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【案例名称】
YU KWONG CHIU AND ANOTHER v. CONSOLIDATED NEWSPAPERS LTD
【审理法院】 锟竭等凤拷院 / High Court
【案件类别】 锟斤拷院锟斤拷锟斤拷锟斤拷锟斤拷 / Referral Case
【判决日期】 1987/5/28
     
 
【正文】
 
 
YU KWONG CHIU AND ANOTHER v. CONSOLIDATED NEWSPAPERS LTD

HCA000258/1986

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. A258 OF 1986

____________

 

BETWEEN

YU KWONG CHIU

MA YEE FUN & LAM CHI KWONG

 

and

 

CONSOLIDATED NEWSPAPERS LIMITED

1st Plaintiff

2nd Plaintiff

 

 

 

Defendant

___________

Coram: Mortimer, J.

Dates of hearing: 20th-22nd, 25th-27th May, 1987

Date of judgment: 28th May, 1987

 

__________

JUDGMENT

__________

 

1. The three plaintiffs bring an action for defamation against the defendant in respect of publications of district newspapers. There were four such newspapers published: the Wanchai Star on the 20th July, 1985, the Tsuen Wan Star on the 22nd, the Wong Tai Sin Star on the 23rd and the Eastern District Star on the 24th of July

2. These newspapers have a total circulation of 28,000. Their names indicate that they have considerable geographical coverage within the territory. They were in tabloid form, each had eight pages. The articles complained of appeared on the main centre spread covering two pages printed as one. This centre spread was devoted entirely to an unrestrained attack upon three religious organizations in Hong Kong. The relevant one was described as translated "The Church XXX Hong Kong"; to indicate six Chinese characters three of which appeared as crosses in what I find was a transparent attempt to disguise the identity of one of the oranizations under attack.

3. The plaintiffs contend that the description "The Church XXX Hong Kong" refers and can only refer in the context to the Church of God in Hong Kong. This is a religious organization founded by the 1st plaintiff in 1968. It grew from small beginnings. He had been a four-year theology student. He gave up his course during the second year because he felt it was not helping him and he had a strong desire to help people. He became a male nurse. It was a job in which he felt he could help people and spread the Gospel of Christ.

4. In 1968 he had a spiritual revelation he felt called to give up his job and spend his time preaching the Gospel. With help he founded the Church of God in Hong Kong. He began in Shatin, later moved to Lam Tin and by 1975 the headquarters of the church was in Kwai Chung. The church grew and now 19 years on there are twenty meeting places in the territory and outer islands. The church has also spread abroad, but I am not aware of the details.

5. The church is governed by elders in accordance with a written constitution. The number of elders has varied over the years between about 8 and 12. Each of the plaintiffs is an elder; the 1st plaintiff the founder and driving force, the other two also devoted at all material times all their time to the church.

6. The elders run the church. They are responsible for all major decisions; they are responsible for administration; for finance; for the organization; for doctrine and for preaching. They also provide guidance not only on spiritual but on other matters. The elders are entirely responsible for the nature of and for the activities of the church.

7. The organization of the church owes something to that of the Salvation Army. As I have said the leadership is with the elders, thereafter the church is divided into groups called "armies", each 30 or 40 people with a leader called a deacon, in Chinese the translation means administrator. Each army is divided into sub-groups of about 10 and that sub-group will take the name of the factory, school or organization to which most of the members belong. The deacons report to and are responsible to the elders.

8. For many years the church was not registered under the Societies Ordinance. It became registered as the Church of God in Hong Kong on the 7th June 1984. There is an associated organization, the Light and Love Home, that also is registered and was registered some time in 1983. That is an organization which involves itself very broadly in a number of aspects of social welfare. It has a headquarters but its activities are chiefly carried out at the various meeting places of the church.

9. The publication of which the plaintiffs complain, or rather a copy of it, is in evidence. In order to save time I annex to my judgment a photostat of that centre spread together with the schedule that appears annexed to the Statement of Claim which is a translation of numbered articles in the publication. I do that so anyone who may wish to consider this judgment at any time in the future may see the subject of the action.

10. The defendants admit publication of the articles, they deny that the words referred to or were understood to refer to the plaintiffs. There are two aspects of this: (a) they deny and put the plaintiff to the proof that the Church XXX Hong Kong in its Chinese characters refers to the Church of God in Hong Kong; (b) they say that even if it did they deny that the articles referred or could be understood to refer to the plaintiffs personally.

11. Paragraph 8 of the Statement of Claim pleads the plaintiffs' allegation in relation to the words as to what their natural and ordinary meaning was and what they were understood to mean. And at the outset of the case the defendants admitted those meanings save for those set out in paragraph 8 sub-paragraph 4, sub-paragraph 9 and sub-paragraph 13.

12. The plaintiffs' allegation is therefore (leaving aside those paragraphs) that the natural and ordinary meaning of the words used meant and were understood to mean: (1) that the plaintiffs were preaching evil and heresy; (2) that by their preachings the plaintiffs persuaded, induced, caused or influenced people to commit suicide; (3) that the plaintiffs set up traps to capture converts and inflict deep harm on society; (5) that the plaintiffs' teachings overcame the free will of people by intimidation; (6) that by their preachings the plaintiffs instigated students to go against school authorities, children to turn hostile against their parents; (7)that the 1st plaintiff constantly encouraged members to run away from home; (8) that the 1st plaintiff obtained money by deception or intimidation from his followers and misappropriated the money for his private gain; (10) that the plaintiffs manipulated the thoughts and controlled the acts of their converts, stripping them of their money and demoralizing them by wearing out and diminishing their intellect and judgment, reducing them to a state with psychological disorder and feelings of guilt; (11) that the plaintiffs used improper psychological coercion techniques to recruit and brainwash converts and used them as tools in advancing heretical propaganda; (12) that the plaintiff's activities sever ties of family, friends and relatives and are parasitic on society.

13. Then the defendants say that if the words did refer to the plaintiffs, by a notice to which I will refer, they alleged that the plaintiffs had little or no reputation which merits vindication.

14. I turn to the issues on liability. The first issue is whether the six characters represented by "The Church XXX Hong Kong" refer to the Church of God in Hong Kong. In my judgment the time spent by the defendants on this issue has been a waste of the court's time, the author of course knows and the defendants know to which church the characters and Xs refer. The detail in article 4 in my judgment refers and could only refer to the Church of God in Hong Kong. All the particulars pleaded in paragraph 7 of the Statement of Claim upon which the plaintiffs rely for that identification have been made out, others have been made out which are not pleaded.

15. I turn briefly to the article. The article alleges that the church was founded in 1968; the Church of God in Hong Kong was founded in 1968. The article alleges that its founder was a Hong Kong resident; the 1st plaintiff who founded the church is a Hong Kong resident. There is reference in the article to teachings urging members to commit suicide; that was an allegation that had previously been made against this church. The article alleges that the church runs recreation activities centres and tutorial classes; this church does so.

16. It alleges that in the initial stage of its founding it organized bile classes in Shatin; this church began in Shatin. The article alleges it moved later to Lam Tin; so did this church. It alleges that preaching was done in squatter areas; preaching was done by this church in squatter areas.

17. It alleges that in 1975 the church took root in Kwai Chung; in 1975 this church's headquarters did move to Kwai Chung. It alleges that the founder was invited to give religious talks in a school; so he was. There is a description in the article of the church suffering a setback in Tuen Mun in 1983 when it opened a recreational activities centre in a village and there is a description of the church being driven out by villagers; there was such an incident in 1983.

18. The article alleges that activities took place in a list of places, that list could refer to this church save for one place, Yau Yat Chuen. Later there is a description of the organization of the church describing it as closely-knit with the founding elder in the highest level and then describing army-divisions and sub-groups which, of course, could refer to this church. There is a photograph in article 2 of the publication which shows among other things an earlier article which had been published in the South China Morning Post and there is there clearly to be seen - a photograph of one of the meeting places of this church.

19. The defendants were not able to challenge (and did not seek to do so) a single on of those facts and they called no evidence to say to whom they were referring in this article using the Chinese characters with the 3 Xs -- together with the 3 Xs. The best they were able to do was to cross-examine to the effect that there could be found in the telephone directory several other organizations or churches which had 6 Chinese characters of which the two at the beginning and one at the end were the same as the Church of God in Hong Kong so that "X X X", if substituted, would be the same for those organizations.

20. There is no doubt whatsoever that the articles when they describe "the Church X X X Hong Kong" are referring to the Church of God in Hong Kong. The defendants knew it, they have known it all along; the author knew it and they have sought here to put the plaintiffs to the proof of that matter to no possible purpose.

21. The neat issue is whether these articles and the words used were published of and concerning each individual plaintiff. Well, this is one of those cases wthere the allegations are chiefly made against an organization or sometimes called a class and the question is: Whether the words were published of and concerning each individual plaintiff? If they were not then the action falls to the ground at once.

22. So far as the 1st plaintiff is concerned he is referred to, not by name but by office in the article which I have read; the 1st plaintiff being the founder and an elder of the church. The references to the 1st plaintiff are clear beyond doubt.

23. The facts are that the church was and is run by elders who administered it and took the decisions and did all the other activities, to which I have already referred, including controlling and running the finances.  All the members of the church know this; the families of members are likely to know it; anyone reading the article would know that the church was run by elders, and it is to be noted that in article 4 there is reference in the penultimate paragraph to "the cult's elder" in the singular in the translation and to "all the monies in the hands of the elder". There is another translation before the court submitted by the defendants in their bundle of documents and the translation there is in the plural. That translation in the context of the whole article is to be preferred and that is the way in which I believe those who read the article would understand it.

24. The sting of the words used, save for the matters to which I have referred, is admitted. It is that here is an organization which purports to be working for good and spreading the Gospel whereas in fact the organization is evil and having effects which are evil, immoral and criminal, in certain instances, upon families and the community. I have no doubt that, first, the words are capable of referring to each of the plaintiffs and I have, secondly, no doubt that they were published of and concerning the individual plaintiffs. They are each members of a small body controlling the church; they are referred to in the article and even if they were not specifically referred to in the article as elder or elders the allegation of the evil activities must refer and to be understood to refer to those who control the organization

25. I am satisfied these plaintiffs were pointed to by the words complained of. They would be understood by reasonable people to refer to the persons in charge and in control who were the elders. So, so far as that issue is concerned, I find it in favour of the plaintiffs.

26. I turn now to deal with the issues which remain under paragraph 8 of the Statement of Claim; the first being under paragraph 8(4). The allegation is that the words in the publication meant and were understood to mean that the 1st plaintiff was a self-seeking, unscrupulous opportunist -- a "typical" Hong Kong resident.

27. Of the passage in article 4 to which this refers there are two translations. It is helpful to me to see both. The two translations are "its founder was a 'typical' Hong Kong resident" and "its founder was a 'local' Hong Kong resident".    Now the meaning of words in these circumstances can only be understood by the context in which they are used, sometimes assisted by the manner in which they are printed. The use of quotation marks in the original text is significant and I have no doubt that those words not only meant and not only were understood to mean, but also were intended to mean, something pejorative against the founder, the 1st plaintiff. I personally would have preferred the word "materialistic" as the meaning although I recognize the appalling difficulties which I face in expressing such an opinion. But "self-seeking" and "unscrupulous" are, I believe, also meanings of this word as it was used. It was meant to indicate that here was a man founding a church who, far from being selfless and non-materialistic, was selfish or self-seeking, materialistic and unscrupulous.

28. I find the issue, therefore, under paragraph 8(4) in the plaintiff's favour.

29. Under paragraph 8(9) the plaintiffs alleged the meaning of the words and the way they were understood, to be "that by their preachings the plaintiffs promoted or encouraged prostitution, promiscuity, child sex".

30. The basis of the original, is set out in the Statement of Claim under paragraph 5(4) and under paragraph 6. For this one has to turn to articles at 7 and 8 in the publication.

31. First of all, paragraph 7. Paragraph 7 deals with two "cults", as they are called, the Children of God and Church X X X Hong Kong. They are dealt with together in one short article, dealing first with them both together and then dealing with them relatively; first one and then the other. It is the title which is extremely prominent on the page which is important.

32. In English the headline or title reads: "ADVOCATING PROSTITUTION, INCEST AND CHILD SEX. THE RELIGIOUS TEACHINGS CONTAIN INTIMIDATING DOCTRINES. HERETICAL RELIGIOUS CULTS INFILTRATE VOLUNTARY AGENCIES TO RECRUIT MEMBERS". Under that title the article says, "Two dormant heretical religious cults have resumed their activities recently. One of them even infiltrated into voluntary organizations to gain converts among teenagers. The two cults are 'the Children of God' and 'Church X X X Hong Kong'" , then it goes on to deal with them separately after that. But this is an article which tars the two with the same brush in the headline and anyone reading that headline or title, would understand it immediately to refer to the two. I bear in mind that on a careful construction of the article one might come to the conclusion that some of the headline did not refer specifically to the Church of God in Hong Kong, but that is not the test. An ordinary reasonable person reading that would understand that the two organizations were tarred by the same brush.

33. In the body of Article 8, only the Children of God is dealt with. In the author's words "one cult". But again the headline refers to "cults"; "CONVERTS OF HERETICAL CULTS BECOME WALKING CORPSES OF RELIGION. TREATING 'SEX' AS 'LOVE': GOING AGAINST ETHICS".

34. I am satisfied that looking at this whole spread a reasonable person would see these headlines and think that these organizations were being referred to; they are again being tarred by the same brush.

35. There is an additional matter which adds emphasis.  It is the juxtaposition in article 2 (the photograph of earlier articles and magazines) where a photograph and article relating to the Church of God in Hong Kong is juxtaposed to a lady with scanty clothing. So, whereas I do not find that the body of article 8 refers to and could be understood to refer to the Church of God in Hong Kong, the title of the article, expressed as it was, together with the other matters in the spread; I am satisfied that those matters do refer and would be understood to refer to this church.

36. The result is that I find the issue under 8(9) in favour of the plaintiff except for one word. That is the word "promiscuity". I am satisfied that the articles meant so far as this church was concerned that by their preachings the plaintiffs promoted, encouraged prostitution and child sex. Incidentally, I am satisfied that the word "incest" appearing in the headline in 7 would refer, but that is not alleged in the Statement of Claim.

37. Turning to paragraph 8(13). It is alleged that the meaning of the words was, "that the plaintiffs' preachings are an attack on society's good old established religious tradition." For that one must look at the original, articles 13 and 15. It is quite clear that both those articles refer and must have been understood to refer to the three organizations mainly referred to in the spread of articles.

38. In article 13 it says, "But these traditional and orthodox religious are facing a great attack. Protestant and Catholic religions in particular have been named in the challenge." And so far as article 15 is concerned there are photographs to represent various and established traditional and orthodox religions including both the Christian and Muslim; the headline reads, "ORTHODOX RELIGIONS ARE BEING ATTACKED. The church in the picture represents a part of traditional and orthodox religion, but in view of the activities of heretical cults these religions are facing a great attack."

39. I am satisfied that the plaintiffs make out their allegation under 8(13) although it is not as serious an allegation as many of the others.

40. It is convenient now for me to turn to the defence which is being advanced. I have rejected the main defence on liability to which I have already referred, but the defendants raise further defences. They raise defences as set out in their notice, a recent one of 11th May, 1987, in mitigation of damage. Also, in addition, they sought to mitigate the damages in the case by alleging through cross-examination only that each of the plaintiffs did not have a good reputation to be vindicated.

41. The approach of the defendants has been to call no evidence, to make no apology and to put the plaintiffs to the proof. Therefore, without calling evidence they sought to show in cross-examination that the plaintiffs did not have a good reputation worth vindicating.

42. As to the cross-examination it was suggested that by July, 1985, the time of these articles, the plaintiffs' reputation had already been tarnished. Tarnished, first, by other publications, newspapers and magazines which had attacked the church. [It is to be noted that the defendants in their cross-examination made the connection (by implication, if not expressly) between attacks on the church and reference to the plaintiffs individually] and, secondly, had been tarnished by lies and rumours spread in consequence of those earlier publications. The publications included those shown in the centre spread complained of, article 2, and even articles published by the defendants themselves in the Tuen Mun Star twice in 1983.

43. Now as to this evidence, rumours as such are not admissible in evidence to demonstrate had reputation nor was there any attempt to introduce the content of such rumours. The previous articles, those shown in the papers and those previously published by others and by the defendants, were clearly attacks of a generally similar nature; that is the inference from what the plaintiffs said about them.

44. The evidence is that those rumours which were being spread and the previous articles were lies and wholly untrue allegations against the church (and therefore the plaintiffs) without any kind of justification or excuse. The defendants do not suggest otherwise; they seek to say that because the plaintiffs' reputation had been previously and unjustly tarnished by other articles including their own that the plaintiffs had less reputation to be vindicated as a result of any damage to reputation or feelings caused by any -- defamation in the present action.

45. Now this is an argument which lacks justice, it lacks merit and, I believe, it lacks common sense. More than that, it is not an argument which can be supported in law. A similar situation arose in Associated Newspapers Ltd. v. Dingle [1964] A.C. 371. At page 396 Lord Radcliffe said:

"It is, I think, a well understood rule of law that a defendant who has not justified his defamatory statements cannot mitigate the damages for which he is liable by producing evidence of other publications to the same effect as his; and it seems to me that it would involve an impossible conflict between this rule and the suggested proof of tarnished reputation to admit into consideration other contemporary publications about the same incident."

Further on page 398, he said:

"It is true that the respondent himself made one or two answers under cross-examination that amounted to saying that the effect of the publication of the report was for the time being to render him a marked man and to subject him to much personal embarrassment. I expect that that was so: but such answers do not seem to me to amount to any evidence of a tarnished reputation in the sense that that phrase can be relevant to an assessment of damages."

With respect, I entirely agree with that approach. It is applicable here. Of course, there has been no evidence, because it is not admissible, of the content of the articles themselves or the content of the rumours, and no relevant evidence of bad reputation of the plaintiffs had been called. The most that has happened in this case is that the plaintiffs have conceded that they were attacked by articles and that those articles did affect their reputation; but in my judgment it would be quite unjust and contrary to law to allow that to affect the assessment of damages in this case, and I find, following Lord Radcliffe's speech, that evidence is not relevant.

46. The defendants next sought to say that the 1st plaintiff and others taught in such a manner as to condemn the Roman Catholic Church and the Anglican Church. The basis being a reported statement alleged to have been made by the 1st plaintiff in an article in the South China Morning Post on the 24th August, 1981. The statements in that article purport to be set out in the notice to which I have referred.

47. This cross-examination came near to an attempt to justify paragraph 8(13) without actually pleading justification. Before a jury I would have excluded it, but I thought it right that the defendants should, in a trial by judge alone, be allowed to explore the point. In fact the 1st plaintiff denied that he had used the words which are set out in the notice or the words set out in the last three paragraphs of the article on page 35 of the defendants' bundle. And so the basis of the submission fell to the ground because as I have said the defendants did not seek to call evidence to establish that he had used those words. If the defendants had established the statements made by the 1st plaintiff they would have asked me to infer from them that the plaintiffs, the 1st plaintiff in particular, had a bad reputation. I have serious doubts whether such an inference would have been open to me but, as I say, the matter does not arise as the statements alleged were not established in evidence.

48. On this matter as on others I found the 1st plaintiff totally credible. He was entirely consistent in his doctrinal statements and they were entirely rational.

49. Having failed thus far the defendants changed their attack. They submitted that I should infer bad reputation against the plaintiffs because they had failed to take, and admitted they had failed to take, any steps to seek to correct the erroneous report in the South China Morning Post.

50. In my judgment the plaintiffs are under no such obligation and I entirely reject this submission. There are many proper reasons why a man may not seek to correct errors made in a newspaper report even if he thought that he could succeed in correcting them.

51. The defendants were indefatigable in their attempts to avoid compensating the plaintiffs for the wrong that they may have committed for they then submit that under paragraph 2 of the notice the plaintiffs should not be found to have a reputation which calls for vindication because from the time of its formation in 1968 to the 7th June, 1984 the Church of God in Hong Kong was an unlawful society within the meaning of the Societies Ordinance; the point being that until the 7th June the Church had not been registered under that ordinance.

52. In my judgment the fact that the church was not registered under the Societies Ordinance is a matter which is collateral to these proceedings and irrelevant to reputation. Even if I were wrong, at the time of these proceedings and at the time of this article the church was registered.

53. Under section 2(b) of the notice the defendants point out that the 1st plaintiff is neither an ordained minister nor a priest and they allege that he left in the first year of a 4-year theology course. In fact he left in the second year but the point made is that he should not be entitled to the same level of damages as an ordained minister. I accept that this is a matter which I have to consider and I will do so in due course.

54. Under paragraph 3 the defendants allege that even if there was reference to the plaintiffs in the articles very few people would have taken the articles complained of as referring to any of the plaintiffs. The number of people who would have taken the articles to refer to the plaintiffs is a consideration which it is necessary for me to take into account in the assessment of damages. See Morgan v. Odhams Press Ltd. [1971] 1 W.L.R. 1239 a case in which there were very few people who would have taken the articles complained of as referring to the plaintiffs, a few more than six, but not many more.

55. Under paragraph 4 of the notice the defendants seek to rely upon a notice of rectification, an apology published in the Wah Kin Yat Po on the 6th of February, 1987. This is a bizarre plea. The facts are these; on the 27th July, 1986, almost exactly a year after the articles complained of in this action, the Wah Kiu Yat Po published an article attacking the church. It was a serious attack and I am not going to set it out. The translation appears on page 44 and a photostat is on page 43 of the plaintiffs' bundle.

56. Consequent upon that the plaintiffs took action and received an apology on the 7th August; 10 or 11 days later. The defendants in this case seek to say that where an apology has been published in another well-known newspaper with a large circulation that they can rely upon that as showing that any damage that they may have done to the plaintiffs' reputation is put right by that apology in another publication.

57. In spite of the fact that I consider it to be a bizarre plea I do not reject it out of hand. There could be circumstances where the publication of the truth was so widespread and so compelling that harm previously done by a totally unrelated article some time before and about which there is no apology could be a mitigation. The circumstances, however, would be most unusual it would require the most compelling evidence. There is none here. The Wah Kiu Yat Po having seriously defamed the plaintiffs' church made an immediate, full and entirely honourable apology; they paid the plaintiffs' costs and later in order to underline their remorse published a true article about the church. On the evidence all that I would be entitled to infer from those facts is that such wrong as had been done by the publication in the Wah Kiu Yat Po had been put right or had been at least mitigated by the following apology in the same publication. There is no space for the defendants to cringe in that suit of armour which the Wah Kiu Yat Po donned to protect itself and which the law provides. There was a suit of armour for the defendants to don in this case had they sought to do so. In the circumstances of this case I do not find that any injury to the plaintiffs as a result of the article complained of was removed or lessened in any way by the apology, complete and honourable though it was, in the Wah Kiu Yat Po.

58. Finally in the notice the defendants ask that there should be taken into account the fact that the newspapers in which the articles appeared were distributed free of charge. The point of this is; I am asked to infer that there was no profit motive in publishing the article on the grounds that the newspapers were distributed free of charge as a public benefaction or service.

59. I can make no such inference particularly in the absence of evidence from the defendants who know well enough (had they sought to say so) whether these newspapers involve any profit or not. There are advertisements in the newspapers; it is a proper inference that those advertisements had been paid for. It certainly would not be a proper inference that these newspapers had no profit motive. I leave the matter neutrally like that, I hope, in fairness to the defendants, for as I indicated in the course of submissions in other parts of the world freely distributed newspapers are extremely profitable because of the advertising revenue which they generate.

60. The defence advanced in my judgment has been little better than a sham in this case. The points which I accept as valid could have been made as well if not better and with greater credibility and force on an assessment of damages after an admission of liability. Defendants are always and absolutely entitled to put a plaintiff to the proof of his case and to seek to say that he has no reputation worth protecting or that his reputation is tarnished or damaged and was at the time of the publication. But if the defence is a worthless one it involves the risk of further injury to the plaintiffs' reputation and feelings for which at the end of the day he may be entitled to be compensated. In particular, even if this does not involve further injury to the plaintiffs' reputation in this case it involves further injury to the plaintiffs' feelings to be brought to court and to be cross-examined on the basis that their reputations are tarnished.

61. The result is that I find that each of these plaintiffs has been seriously defamed by the articles complained of and I now must turn to the most difficult task in this case; the assessment of damages.

62. In this, I turn first to the plaintiffs. Each of the plaintiffs I found to be an impressive witness; each was careful, completely honest and restrained, not in any way vindictive for the injury that had been done to him. In so far as I was able to judge I thought each of them sincere in his beliefs, dedicated to his church and calling. They were tolerant of the teachings of others where they were in disagreement with them and when they spoke of their own beliefs they were consistent. They each individually worked full-time for the church of which they were part of the controlling body.

63. I formed the view that they were men of God, sincere in belief and, outside the religious context, they were working to do good to their fellow men and to the communities in which they are active. They were all upright and of excellent character and reputation. They each enjoy a high standing in their church. They are, as we know, elders, 3 of a small body of about 11 in a church which now has (in this territory) some 20 meeting places. I remind myself that they did not have 20 meeting places at the time of the defamation and that the church has continued to grow in spite of it.

64. At the time of the publication there were some 1,800 regular members of the church under the elders' guidance and teaching. Their status in this community and the church communities is high. They are not ordained ministers, for in this church there are no such. That is a matter which I must bear in mind in the sense that a man who is ordained in other churches will hold some kind of professional qualification whereas these plaintiffs have a calling and have a life's work, but no such professional qualification. Their standing remains, however, high.

65. I turn to the defamation. The defamation is one of a most serious nature. It is wide ranging. It is particularly serious because the plaintiffs are sincere believers who work for good and give guidance and help to others and their objectives are beneficial to the community. They are said to be far from good men and sincere in their beliefs. They are said to be hypocritical. They are said in effect to be pretending that they work for good and that they have proper beliefs, and that in fact they are evil men running an evil organization, materialistic, teaching sexual immorality, encouraging suicide and rebellion both against parents and school, coercing their members, brainwashing them and obtaining money from them by deception; and that in consequence upon that they are said to be attacking society and established religion.

66. It is an attack which was intended to, and I have no doubt did, poison the minds of those who read it against the plaintiffs. It was a calculated attack. It was a persistent attack; it has been persisted in up to these proceedings and in its whole context it is a disgraceful attack.

67. I must consider the mode and extent of the publication. Territorially, it has wide circulation. In numbers, 78,000 copies were printed. The position of the articles was not on the front page, that is of some importance because it was not when folded obvious to anyone that it contained such an article; people would not be attracted by the front page of the newspaper to pick it up and take it because of something that they realized was inside. There was no mention on the front page that the centre spread dealing with these religious organizations was there. On the other hand this centre spread is the main article in this publication, it is what this publication was about. It was distributed free from libraries and district board offices, that is important. Those who took it and read it would consider that a publication so distributed would be a responsible one and one which was careful for accuracy whereas in fact it was neither. And the fact that it came from a library and district board office would mean that it would be more likely to fall into the hands of those were more intelligent and it was distributed so as to give it rather more credence and standing.

68. The layout of the page was obviously carefully thought about. The heading on the right hand side reads: "HERETICAL RELIGIOUS CULTS SPRINGING UP IN HONG KONG", and then to the left of that, "BRINGING YOU TO A BEAUTIFUL WORLD?" and above that there is a black bat. I mention this in order to exclude it from my consideration. Obviously, the author or printer did not put a black bat there by any kind of error, he chose to do so for some reason. However, I understand, and to this I am indebted (as always) to counsel, that the connotations which a black bat may have to the western mind of mysterious evil, would not have the same connotations to a Chinese person reading the article. Therefore, I exclude it and I think I should mention it as being not part of my consideration. However, the thought that has gone into the article can be seen easily from the way in which earlier articles are photographed in section 2 and the magazines are set out there with the photograph of the lady and the meeting place of the church with photographs of other churches in the left hand bottom corner of the page. There was no attempt to deal carefully and individually with each organization, and it seems to me that there was clear intent to tar all these organizations with the same brush in rather a confusing way. It was deliberate and those who published the article, or the author, must have either known that it was false or were quite reckless as to whether it was true or false.

69. The number who read the article who would know that elders ran this church and would understand the article to refer to them was said by the defendants to be small. I disagree. There were 18,000 members of this church, each one of those who read the article would well understand that it referred to the plaintiffs in this case. The church is widespread and was at the time and many readers would : know that this church had elders and that all those who knew the plaintiffs personally would know that they were elders of the church and working full-time in it. Families of members would know. So I disagree that the number of people who would : know that this article referred to the plaintiffs would be small. I think it would be large on the evidence that I have heard.

70. I turn to consider the effect of this defamation upon the plaintiffs themselves. I approach this evidence with some caution because of the difficulty in relating exactly their feelings to this particular article.

71. The 1st plaintiff in dealing with what had been said in newspapers and media said that, "It brought about misunderstandings about us from many other Christians and churches. Even some of those who knew us adopted a different attitude to me. The churches had meetings and discussions, our followers suffered tremendously." And I interpellate, he must have suffered greatly himself as a result. He said, "We were singled out, we became an anathema for a church and isolated from other Christians who kept away from us."

72. The 2nd plaintiff said that when the church was attacked in these articles he reacted as an elder; he was put under more pressure; he had to spend more time explaining to his followers, especially those who had just joined, who did not know him well and he feared that followers might leave; and how he felt threatened when people said that they obtained money by deception because he participated in the financial matters of the church; and he explained the force of allegations about obtaining money by deception against the elders.

73. The 3rd plaintiff in cross-examination about earlier articles, "1981 to 1985 we were slightly affected by rumours and suspicion, but in 1985 we were greatly affected. Even district board members used to hold discussions in relation to religious cults in 1986." That is after this article. I bear in mind the possibility that the article in the Wah Kiu Yat Po had some effect, but that must have been minimal having regard to the speedy apology.

74. So I accept that these plaintiffs were deeply hurt by what was published about them. They must have been affected in the work that they were seeking to do. They were not professional men and not ordained, but this defamation does impinge upon their lifelong work and upon their calling.

75. I turn now to the defence for this is a matter which it is relevant to consider in the assessment of damages. The defence, as I have said, was a hopeless defence. It was based upon cross-examination and the facts were not challenged. It had not a remote chance of success. It included attacks, or further attacks, on the reputation of the plaintiffs. This, of course, is not as serious as an attempt to justify a defamation that has been made, but the attack on reputation that took place in the course of the trial has the effect of putting the plaintiffs through the trauma of a trial and cross-examination in which they are seeking to vindicate their reputations and to seek redress. When they came to give evidence they found that it was being suggested to them that they have nothing to protect.

76. There has been no withdrawal of the allegations and no apology although these defendants asked for an apology ...

Mr. ISMAIL: Not the defendants asked for an apology.

COURT: I am sorry. I am obliged. The plaintiffs asked for an apology in January 1986; a translation of the letter appears at page 296 of the plaintiffs' bundle. So the effect is that this was a libel which was persisted in up to, during and through the trial. There was no apology, no expression of remorse for the damage that was done. It amounts to a rubbing of salt in the wounds that had been opened.

77. It is submitted by the plaintiffs that all this aggravates the damage done. I prefer not to use the word "aggravate", all these matters have to be considered, and the plaintiffs have to be compensated and vindicated on matters as they now stand; a defamation which has persisted up to now; a further attack upon their reputation which was equally unjust and no mitigation' of the effect of the libel by means of apology. And I take into account that the defendants are entitled to run such defence as they wish and that is why I prefer not to use the word "aggravate" because this is not any kind of punishment, it is simply compensation for the circumstances as they now are.

78. There is one matter which I must deal with. The plaintiff called Miss Chan, Miss Mak and Mr. Ng. They were called to give evidence of the effect of the defamation upon themselves personally so far as Miss Chan and Miss Mak were concerned; and upon the Light and Love Home and the clinic, in particular, so far as Mr. Ng was concerned.

79. I took the view that they were perfectly honest witnesses who came here determined to give honest evidence and no more evidence than they were able to give properly. However, they do not carry this matter any further forward. I think it would be unsafe to accept their evidence as being related to this defamation, so I put them out of my mind.

80. I turn now to the level of damages. Damages in the circumstances where defamation has been proved serve two purposes and both are necessary if justice is to be done. First, the damages are intended to vindicate the plaintiffs' reputation on each and all the matters upon which he has been falsely defamed; the damages must be the public and demonstrative mark of that vindication, the vindication must be complete.

81. In Associated Newspapers Ltd. v. Dingle [1964] AC 371 to which I have already referred, Lord Radcliffe dealt with these two aspects of damage. At page 396 he said:

"A libel action is fundamentally an action to vindicate a man's reputation on some point as to which he has been falsely defamed, and the damages awarded have to be regarded as the demonstrative mark of that vindication."

And further on page 398 he deals with compensation for injured feelings. He says:

"and injured feelings, it must be remembered, are as much a matter of consideration in assessing damages for defamation as injured reputation."

So there are those two aspects of the damages with which I have to deal.

82. As to the sum which must be awarded it must be sufficient to publicly and demonstratively and absolutely vindicate the plaintiff and to compensate for seriously injured feelings. I bear in mind in considering this that the church has continued to expand since July 1985 and that is an indication on the other side as to the practical effects of the libel. I bear in mind that there are three plaintiffs who complain, each is entitled to have his damages individually assessed because his cause of action is individual. I bear in mind also that the element of damages for vindication may be to some extent cumulative, so I approach the matter with caution.

83. I have been invited to consider other awards made in this jurisdiction. They are of limited value. They demonstrate an obviously necessary tendency to increase awards since 1981 in the case of Sim Hok-gwan v. Tin Tin Yat Po Ltd. [1981] H.K.L.R. 221, I think, a decision of the Chief Justice.

84. Juries seem to be seldom used in defamation cases in Hong Kong. In some respects this is regrettable because a jury is uniquely qualified to assess the damages and the proper level of damages for vindication of reputation in any particular society. In this field it is better that juries should set the standard and judges should follow. However, it is not my task nor is it correct in principle for me to try to estimate what a jury would award; I must myself determine what sum is sufficient to do justice between the parties.

85. The 1st plaintiff's reputation and feelings have obviously suffered most in this matter. He is mentioned personally; he is the founder and throughout he has been the driving force in the church. Any allegations must be primarily against him when considering his position along with the other elders. If he is to be fully vindicated and compensated not a cent less than $120,000 will suffice, in my judgment, in present conditions in Hong Kong.

86. So far as the other two are concerned there is no reason to distinguish between them. They each suffered serious injury to their feelings and each of them must be vindicated in their reputation, they each must have $70,000 in order for that to be achieved.

87. There will, therefore, be judgment for $120,000 in favour of the 1st plaintiff, $70,000 in favour of the 2nd and the 3rd plaintiff.

MR. LAI: My Lord, may I clarify that further, the last sentence is 70 for the 2nd and the 3rd each?

COURT: Each. $70,000 for the 2nd plaintiff and 70,000 for the 3rd plaintiff. I put it that way because they are described as the 2nd plaintiff, but I think it would be convenient if you amend the title of this action, to 1st, 2nd and 3rd plaintiff.

MR. LAI: I think that makes reference easy. In fact your Lordship's judgment refers to them as the 2nd and 3rd plaintiff.

MR. ISMAIL: My Lord, I think my learned friend also applied to amend to correct the spelling of LAM Chi-kwong.

COURT: Well, I give him leave to that, yes.

MR. LAI: Perhaps that would be treated as being amended in that manner ...

COURT: Yes.

MR. LAI: ... 2nd and 3rd plaintiff.

COURT: Yes.

MR. LAI: My Lord, in the usual event I ask for costs.

MR. ISMAIL: My Lord, there is one small matter. My Lord, there is a witness on subpoena, may his subpoena be discharged, my Lord?

COURT: Yes. So be it. Costs to the plaintiffs. The subpoena can be discharged. I am very greatly obliged to counsel in the case, may I repeat, it has not been altogether an easy matter in some respects.

 

 

 

 

 

(J.B. Mortimer)

Judge of the High Court

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