufficient evidence to go to the jury. For my part the Court of Appeal set out the correct test. I would hold that there is no special principle applicable to defamation. I would express the proper approach as follows: before the issue of malice can be left to the jury, there must be evidence which taken at its highest is such that a properly directed jury could find malice to be proved on a balance of probabilities. (See Alexander v. Arts Council of Wales (CA) [2001] 1 WLR 1840 at 1854 per May LJ).

84. I see no reason to conclude that the judge applied any other test. But the issue remains whether it was open to him to leave malice to the jury and whether the Court of Appeal was correct in so finding.

85. There were 6 matters relied upon by the plaintiff upon which the judge's ruling was sought. The judge indicated that he thought individually these matters may have "a neutral appearance" but they were sufficient when taken together. The Court of Appeal was of similar view.

86. The evidence comprised agreed documents and agreed facts. No other evidence was called. Proof alone that the 2 groups of companies, one owned by OPG and the other, of which the Next Magazine was a part, were competitors plainly cannot found a proper inference of "old" malice. Admissions that Next Magazine and Apple Daily were "sister" publications and that their editorial management had joint monthly meetings fall into the same category.

87. The existence of "numerous" court actions between the 2 groups even though they were proceedings for defamation leads to no proper inference of ill-will without more. Of course, had there been evidence of obviously libelous articles, unwarranted attacks, and so forth the position could be otherwise. No evidence of this kind was available.

88. The last two matters concern allegations, first of honest belief, and second an intention to harm or injure. These were put forward both before the judge and the Court of Appeal by the plaintiff as proper inferences to be drawn from the earlier "evidence". I cannot agree. It is not open to infer these matters from mere existence of litigation between the groups.

89. For these reasons I find myself differing from the Court of Appeal on this matter. The judge ought to have withdrawn malice from the jury. I would hold that he was plainly wrong to leave this issue to the jury on the evidence advanced. Had he done so, the 1st and 2nd defendants would also have had verdicts in their favour.

90. I have also considered whether the plaintiff could have found any comfort in the use of language or tone of the offending article. It seems to me that this can and ought to be put out of mind. Nothing of this nature was advanced at trial and this was not part of the plaintiff's case. I will return to this matter.

Honest Comment

91. Although the judge was not at fault, his directions to the jury on malice were erroneous. We now know that to defeat the defence of fair comment lack of honest belief has to be shown and that proof of ill-will, spite and so forth does not of itself defeat the defence. Proof of ill-will is, however, still relevant and may be compelling evidence of lack of genuine belief.

92. When there is a misdirection on malice in such circumstances, a re-trial is the usual order giving each party, where possible, the benefit of decisions in its favour. This was the approach of the Court of Appeal in ordering a re-trial limited to malice and damages. In this way, the decision in favour of each defendant that he had proved fair comment is preserved.

93. The difficulty in this case is that no special verdicts were taken from the jury. It is not known what defamatory meaning of which comment was ascribed by the jury. For my part I cannot envisage how a judge will be able to handle a trial limited in the manner ordered. The starting point for the jury must be the meaning of the defamatory comment which has satisfied the objective tests for fair comment. This cannot be inferred from the jury's verdicts. In these circumstances, there is no basis on which a trial on the limited issues can begin.

94. The order for a re-trial after a misdirection on law is also made because usually justice requires it. The way in which the parties present their cases on a re-trial may differ to take account of the way in which the jury will be directed. Also new or different evidence may be called for the same reason.

95. The aim is to do justice between the parties.

Should a new trial on all issues be ordered?

96. With this in mind, I approach the question whether a new trial on all the issues should be ordered.

97. There is no cross-appeal. The plaintiff contends that the Court of Appeal's decision and order should be upheld but as I have indicated this is not practical. A new trial on all issues will deprive the defendants of such benefits from the verdicts to which they would otherwise be entitled. In these circumstances, it could be unjust to order a new trial unless there is a real prospect that the plaintiff will be able to call further evidence of lack of honest belief or will be able to differently focus his case to the same end.

98. As to the evidence, lack of honest belief was an issue at trial. It must be assumed that the plaintiff adduced all the evidence available to him, which he wished to advance. There was none fit to go to the jury. After 7? years it is difficult to accept that any further evidence will now be available. There has been no suggestion or indication from his counsel that there is any or any prospect that more can be obtained. It is safe to conclude that there is none.

99. Additionally it is right that we could consider whether there is any reasonable possibility that he can re-focus his case on this point to his advantage. In this respect I turn to the article itself and whether the plaintiff can seek any comfort from the words used and the way in which they appear in the article - the original of which is in Chinese. Often this is the starting point for a plaintiff. However, the case has never been put forward on this basis; neither at trial; nor before the Court of Appeal; nor before this Court. Nor is such a case pleaded. It is significantly relevant to note in this context, that at trial the jury were satisfied that each of the 5 objective tests for fair comment were demonstrated.

100. As the issue of "honest belief" was before the jury, in my judgment, there is no reasonable prospect of the plaintiff being able to establish malice on the Cheng basis.

Conclusion

101. There are two conflicting matters when fairness to all parties is considered. The Court of Appeal correctly sought to preserve the benefit of the jury's decision for the defendants and, at the same time, allow the plaintiff to present his evidence of malice. For the reasons I have given, I would hold that there was no evidence of lack of honest belief fit for the jury to act upon. Further that there is no reasonable prospect that any further evidence is or will be available, nor is there any reasonable possibility that the plaintiff can succeed by re-focusing his case on to the terms of the article.

102. In these circumstances, I would not make the usual order for a re-trial on all issues. For the reasons I have sought to explain, I conclude that the just order is to enter judgment for the defendants.

103. Such an order also will put a timely end to this much delayed litigation and will avoid the difficulties of a new trial which would commence more than 8 years after the cause of action arose.

104. I would make the orders formulated by Mr Justice Litton NPJ.

Lord Cooke of Thorndon NPJ:

105. In this libel litigation the second plaintiff obtained a verdict at the trial against the first and second defendants. The Judge had directed the jury on a view of the law since established to have been wrong and unduly favourable to the second plaintiff. The Court of Appeal accordingly set aside the verdict and ordered a new trial on limited issues. The first and second defendants appeal from that decision, contending that a new trial could only properly result in their favour and that they are entitled to an outright dismissal of the action. There is no cross-appeal by the second plaintiff, who is content with a new trial.

The History of the Case

106. To deal with the appeal it is necessary to recount the history of the case in more detail. Next Magazine is published in Chinese in Hong Kong by Next Magazine Publishing Limited ("the publisher"). Mr Cheung Kim Hung ("the editor") was the editor at the material time. Toppan Printing Co. (HK) Limited ("the printer") is the printer. A business rival of the publisher is Oriental Press Group Limited ("OPG"), the holding company of the Oriental Press group. At the material time Mr Ma Ching Fat ("Ma") was a director and the vice chairman of OPG; since 1996 he has been the chairman.

107. In the issue of Next Magazine for 1 June 1995 there was included in a page relating to Hong Kong business personalities an item reading as follows in the certified English translation -

"Publisher Ma sold all (his) stock of <Oriental>"

<Oriental Daily> publisher Ma Ching Fat (younger brother of chairman Ching Kwan) originally held 42,000,000 shares in Oriental Press Group Limited; but in the early part of this month, publisher Ma on three occasions sold all of such shares, not leaving one unsold. Although the price in this big sale exercise went lower and lower, the sale nevertheless realised $143,000,000.00 for publisher Ma, who pocketed the proceeds.

Publisher Ma is after all an insider of Oriental. His sale of Oriental shares had been so fierce. What is the mystery behind this? It gives one much food for thought.

108. In November 1995 OPG as first plaintiff and Ma as second plaintiff began a libel action based on that item against the publisher as first defendant, the editor as second defendant, and the printer as third defendant. The action was tried before Chung J and a bilingual jury of seven persons in July 2000. It was an extraordinary trial. Neither side called any oral evidence. All that the jury had were bundles of documents, some formal admissions of facts by the defendants, and a table summarising the facts and the awards in nine other cases. (In England jury awards are not to be cited to other juries unless they have been approved on appeal: John v. MGN Ltd [1997] QB 586, 611-612.) All that the jury heard were addresses by counsel and the summing up of the Judge.

109. At the close of the plaintiffs' case the defendants applied for the dismissal of the first plaintiff's claim, on the ground that there was no case to answer so far as that plaintiff was concerned, and for the issues of exemplary damages and malice (in reply to a plea of fair comment) to be withdrawn from the jury.

110. In a ruling of 14 July 2000 Chung J granted the first application, on the ground that the item was incapable of being understood by a reasonable person to defame OPG. He also granted the second application, on the ground that a mere intention to injure at the time of the libel is not enough for exemplary damages; and on the further ground that in any event on the evidence the printer, who could not deserve punishment, could not be liable for exemplary damages, and an award against defendants sued jointly must be of a single amount for which each of them can be liable. But the Judge dismissed the third application, holding that there was evidence to go to the jury reasonably capable of establishing malice.

111. As regards malice in rebuttal of a defence of fair comment, the plaintiffs' case in the High Court had been pleaded and the arguments of counsel and the summing up at the trial had been based on what was called during the argument of this appeal the "old" law. It had been understood in Hong Kong, and to some extent elsewhere, that in defamation law the malice that would defeat a defence of fair comment was the same as the malice that would defeat a defence of qualified privilege. As explained by Lord Diplock in Horrocks v. Lowe [1975] AC 135, 150, malice defeating qualified privilege may consist of a lack of honest belief by the defendant in what he has stated, but that is not the only test. It may consist, for instance, in a dominant motive to give vent to personal spite or ill-will towards the person defamed.

112. So it was that in this case the Judge told the jury that (I am summarising) to mount a defence of fair comment the defendant had to show comments which an honest person might make, even though he might be biased or his comments exaggerated. That was and is correct. But then the Judge said in substance that to displace the defence the plaintiff would have to show Horrocks v. Lowe malice. One way of doing so would be to show lack of honest belief or recklessness (one of the plaintiff's allegations in this case); but another might be proof of an improper motive, such as (as also alleged by the plaintiff in this case) a campaign to injure the group of companies with which the plaintiff was linked.

113. In Reynolds v. Times Newspapers Ltd [2001] 2 AC 127, 193, decided by the House of Lords in October 1999, the speech of Lord Nicholls of Birkenhead heralded a different approach in English law. Lord Nicholls said that the time had come to recognise that in this context the epithet "fair" is now meaningless and misleading. The defence is available for what is recognisably comment on a matter of public interest, as distinct from imputations of fact. [I interpolate that satisfaction of the requirement of public interest is not in dispute in the present case.] But one constraint does exist. "The comment must represent the honest belief of its author. If the plaintiff proves he was actuated by malice, this ground of defence will fail."

114. Lord Nicholls was to develop in Hong Kong the thinking stemming from those observations in Reynolds. In Cheng v. Tse Wai Chun (2000) 3 HKCFAR 339, decided in November 2000, his was the principal judgment, although there were also some important observations (at p.345) by the Chief Justice about the need for the courts to adopt a generous approach so that the right of fair comment on matters of public interest is maintained in its full vigour.

115. In Cheng Lord Nicholls held (see, for instance, pp.353-354) that motivation by spite or ill-will is not enough of itself to amount to malice in the law of comment. "Proof of such motivation may be evidence, sometimes compelling evidence, from which lack of genuine belief in the view expressed may be inferred" but "Honesty of belief is the touchstone" (pp.360-361). All the other members of the Court of Final Appeal sitting in that case concurred.

116. At the trial of the present case the jury, having been directed that in the law of fair comment malice bears the wider meaning, returned a verdict for Ma against the publisher and the editor for HK$10,000.00 compensatory damages and HK$100,000.00 aggravated damages. On the other hand they found for the printer against Ma. In the light of what the Judge told them in the summing up about the possibility of distinguishing between the defendants on malice, the most likely explanation, as in Cheng (see p.350), is that they found that the publisher and the editor were actuated by malice but that the printer was not.

117. In England it has not been the practice in defamation cases to make a separate award of aggravated damages: see Gatley on Libel and Slander, 9th ed. (1998) paragraph 9.14, n.99. There are many passages in the speeches in the House of Lords in Cassell & Co. Ltd v. Broome [1972] AC 1027 pointing to the undesirability of doing so. See for instance pp.1072, 1074, 1079, 1082, 1089, 1099, 1116, 1126. Indeed the House favoured an award of a single sum even where there is an element of exemplary damages, as otherwise there is a risk of double-counting. In the present case we are not concerned with exemplary damages. As to aggravated damages, these are not purely exemplary or punitive: they are classified as part of the compensatory damages awarded as a solatium to the plaintiff where the defendant's conduct has been outrageous, out of spite or otherwise, so as to aggravate the plaintiff's injury. It may well be that a jury should not be encouraged to split up their award; but their award is not necessarily invalid if they do so after being properly directed on the purpose of aggravated damages, nor has any point of that kind been taken for the present appellants. And in this case the splitting has the advantage of underlining that they must have taken an unfavourable view of the conduct of the first and second defendants.

118. The appeal of the publisher and the editor from the High Court judgment was heard by the Court of Appeal (Leong CJHC, Wong JA and Yeung J) in June 2001, their judgment being delivered by the Chief Judge on 27 June 2001. The Court held that there was sufficient evidence of malice to go to the jury in that there was much litigation between the rival press groups. "Clearly these matters are evidence of ill-will or spite between the defendants and the plaintiffs which is capable of establishing dishonesty on the part of the defendants to publish the article." But the decision of the Court of Final Appeal in Cheng, which had been given in the meantime, showed that the trial Judge's direction on malice was too wide, although he could not be criticised for following what was thought to be correct approach at the time of the trial. The Court of Appeal ordered a re-trial limited to the issues of fair comment and damages.

The Issues at the Trial

119. In contrast to the minimalist tactics pursued by the parties at the trial, the pleadings were voluminous. In considering the appeal it has been necessary to examine everything pleaded, but for the purposes of this judgment I think it sufficient to identify certain key points arising from the pleadings and contentions of the parties, taken together with the summing up and the documents placed before the jury.

120. The defamatory meaning pleaded by Ma was elaborately stated, but the essence of it was that he had abused his position as a director and officer of OPG in that he had used relevant insider information obtained in his privileged capacity to his own personal advantage. In enlarging on this theme the pleading alleged that the words published meant that he was in breach of his statutory duty under s.13 of the Securities (Insider Dealing) Ordinance, Cap. 395; s.9 was also specified. This was described as "behaviour considered generally to be unfair, greedy and dishonest". The pleader invoked common knowledge as to what insider trading means and alternatively that there would be many readers of the magazine who had knowledge of these matters.

121. The defendants did not seek to justify (i.e. maintain the truth of) the meaning pleaded by the second plaintiff. They did plead that the words did not mean and were incapable of meaning what was alleged by him. But - and this is a point of considerable importance - the defendants have never contended, certainly not in this Court and apparently not in the Courts below, that the meaning pleaded by the second plaintiff should not have been left to the jury. Their application at the close of the plaintiffs' case at the trial did not extend so far.

122. That alleged meaning was a prominent feature of the trial. The Judge did tell the jury that, if they were not satisfied of it, that was not the end of the matter: they should consider whether the article carried a less injurious meaning, broadly within the meaning set out in the statement of claim, which was still defamatory. Nevertheless, after reading a paragraph of the statement of claim, paragraph 6(c), which alleged the meaning that the second plaintiff was guilty of insider dealing within s.9 of the Ordinance, and after saying that this was one of the defamatory meanings contended for by the second plaintiff, the Judge told the jury that they should approach the case on the basis of a person who has knowledge of the provisions in the Ordinance. And he added "... you conclude whether a person with knowledge of the Ordinance would conclude that part of the article, in the context, would mean the defamatory meaning the second plaintiff contends in paragraph 6(c) or whether he would not understand it that way."

123. The Judge had also rightly told the jury that they should consider the ordinary meaning and the broad impression left by the article and not construe the words in the article like lawyers. In that connection he had observed, pointedly, "a meaning could be imputed directly or indirectly; sometimes meaning can be conveyed even if it is stated in a hypothetical form."

124. While some might say that the meaning pleaded by the second plaintiff was an extreme one - guilt of insider trading, not merely suspicion - I think that it was open to a reasonable jury to accept that meaning. This jury may have done so. If they did, their verdict as a whole may be seen to be sensible and consistent. For, there having been no attempt to justify that meaning , they would then inevitably have gone on to the defence of fair comment; and in accordance with the Judge's directions as to their ability to discriminate they may well have found malice proved against the publisher and the editor, but not against the printer.

125. A confusing factor is that the defendants pleaded (Re-amended Defence, paragraph 6) that in their natural and ordinary meaning the words sued on meant certain things, including "it is interesting to note that since Publisher Ma was an insider of "Oriental" and that he had been so aggressive in selling shares in "Oriental", one wonders if there was any special reason for him to do so." They averred that this meaning was true in substance and in fact. This appears to have been an attempt to establish and justify a lesser meaning. Whether or when a defendant can take such a course are thorny questions in contemporary defamation law: see Gatley, 9th ed. 27.7 and First Supplement. The defendants also pleaded, however, the meaning set out in their paragraph 6 as comment for the purposes of their defence of fair comment. In this Court their counsel, Mr Ronny Tong SC, was specific that only the defence of fair comment is relevant to the appeal. The same appears to have been his position in the Court of Appeal, which accounts for an observation in the Court of Appeal judgment that at the trial the defendants no longer pursued their defence of justification. What I have called a confusing factor can accordingly be ignored.

The Defence of Fair Comment

126. I will continue to use the traditional name of this defence, although as Lord Nicholls says it should be relabelled honest comment.

127. For the respondent Mr Michael Thomas SC argued that the jury are likely to have found that the defamation consisted of allegations of fact, so that the defence of fair comment would fail at the outset. Logically (but juries are not always logical) that would be difficult to reconcile with the dismissal of the claim against the printer. I will assume in favour of the appellants that the defamatory sting is to be treated as comment.

128. As to the facts relied on by the defendants as the basis of the comment, these reduce to the position of Ma in OPG, which is common ground, and the particulars contained in disclosure notices given by him in compliance with the Securities (Disclosure of Interests) Ordinance, Cap. 396. The notices and a South China Morning Post article reported sales over five days (not three occasions as stated in Next Magazine) between 11 and 18 May 1995. The total number of shares sold was over 42 million. The prices fluctuated, not always falling, but the last price ($3.175 per share) was lower than the starting price ($3.45). While the item sued on was thus not fully accurate in its details, a jury might well regard the inaccuracies as of minor significance.

129. Much more significant - indeed, I think, the dominating factor in this case - is the paucity of the factual information on which the publisher and the editor purported to base the defamatory imputation concerning insider trading. There is of course nothing wrong with a director selling all or some of his shares if he makes no improper use of his inside knowledge of the state of the company's affairs. Neither in the item sued on nor evidently in any other information which they possessed did these defendants have any foundation for any imputation or suggestion of that kind. What enquiries they made we do not know. People sell shares, whether or not the market is falling, for a variety of reasons. What was the second plaintiff's reason is unknown. The suggestion that it was inside information was, so far as the evidence goes, mere guesswork by those responsible for the wording of the item. There was no sufficient substratum of fact for the defamatory comment. A jury could well find that an honest man, however biased, would not have made such a comment. They could well conclude that it must have been made recklessly, with indifference to its truth or falsity. Supportive though the law is of freedom of speech, it does not protect irresponsible journalism of that sort.

130. As already mentioned, among his particulars of express malice the second plaintiff pleaded (Reply, paragraph (2)E) that the defendants had no honest belief in the correctness of the alleged comments. Another matter relied on was the litigation between the two groups of companies. A list of many High Court proceedings was given. Only two of these had been commenced before the publication sued on. The subsequent litigation still helps to some extent to support an inference that ill-will between these competitors probably existed before that publication: Turner v. M-G-M Pictures, Ltd [1950] 1 All ER 449, 455. Ill-will may constitute malice in the wider sense but in itself would not be sufficient evidence in this case of want of honest belief. What it can supply, however, is a motive for making defamatory imputations without that belief. That I see as a secondary point. The important point is the manifest lack of a factual foundation.

131. Mr Tong argued that before the issue of malice can go to the jury the trial Judge must be satisfied that there is admissible evidence which is more consistent with malice than its absence. He maintained that the Judge must personally weigh the evidence. If that were the right test, I think for the reasons given in paragraph 129 above that it would be satisfied in this case. I do not think, though, that it is quite the right test. Because the question does not arise on the view I take, I will not lengthen this judgment by discussing the point at any length. This is another corner of defamation law where the authorities are not uniform. Contrast Gatley, 8th ed. paragraphs 794 and 795 with Gatley, 9th ed. paragraph 34.18 and First Supplement. Preferring the view in the 9th edition, I think that the test is whether on the evidence as a whole a reasonable jury properly directed could find that lack of honest belief is proved. This substantially accords with the way in which May LJ, with the concurrence of Jonathan Parker LJ and Lord Woolf CJ, has stated the law in Alexander v. Arts Council of Wales [2001] 1 WLR 1840, 1854, after listing at p.1850 some judicial statements which appear to support Mr Tong's test and to give the Judge more of a weighing role.

132. Mr Thomas argued that it would be wrong and unfair to allow the first and second defendants to rely on the "new" law to have the jury's verdict set aside and yet prevent the second plaintiff from calling evidence and putting the case with such reformulations and modifications as he may be advised under the new law to another jury for decision. For the proposition that the parties are in no way fettered by the first trial in the conduct of the second, he cited Bobolas v. Economist Newspaper Ltd [1987] 1 WLR 1101, 1104-1105. For the propositions that, on the setting aside of a jury's verdict, the power to give judgment for the defendants ought to be very cautiously exercised and that regard should be had to whether further material might be produced in the event of a re-trial, he cited Skeate v. Slaters, Ltd [1914] 2 KB 429, 435, 442-443, 447. Those authorities do support the propositions.

133. I have preferred to approach this case by considering the merits, but as an additional and independent ground for upholding a new trial I would accept that submission by Mr Thomas. It is true that the second plaintiff did plead lack of honest belief among his particulars of malice and that, as the summing up made plain, this was prominently in issue at the trial. But on the wider definition of malice it was not the only issue in that regard. The presentation of the second plaintiff's case was not focused only on it. Natural justice dictates that there should be an opportunity to present a case based in relation to malice solely on the Cheng test. And, bearing in mind the peculiarly limited material placed before the jury, one cannot exclude the possibility of further evidence of lack of honest belief. Of course the first and second defendants would also be entitled to call further evidence.

134. There remains a question about the scope of a new trial. The issue of honest belief is so connected with the issue of the meaning which the item conveyed that, in my opinion, it would be unsatisfactory for the second jury not to be asked to decide both issues in a way unfettered by the first verdict. I would order a new trial extending, as in Cheng, to all issues, the parties to be at liberty to re-plead. Incidentally this would give the first and second defendants an opportunity of pleading, if so advised, a defence of qualified privilege on the principles of Reynolds (paragraph 113 supra), although I am not to be taken as forecasting success for such a defence.

135. For these reasons I would amend the order of the Court of Appeal by broadening the scope of a new trial, while otherwise upholding the order. As this would amount to allowance of the appeal in part but its failure on the main grounds argued, I would invite written submissions on costs.

136. Since writing the above, I have had the advantage of reading the draft judgments of Mr Justice Chan PJ and Mr Justice Litton NPJ. It may conduce to clarity if I state more fully the reasons why I respectfully differ from their views. Also there have been two recent decisions at high level in England calling for consideration and basically supporting, I think, the view that I take.

137. It is certainly regrettable that defamation law is so sophisticated and that this litigation has been so lengthy. But the state of the law is not the fault of Ma, nor should he be penalised for the prolongation since the trial, which has been caused by the decision in Cheng and the two successive appeals brought by his opponents.

138. In paragraph 127 above I assumed in favour of the appellants that the defamatory sting in the item is to be treated as comment. In the light of paragraph 32 of my brother Litton's draft, I have reconsidered the point. The jury could have regarded it as a simple imputation of fact and then, illogically but in natural sympathy for the printer, could have found against the publisher and the editor only, because the printer was not malicious. As Lord Bingham of Cornhill said in Grobbelaar (below), the jury is a judicial decision-maker; yet I believe that it can be dangerous to attribute to a jury an exact grasp of the complexities of defamation law. The foregoing hypothesis would not help the publisher and the editor, as the defence of fair comment would not then be available to them. It is more logical, though, to assume that the jury found an element of comment: in that respect the item is marginal, but imputations of abuse of a director's position can be partly a matter of opinion. I agree that the jury might have thought that the item imputed suspicion of insider trading rather than definite guilt; but, if so, the same basic difficulty would confront the publisher and the editor, who are jointly responsible, namely the absence of any reason for thinking that they honestly believed that there were grounds for suspicion. Indeed a very striking feature of the entire case is that no judge who has taken part in it has been able to discern any basis for the suggestion of insider trading. The award of aggravated damages shows that the jury may have been of the same mind. Obviously they at least thought it quite a bad case of malice in a wide sense.

139. Insofar as my colleagues find that the author has carefully avoided making any such imputation against Ma, or that it cannot be said that the first and second defendants could not honestly have believed in such an imputation, it seems to me that both the question of meaning and the question of belief are for the jury. At first sight a suggestion of insider trading against a director who has suddenly sold all his shares at falling prices might perhaps qualify for a defence of fair comment - or so a jury might think - but, if in the particular case the evidence as a whole provides no basis for the suggestion, it seems only right that the jury can infer that those responsible had none.

140. Counsel for the appellants has properly drawn attention to Grobbelaar v. News Group Newspapers Ltd [2002] 1 WLR 3024, HL, particularly paragraphs 7, 57 and 67. Those passages emphasise that the drawing of proper inferences from a jury's decision is inherent in the process of review and that it should not lightly be inferred that a jury has been perverse. So, in this case, inferences may be drawn from the jury's decision which indicate that it was by no means perverse.

141. On that last point it is important to look at their verdict in the light of the summing up. There were only two passages directed to the question of possible discrimination between the defendants. The first was concerned with damages and was as follows -

"Now, in this case we have altogether three defendants. However, one sum - one award should be made against all three. Now, I should tell you that counsel has very kindly prepared a table summarising awards made in nine other cases. I shall be telling you the nine cases later on.

But can I now move on to the question of aggravated damages. Now, this may be awarded taking into account the motive and the conduct of the defendants in aggravating the injury to the 2nd plaintiff's feelings. For example, things like failure to apologise or in persisting in a defence, things like that. Now, again, although there are three defendants, only one award should be made against all of them. Now, if the jury thinks that there is a difference between the aggravated motive or conduct of the three defendants, for example, I think the 3rd defendant is the printer, so you may or may not think that there is a difference between the motive or the conduct of the three defendants. If you should find that there is a difference, the jury should award the lowest figure for aggravated damages for all the three defendants even if the jury should think that some other defendant or defendants may warrant a higher award."

On the assumption that all three defendants were to be found liable, that was correct.

142. The second passage was immediately before the end of the main summing up -

"Now, the last matter is also on malice and this is that when you come to consider the question of malice you should treat the three defendants separately. So you may conclude that so far as one of the three defendants, or two of the three defendants, you may conclude that there is malice; maybe for the other one, you may conclude that there is not."

143. That second passage was brief. Its brevity is not to be criticised, in a summing up that was inevitably complicated. But it was a plain intimation and would have left the jury with the understanding that when considering the defence of fair comment they were entitled to discriminate between the defendants on the issue of malice. Because of that ability they may have been content to treat the defamatory sting as comment. At a new trial, against the publisher and the editor only, the jury would be entitled and probably more inclined to treat it as an imputation of fact, not comment. This underlines the justice of ordering such a new trial.

144. Last, mention must be made of the judgment of the Privy Council, delivered by Lord Nicholls, in Bonnick v. Morris [2002] 3 WLR 820, an appeal from Jamaica in a libel action against a journalist (who had written the article), the publisher and the editor. The only two issues before their Lordships were meaning and qualified privilege. The action was tried by a Judge alone. On meaning the Board accepted the trial Judge's finding of a somewhat extreme defamatory imputation, which was not justified. That part of the judgment is entirely orthodox. It includes references to the necessity of reading the article as a whole and eschewing over-elaborate analysis and too literal an approach. It remarks that an appellate court should not disturb the trial Judge's ruling unless satisfied that he was wrong. A fortiori this must apply to the verdict of a jury.

145. Where the decision may break new ground is with reference to Reynolds qualified privilege, available for publication to the world in general and mentioned in paragraphs 113 and 134 above. The Privy Council reaffirmed the artificial "single meaning" rule in relation to whether the words sued on are defamatory. As to qualified privilege in this field, however, it was stressed that the question is whether the newspaper acted responsibly. Here other possible and lesser meanings may be considered. Evidence of what the journalist meant was treated as of at least some secondary relevance. It was recognised that ambiguity should not be a screen behind which a journalist is "willing to wound, and yet afraid to strike". But, on a review of all the circumstances and contents of that particular publication, it was found (albeit near the borderline) to be a piece of responsible journalism to which the defence of qualified privilege was available.

146. Although Lord Nicholls did not need to and did not in fact discuss the question, it may well be that the strict "single meaning" rule is equally inapplicable to the defence of fair (i.e. honest) comment. So to hold would be consistent with the freedom of the press which, subject to essential safeguards, the modern law supports. Thus, in a case of ambiguity, the writer of an article could be heard to give evidence of what he or she actually meant and of his or her honest belief. In the present case, though, there was no evidence on these lines. I repeat that on a new trial both honest comment and Reynolds privilege could be advanced as defences, while repeating as well that one cannot predict the evidence or its effect.

147. In the end, as I see it and as a jury could well see it, on such evidence as there has been this case can be encapsulated in a single sentence. Why insert the reference to "insider" unless to sow in the mind of the reader the suggestion of insider trading?

Mr Justice Bokhary PJ:

148. By a majority of three to two, the appeal is allowed to dismiss the respondent's claim against the appellants and make an order nisi awarding them costs against him here and in the courts below.