INTERNATIONAL SOCIAL SERVICE (HONG KONG BRANCH) v. VISION FIRST LTD

HCA 683/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 683 OF 2014

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J U D G M E N T

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Introduction

1.  This is a claim by the plaintiff against the defendant for damages (and other relief) allegedly caused by libelous statements.  It is denied by the defendant (which was formerly legally represented, but acted in person at trial).

Background

2.  The background leading to this action can be found in some passages of my decision of 16 February 2017:

“The plaintiff commenced this action in April 2014, relying on the tort of libel (statement of claim, para 5 and 7 to 27). Some 21 allegedly defamatory articles (from August 2013 to May 2014, a period of about 8 to 9 months) are referred to in the statement of claim.

According to the statement of claim, the plaintiff is:

‘... the Hong Kong branch of an international non-governmental organization [with a network covering] over 100 countries ... [which assists] individuals and families with personal or social problems whose solution requires [inter-country] cooperation’ (para 1 thereof).

The plaintiff’s services are said therein to be ‘[to offer] support to refugees and new arrivals to Hong Kong with the aim of assisting them to integrate into the local community’ (para 2 thereof).

According to the defence, the defendant’s mission is said to be to offer support to all persons (including refugees) in Hong Kong (para 6 thereof).  The defendant also alleges that the plaintiff has been acting as an agent of the Social Welfare Department (‘SWD’) under a contract between the two.  The said contract is said to have delegated some of SWD’s responsibilities; namely, providing financial and other assistance to natural persons who have formally sought non-refoulement protection in Hong Kong (para 4(1) thereof).”

(para 7 to 9 thereof)

Main issues

3.  The amended defence (“defence”), rather unusually, admits most of the important averments in the amended statement of claim (“statement of claim”):

(a) the 21 articles referred to the plaintiff (para 29, statement of claim; para 31, defence);

(b) the pleaded natural and ordinary meanings of the words in the 21 articles (para 30, statement of claim; para 32, defence).

4.  By a consent order dated 24 February 2017 (shortly before trial), the following parts of the defence were struck out:

(1) para 15 to 29 and 35(d) (pleas of honest and/or fair comment);

(2) para 3 and 5, defendant’s answers to request for further and better particulars dated 12 November 2014 (pleas of honest and/or fair comment).

5.  Consequently, by the time of trial, the main issues which remain to be resolved are:

(a) whether the pleaded meanings were defamatory;

(b) the plea of justification of defamatory meaning (if any);

(c) damages and relief.

Witnesses’ testimony and findings of fact

6.  The following witnesses testified at trial:

(1) Mr Beatson (“Beatson”), the defendant’s founder and executive director;

(2) Ms Panares (“Panares”), the plaintiff’s program director.

7.  In gist, Beatson’s testimony is that:

(a) in relation to the accommodation in which the defendant’s clients resided, they were all bordering on subsistence level. Some of them were below even that standard in some respect, and some were illegally located and/or constructed.  Further, the plaintiff failed to carry out an adequate check on the conditions of accommodation;

(b) in relation to the food supplied to the defendant’s clients, the system was defective and abuses were rampant.  There was insufficient supervision and/or monitoring of the system (being part of the plaintiff’s job).

8.  But whatever was his dissatisfaction with the system of assistance and/or the adequacy of the plaintiff’s role and/or work in managing the system:

(1) Beatson admits that he does not know if the plaintiff and/or its officers had accepted bribe money;

(2) (perhaps due to the defendant’s inadequate discovery of documents) there is a general lack of specifics regarding the alleged inadequacies in the plaintiff’s work (the defendant’s extremely late attempt to discover a substantial quantity of documents at trial was disallowed);

(3) the lack of specifics is not limited to documentary evidence, but also in the defendant’s pleadings and witness statements;

(4) in view of the above, Beatson’s complaints cannot be safely relied upon as evidence of the plaintiff’s inadequate work.

9.  But even if Beatson’s testimony can be relied upon as evidence of the plaintiff’s allegedly inadequate work, it still does not establish:

(a) the plaintiff has committed criminal offence(s) (such as fraud and theft);

(b) the plaintiff has accepted bribes;

(c) the plaintiff has cheated the government;

(d) the plaintiff has conspired with others to defraud the defendant’s clients or to cheat them or deal with them unfairly;

(e) the plaintiff has breached the trust reposed upon it by the government or the Hong Kong community;

(f) the plaintiff should be imprisoned;

(g) the plaintiff has misused public funds;

(h) the plaintiff has colluded with the government.

(see also para 12(a) to (h) below)

10.  On the other hand, Panares has given testimony which I consider to be truthful and reliable.  When she was cross-examined, the alleged wrongs summarized in para 9(a) to (h) above were not put to her.  The main thrust of the cross-examination was about the provision of shelter and food by government with the help of the plaintiff. Panares has given explanations for the alleged inadequacies.  They include:

(1) the plaintiff has required the shelter owners to provide proof of title, or authority to lease.  The plaintiff’s staff would inspect the shelters before approval was given, and would inspect them from time to time afterwards;

(2) there were instances where the plaintiff has been deceived by the shelter owners or their agents;

(3) some shelters were preferred by the residents (who sought the plaintiff’s approval to reside there) despite the plaintiff’s advice against residing there;

(4) after the plaintiff has been alerted to illegally located or constructed shelters, the plaintiff has issued warnings to the residents urging them to leave;

(5) the alleged overpricing of food items is unfounded.  The food suppliers were required to meet unusual requirements such as (a) offering uncommon ethnic food, (b) fixed prices over prescribed periods and (c) food packaging and delivery services;

(6) some of the food suppliers who misbehaved have been banned from the supplier list;

(7) there were instances where food items were exchanged for cash after they were supplied.  The food coupon system (for which the defendant claims credit) did not solve the problem entirely although it enabled such misbehaviour to be more easily tracked.

The defamatory “sting”

11.  The relevant legal principles for determining whether a statement of defamatory are settled.  To quote from one of my earlier decisions:

“IMPUTATION(S) OF THE SUBJECT ARTICLE

15. To resolve the dispute summarized at para 3(a) and (b) above, it is proper (and necessary) to begin by considering the imputation(s) of the subject article.

(a) Relevant legal principles

16. For such purpose, the relevant legal principles can be distilled as:

(1) words are normally construed according to their natural and ordinary meaning;

(2) the words the subject-matter of the analysis are given only a single meaning;

(3) the single meaning is that ascribed to the words by a fictitious ordinary reader;

(4) context of the words needs to be taken into account; in other words, the article in question must be taken as a whole;

(5) whether the words were believed (or not believed) by the audience is irrelevant (unless they were totally beyond belief).

Details of the above can be found in Wong Wai Kay v Hong Kong Economic Journal Co Ltd and Another [2013] 3 HKLRD 27, para 9; Oriental Press Group Ltd and Others v Fevaworks Solutions Ltd t/a Alive! Media and Communications and Another HCA 597/2009 (25 February 2011), para 14 and 15; Charleston and Another v News Group Newspapers Ltd and Another [1995] 2 AC 65, 71F-72F; Gatley on Libel and Slander (2013) 12^th Ed, para 2.1, text to nn 15 and 16, 3.13 to 3.18 and 3.24.

17. To put the above in another way, there are two stages to the process for determining whether the words are defamatory:

(a) first, to decide what the words mean;

(b) secondly, to decide whether that meaning is defamatory (and if defamatory, the ‘sting’ of the defamation).

See Gatley, para 2.1.

18. Further, where a defamation action is tried by a judge without jury, it would be carrying artificiality too far to require the judge to arrive at the single ‘right’ meaning by distinguishing between various meanings which the words were capable of bearing, and then choosing the ‘right’ one: Next Magazine Publishing Ltd and Others v Oriental Daily Publisher Ltd (2000) 3 HKCFAR 160.

19. Gatley has offered a working definition of ‘defamatory meaning’:

‘a defamatory imputation is one to the claimant’s discredit, or which tends to lower him in the estimation of others or causes him to be shunned or avoided; or exposes him to hatred or ridicule.’

Gatley, para 2.1, text to nn 4 to 7, quoted in Oriental Daily Publisher Ltd and Another v Ming Pao Holdings Ltd and Others HCA 607/2008 (28 May 2010), para 23.

20.    There is no reliance on ‘innuendo’”

(quoted from para 15 to 20 and 25, Law Chi Ching v Apple Daily Ltd and Others HCA 2155/2009 (21 August 2015))

The characteristics of the fictitious ordinary reader (see para 16(3) of the Law ChiChing decision) are set out below:

“The fictitious ‘ordinary reader’ is described as one with the following temperament:

‘He is a sort of half way house between the unusually suspicious and the unusually naive. He is essentially fair-minded and reasonable and does not jump to hostile conclusions on flimsy evidence; but he may be guilty of a certain amount of loose thinking and does not read a sensational article with cautious and critical care ... and his capacity for implication or drawing inferences is greater than the lawyer’s ... The layman reads in an implication much more freely, and ... is especially prone to do so when it is derogatory’ (Gatley, para 3.25).

See also Charleston and Another v News Group Newspapers Ltd and Another [1995] 2 AC 65, 71F-72F”.

(quoted from Mok Kam Kwai v Lam Mo Fat HCA 1868/2010 (6 March 2014), para 31)

12.  The natural and ordinary meanings pleaded in the statement of claim (and which have been admitted by the defendant) are in short:

(a) the plaintiff has committed criminal offence(s) (such as fraud and theft);

(b) the plaintiff has accepted bribes;

(c) the plaintiff has cheated the government;

(d) the plaintiff has conspired with others to defraud the defendant’s clients or to cheat them or deal with them unfairly;

(e) the plaintiff has breached the trust reposed upon it by the government or the Hong Kong community;

(f) the plaintiff should be imprisoned;

(g) the plaintiff has misused public funds;

(h) the plaintiff has colluded with the government.

13.  Whether an imputation is defamatory is essentially a question of fact: Gatley para 2.27.  But previous decisions indicate the following were instances of defamatory imputation:

(1) calling someone a rogue and a rascal, a swindler, a greedy sinecurist, a crook, a cheat, or that he is dishonest or has breached his duty (or any dishonourable conduct against someone else);

(2) calling someone a criminal, or imputing that he is guilty of a crime;

(3) injuring someone’s reputation in his business, trade or profession, or imputing he is unfit in office or unfit for his profession or calling.

(Gatley para 2.28, 2.35, 2.37 to 2.38 and the footnotes thereto)

14.  Bearing the above in mind, the 21 articles are quite clearly intended to, and did, convey to an ordinary reader defamatory imputations (as summarized in para 12(a) to (h) above).

15.  The defendant argues that the word “corruption” used in some of the 21 articles did not impute corruption (in the criminal sense (such as soliciting, or accepting, bribery)) but merely “dishonest or fraudulent conduct by those in power” or “making someone or something morally depraved” (citing, in support, “The Oxford Dictionary”).  I disagree for two reasons.

16.  The meaning of words should be understood in the context in which they were used.  The context in which “corruption” (or “corrupt”) has been used was, for example:

(a) corruption was used together with an allegation of cheating the government;

(b) corruption was used together with theft (“ISS Stop Corruption” and “ISS is a thief”);

(c) corruption was used together with an abuse of power;

(d) corruption was used in the context of 6 million tax money not being used for its intended purpose and the government having been cheated;

(e) corruption was said to have been exposed to (among others) the police and the public;

(f) corruption was used together with inferior food quantity and quality.

Used in such context, the word connotes misconduct much more serious than those contended for in para 15 above.

17.  Apart from the above, the defendant, through Beatson, in fact lodged a complaint against the plaintiff with the law enforcement agencies (including ICAC).  In view of such action, it is rather disingenuous for the defendant put forth the argument summarized in para 15 above.

Conclusion on liability

18.  The plaintiff has established that the 21 articles were defamatory of the plaintiff and were published by the defendant. The plea of justification fails.

Damages/relief

19.  The plaintiff’s opening submissions propose an award of $1.5 million (para 96 thereof) (the proposal is not maintained in the final submissions).  The defendant, understandably, has not put forth any proposed amount of damages.

20.  The plaintiff puts forth the matters below in support of its contention that:

“… this is one of the worst cases of this kind, and the award of damages … should properly reflect that” (para 93, plaintiff’s opening submissions).

The matters put forth are:

(1) the allegations are serious.  The plaintiff has been accused of dishonourable, dishonest and criminal conduct and having breached the trust reposed by the government and the public;

(2) the allegations were published more than once, and over a sustained period, through the Internet, which could potentially reach a wide readership (both as regards number and as regards geographical coverage);

(3) the defendant has persisted in the libel even up to the beginning of trial (see para 5(b) above);

(4) the defence indicates that the defendant will continue to publish the libel.

21.  The decisions referred to by the plaintiff as guidance for making an award are:

(a) Chu Siu Kuk Yuen v Apple Daily Ltd and Others [2002] 1 HKLRD 1 ($3 million awarded);

(b) Yaqoob v Asia Times Online Ltd [2008] 4 HKLRD 911 ($1 million and $150,000 awarded for different plaintiffs);

(c) Blakeney-Williams v Cathay Pacific Airways Ltd (2012) 15 HKCFAR 261 ($700,000 awarded);

(d) John Raymond Luciw v Wolfgang Derler, HCA 2148/2011 (29 July 2013) ($1 million awarded);

(e) Mok Kam Kwai v Lam Mo Fat, HCA 1868/2010 (6 March 2014) ($400,000 awarded);

(f) Hong Kong Television Network Ltd v Asia Television Ltd & another, HCA 2217/2012 (20 November 2015) ($1.3 million awarded).

22.  The aggravating features in this action include the following:

(1) the allegations made are serious (see para 12 to 13, 15 to 16 and 20(1) above);

(2) the allegations were not made once, but were published from time to time for about 8 to 9 months;

(3) the defendant persists in defending this action, and relies on the defence of justification which totally fails.

23.  On the other hand, the actual readership appears from the evidence to be much less than expected (the maximum reads were about 800, which is said to be substantially more than the daily average).

24.  Because of the vast difference in the extent of publication, the awards made in the mass media decisions cannot provide a good guidance (para 21(a) to (c) and (f) above).  The award in the Derler decision (para 21(d) above) was premised on the court’s finding that the libel has reached “a large but unquantifiable number of” readers (through Facebook and Asiaexpat.com) (para 17, the Derler decision).  The award in the Mok Kam Kwai decision (para 21(e) above) was premised on the court’s finding that the libel has probably been seen by a substantial number of people (para 76, the Mok Kam Kwai decision).

25.  In the Law Chi Ching v Apple Daily and Others [2017] 1 HKLRD 1028, the court of appeal awarded $450,000 for a one-off libel alleging criminal conduct where the “readers who would be able to link up the plaintiff with the person mentioned in the article are in the few tens rather than in the few hundreds” (para 8 thereof).

26.  Bearing all of the above in mind, the appropriate awarded for general damages should be $800,000.  In reaching this sum, (besides the matters stated above) I also take into account:

(a) it is unlikely the government has attached any weight to the libel (although the libel might at least at one stage have caused the plaintiff some additional work to explain their position);

(b) this judgment will also help to vindicate the plaintiff.

27.  I also accept the plaintiff’s argument that, in view of the contents of the defence (para 36 thereof), an injunction (in terms similar to that sought in the prayer for relief) should be granted.

Conclusion

28.  Judgment is entered in the plaintiff’s favour as stated in para 26 and 27 above.

Other matters

29.  The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the judgment and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

Costs order

30.  The parties agree that costs should follow the event.  There will accordingly be a costs order that the costs of this action are to be paid by the defendant to the plaintiff to be taxed if not agreed.

HCA 683/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 683 OF 2014

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DECISION ON COSTS

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1.  By a decision handed down on 16 February 2017, the defendant’s jury trial application was refused (“the Feb 2017 decision”). Directions were given for the parties to address the court as regards the costs thereof.  This is the decision on costs after perusing the related written submissions. Unless otherwise stated, the same abbreviations used in the Feb 2017 decision will be used below.

2.  It cannot be disputed that, in relation to the jury trial application, the defendant was the unsuccessful party.  It seeks the costs to be made in the cause of the action.  The main ground in support is that, earlier, the plaintiff also agreed to the jury trial application.

3.  The plaintiff’s explanation for their earlier agreement to the jury trial application is that they were informed by the defendant there would be no prolonged examination of documents at trial (despite about 1,200 pages having been discovered (of which some 770 pages were accounting documents)).

4.  A neutral stance was adopted by the plaintiff by the time of the PTR.  The plaintiff now explains that it was not aware of the defendant’s non-compliance with s 15(1), Cap 3 until the PTR (non-compliance with s 15(1), Cap 3 being the main reason for the refusal of the jury trial application).

5.  I accept the plaintiff’s above explanations to the effect that no serious attempt was made to resist the jury trial application earlier only because it wanted to act reasonably (which would save costs and time).

6.  The non-compliance with s 15(1), Cap 3 occurred after 30 May 2016 (this action having been set down for trial on 23 May 2016).

7.  In view of the matters set out above, the appropriate costs orders are:

(a) the costs of the jury trial application on and before 30 May 2016 be in the cause of this action;

(b) the costs of the jury trial application after 30 May 2016 be paid by the defendant to the plaintiff in any event.

  

HCA 683/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 683 OF 2014

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D E C I S I O N

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Introduction

1.  Three matters were listed for hearing on 20 January 2017:

(a)   pre-trial review (“the PTR”);

(b)   the defendant’s application for leave to have this action tried by a judge together with a jury (“the jury trial application”);

(c)   the plaintiff’s application to strike out parts of the defence.

This decision only deals with the jury trial application, as both the PTR and the striking out application have been adjourned to later dates for further handling.

2.  The summons for the jury trial application seeks:

“[leave] to have this action [to] be tried with a jury”.

Its marginal notes refer to s 33A, High Court Ordinance (Cap 4) (“s 33A”) and RHC Ord 33 r 5, The Rules of the High Court (Cap 4A) (“Ord 33 r 5”) (there was no reference to s 15, Jury Ordinance (Cap 3) (“s 15”) in the said summons or the parties’ respective written notes for the PTR (the parties’ attention was however drawn to that aspect by the court shortly before the hearing)).

3.  The former provision (s 33A) states:

“(1) Where, on the application of any party to an action the Court of First Instance is satisfied that there is in issue-

(a) a claim in respect of libel, slander, ... or

(b) any question or issue of a kind prescribed for the purposes of this paragraph by rules of court,

the action shall be tried with a jury, unless the Court is of the opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.”

(emphasis supplied)

S 33A(2) further provides that such an application must be made not later than such time before the trial as may be prescribed by rules of court.

4.  The latter provision (Ord 33 r 5) provides:

“(1) ... an application for trial with a jury under [s 33A] (the time for making which is, under that section, to be limited by rules of court) must be made before the place and mode of trial is fixed under rule 4.”

(emphasis supplied)

5.  When read together with Ord 34 r 2 (setting down for trial action begun by writ) (especially Ord 34 r 2(1)), the prescribed time referred to in s 33A(2) would effectively mean, in the ordinary course of event, any time before the order for setting down for trial is being made.

6.  Further to the above, s 15 provides:

“(1) Where the court or a judge orders that a cause shall be heard before a jury, the party applying for such order shall, within 7 days after the cause is set down in the general hearing list or within such further period as the court or a judge may allow, deposit with the Registrar a sum sufficient to cover the expenses of the jury.

(2)   Notwithstanding anything contained in the Rules of the High Court (Cap 4 sub. leg. A), if such deposit be not made within the time prescribed in subsection (1) the cause shall be heard by the court without a jury.”

(emphasis supplied)

Background

7.  The plaintiff commenced this action in April 2014, relying on the tort of libel (statement of claim, para 5 and 7 to 27).  Some 21 allegedly defamatory articles (from August 2013 to May 2014, a period of about 8 to 9 months) are referred to in the statement of claim.

8.  According to the statement of claim, the plaintiff is:

“... the Hong Kong branch of an international non-governmental organization [with a network covering] over 100 countries ... [which assists] individuals and families with personal or social problems whose solution requires [inter-country] cooperation” (para 1 thereof).

The plaintiff’s services are said therein to be “[to offer] support to refugees and new arrivals to Hong Kong with the aim of assisting them to integrate into the local community” (para 2 thereof).

9.  According to the defence, the defendant’s mission is said to be to offer support to all persons (including refugees) in Hong Kong (para 6 thereof).  The defendant also alleges that the plaintiff has been acting as an agent of the Social Welfare Department (“SWD”) under a contract between the two.  The said contract is said to have delegated some of SWD’s responsibilities; namely, providing financial and other assistance to natural persons who have formally sought non-refoulement protection in Hong Kong (para 4(1) thereof).

10.  Below is a summary of the relevant procedural steps between the commencement of this action and the PTR hearing:

(1)   filing of reply on 13 January 2015;

(2)   case management summons dated 16 March 2015 (hearing on 26 April 2016);

(3)   defendant’s summons to have this action be tried with a jury dated 9 December 2015;

(4)   the parties’ consent summons to have this action be tried with a jury dated 23 December 2015;

(5)   enquiry by master as regards the grounds for trying this action with a jury;

(6)   defendant’s 2^nd affirmation dated 27 January 2016 regarding the subject-matter in sub-para (5) above;

(7)   correspondence between master and the parties regarding the subject-matter in sub-para (5) above from March to April 2016;

(8)   case management conference dated 26 April 2016 where (among other directions) master:

(a)   granted leave to set down this action for trial within 42 days (Ord 34 r 2);

(b)   directed that the application for trying this action with a jury be dealt with by the trial judge at the PTR;

(9)   this action was set down for trial on 23 May 2016 in the fixture list (Ord 34 rr 3 and 8);

(10)   master observed on 25 May 2016 that an application for this action to be tried with a jury had to be made and decided before setting down (referring to Ord 33 r 5).  The parties were invited to attend court on 31 May 2016 to address on the question of jurisdiction;

(11)   the plaintiff on 26 May 2016 invited master to grant leave to set down this action for trial despite the subject-matter in sub-para (5) remains outstanding.  It was also contended that such an application having already been made (sub-para (3) above), Ord 33 r 5 should not constitute any problem; this was in effect shared (or at least not objected) by the defendant on 27 May 2016;

(12)   master directed on 31 May 2016 that the order to set down on 26 April 2016 (sub-para (8) above) was to stand.

Jury trial application

11.  In view of the above summary:

(a)   the jury trial application was made within the time prescribed by Ord 33 r 5(1) (when read together with Ord 33 r 4(1)) (para 10(3) and 10(8)(a) above);

(b)   however, this action has not been ordered to be heard with a jury (s 15(1)); but it has already been set down for trial (para 10(8)(a) and (9) above).

12.  The sum stated in s 15(1) (“jury deposit”) has not been deposited by the parties “within 7 days after the cause is set down” (in fact, it has not been deposited up to today).  When asked about this, the defendant explained that it had been waiting for the outcome of the jury trial application.  Further, it is contended that the time prescribed by s 15(1) has not begun to run because there is as yet no order for this action to be heard with a jury.

13.  I disagree with this contention.  In order for s 15(1) to make logical sense, the order for an action to be heard with a jury must be obtained before the action is set down for trial; otherwise the Registrar will not know if the jury deposit is properly tendered.  In any event, s 15(1) expressly stipulates that the time for making the jury deposit should run from the time of setting down (para 6 above).

14.  On this reading of s 15(1), when the master directed that the jury trial application be adjourned to be dealt with by the trial judge (para 10(8)(b) above), the parties herein (especially the defendant who persists in seeking a trial with a jury) ought not have invited the master to grant leave to set down this action for trial ahead of the determination of the jury trial application (para 10(7) and (8)(a) above).

15.  I pause to note that such a reading of s 15(1) is also consistent with the language of s 33A(2) and Ord 33 r 4(1) when the two provisions are read together: see also the observation in George YC Mok & Co(a firm) v Trade Advisers Co Ltd and 2 Others HCA 5019/2001 (19 February 2003, para 9 to 13).

16.  What has happened so far (see para 10 (especially para 10(8) and (9) above)) now puts the defendant in an unenviable position (for its own point of view, because, by the time of the PTR, the defendant was the only party seeking a trial with a jury).  This is because the right conferred by s 33A(1) (which has been described as a “qualified” right in Fiddes v Channel Four Television Corporation & Others (Practice Note) [2010] 1 WLR 2245, 2247-8) is lost once the right has not been exercised in time (Telegraph Media Group Ltd v Sarah Thornton [2011] EWCA Civ 748, para 15 and 20; albeit the observation was made in relation to the English equivalent of s 33A(2) and not s 15(1); see also s 15(2)).

17.  When a party’s right to trial with a jury is lost, an application for such mode of trial then becomes a matter for the court’s discretion: s 15(1).  See the Telegraph Media Group decision, para 15 and 20.

18.  The manner in which the court’s discretion ought to be exercised has been discussed in more than a few cases both locally and in England.  Insofar as they may be relevant to the jury trial application, some of the factors to be borne in mind are:

(1)   the “modern” emphasis is against trials with juries: Goldsmith & Another v Pressdram Ltd & Others [1988] 1 WLR 64, 68 and 72; Aitken v Preston& Others [1997] EMLR 415, 421; Cook v Telegraph Media Group Ltd [2011] EWHC 763 (QB), para 83; Gatley on Libel and Slander (2013) 12^th Ed, para 32.1.  At the very least, there has been a gradual development of practice of only rarely exercising the discretion to order jury trials: Armstrong v Times Newspapers Ltd & Others (No 2) [2006] 1 WLR 2462, 2466-7;

(2)   as will be elaborated in the sub-paragraphs below, the above predisposition became even more prominent since the introduction of the Civil Justice Reform in Hong Kong (just as it has since the reform in the UK CPR (Civil Procedure Rules)): Gatley, 31.67 n 311; Mark Lewis v Commissioner of Police of the Metropolis & Others [2012] EWHC 1391 (QB), para 30 (significant case management advantages);

(3)   factors militating against jury trials would include:

(a)   the efficient administration of justice. Falling within this aspect are: (1) prolonged examination of documents (which includes written directions on points of law prepared by the judge, documents which may be introduced in cross-examination and the like); (2) inconvenience (which includes probable difficulty of any issues involved (this sometimes requires the jury to return an “exam paper” type of special verdicts), physical bulk of trial documents, the need for detailed and minute examination of documents, cross-references to different documents (or bundles), examination in chief has to be verbal and so on); (3) additional length of trial and the closely related additional costs of jury trial; (4) one party acting in person, especially for trials involving areas of law which have recently been changed, or have possible rooms for development or change (such as the so-called Reynolds qualified privilege, or the defence of fair (or “honest”) comment, or the tort of misfeasance in public office);

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

(c)   the risk of excessive jury awards constituting an interference with freedom of speech;

(d)   the availability of a reasoned judgment from a single judge;

(4)   factors favouring jury trials would include:

(a)   prominent figures in public life;

(b)   questions of national interest;

(c)   actions involving issues of credibility and a party’s honour and integrity are under attack;

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

19.  Judicial (or textbook) observations regarding para 18(3) above include Gatley, para 31.65, the Goldsmith decision, p 74-5, the Aitken decision, p 421, Beta Construction Ltd and Another v Channel Four Television Co Ltd and Another [1990] 1 WLR 1042, 1048, 1055, Stephen James Phillips v The Commissioner of Police of the Metropolis [2003] EWCA Civ 382, Wong Tsz Yuk v香港警務處長鄧竟成先生及律政司司長 HCA 1699/2008 (29 April 2010), para 12-3.  Since the introduction of CPR, the predisposition against jury trial has become more apparent: Gatley, para 31.67, text to n 311, the Cook decision, para 107, Racz v Home Office [1994] 2 AC 45 and 55.

20.  Judicial (or textbook) comments regarding para 18(4) above include the Aitken decision, p 422, the Fiddes decision, p 2249, Gentoo Group Ltd & Another v Stephen Hanratty [2008] EWHC 2328, para 7, Rothermere & Others v Times Newspapers Ltd and Others [1973] 1 WLR 448.

21.  But the factors set out in para 18(4) above have by now been given lesser weight:

(a)   para 18(4)(a), (c) and (d) above should not be elevated to too high a level: the George YC Mok decision, para 17, Cropper v Smith (1884) 26 Ch D 700, the Mark Lewis decision, para 29-30;

(b)   para 18(4)(b) above now has less importance because judges are now independently selected and appointed: the Cook decision, para 104.  I also note that, with the prevalent use of the judicial review procedure nowadays, judges are often perceived to be well capable of adopting a stance not shared by the government.

22.  Applying the above to this action, the factors which favour a jury trial are:

(1)   the defendant’s wish to do so (the plaintiff is neutral);

(2)   the contention that the jury trial application was made (though no order was obtained) within the time prescribed by s 33A(2) and Ord 33 r 5 and Ord 34 r 2.

23.  As has been stated in para 21 above, the defendant’s wish carries little weight.  As regards para 22(2) above, as has been pointed out in para 14 above, the parties (including the defendant) were responsible for not obtaining the order regarding the desired mode of trial, before inviting master to grant leave to set down.  For this reason, insofar as the defendant may do so, it cannot now be heard to complain that the master’s setting down direction (and the subsequent notice to set down) has made it impossible to comply with s 15(1).

24.  The defendant also argues that the plaintiff is equivalent to government because the plaintiff has been funded by government to carry out some of government’s responsibilities to support refugees who reside here (para 9 above).  Even if the defendant be correct as regards the plaintiff’s funding and duties, the dispute between the parties revolves around whether the defendant’s allegation (among other things) that government funds given to the plaintiff has been honestly and properly used by the plaintiff.  In relation to such dispute, the plaintiff’s position cannot properly be regarded as the government’s; it has never been suggested the government actually intended, or somehow connived or acquiesced in, any dishonest and/or improper use of funds by the plaintiff (assuming such misdeeds are established).  Para 21(b) above is also relevant here.  This argument therefore has no substance in the context of this action.

25.  Further to the predisposition outlined above, the following features further militate against a jury trial:

(a)   as stated above, this action concerns some 21 articles. Strangely, their alleged defamatory meaning has been in only one paragraph in the statement of claim (para 30).  It is unclear (even up to the PTR hearing when the court raised query about this) whether the pleading asserts each and every of the articles bear that meaning, or that was pleaded to be the cumulative meaning, or the defamatory meaning of only some of the said articles (and if so, which).  The defence apparently does not detect the potential embarrassment of such unclear pleading, and put forth an admission (para 32);

(b)   plaintiff counsel who appeared at the PTR hearing has no previous experience in defamation trial (let alone jury trial) (though he disclosed the identity of leading counsel who has such experience);

(c)   defence counsel who appeared at the PTR (and who has no previous litigation experience either) informed that he had no instruction to conduct the trial, and was unable to inform who trial defence counsel would be.  Further, he moved back and forth between whether senior counsel would be engaged and the defendant having only limited fund to litigate;

(d)   defence counsel confirmed that the Reynolds qualified privilege would be relied upon at trial.

26.  With the above in mind, it is likely the assistance with which the court will be provided will be less than when well experience counsel for both parties would appear for the parties at trial.  In relation to para 25(a) above, the plaintiff indicated that further consideration would be given to the averments in the statement of claim after the PTR hearing.

27.  Finally, I also note that the plaintiff was in possession of about 1,200 pages of documents (about 770 pages of which are accounting documents).  One of main disputes is whether the plaintiff has misused public funds.  The plaintiff said the documents would negate such allegation.  Because the identity of defence trial counsel is still unknown (para 25(c) above), it is unclear if the defendant will make use of these documents at trial (and if so how). 

28.  In view of the matters set out above, I am not satisfied that this is a case where the discretion should be properly exercised to direct that there be a trial with a jury.

Conclusion

29.  The jury trial application is accordingly refused.

Other matters

30.  The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the decision and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

Costs order

31.  I will hear the parties’ submissions on the costs of the jury trial application before deciding the costs order to be made.