CHAPTER 20

DEFAMATION
By Joseph Vaughan
Para.
1. General .................................................................................................................................. 20.001
(a) Introduction ..................................................................................................................... 20.001

2. Defamatory Statements ......................................................................................................... 20.017

3. Refers to Plaintiff .................................................................................................................. 20.031

4. Publication ............................................................................................................................ 20.033

5. Defences ................................................................................................................................ 20.039

(a) Generally ......................................................................................................................... 20.039
(b) Justification ..................................................................................................................... 20.044
(c) Privilege .......................................................................................................................... 20.053
(d) Fair comment (“comment or honest comment”) and criticism ....................................... 20.081

6. Remedies ............................................................................................................................... 20.091

(a) In general ........................................................................................................................ 20.091
(b) Special damage ............................................................................................................... 20.099
(c) Mitigation of damages .................................................................................................... 20.100
(d) Injunction ........................................................................................................................ 20.104

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 1. GENERAL
(a) Introduction

Nature. Defamation is basically a tort for the protection and the vindication of 20.001
reputation.1 In order to establish a case of defamation, the plaintiff has to prove that
the defendant has published, or is responsible for the publication of, defamatory words
or material that is reasonably understood to be referable to the plaintiff. The plaintiff,
however, need not prove that the defendant had intended to defame,2 or that anyone
had actually believed the statement to be true,3 hence lowering the plaintiff in the
eyes of third parties, and suffering any actual damage. The motive of the defendant is
immaterial unless the occasion calls for a consideration of qualified privilege or fair
comment, in determining a defendant’s liability. Whether the statement is defamatory
or not depends on the natural tendency of the publication in the surrounding
circumstances4 instead of the intention of the defendant. Nor does the plaintiff need to
prove that the statement made was not true, although he must allege in his pleadings
that the imputation is false. The right to sue, and for such litigation to be maintained is
personal, and does not extend beyond the death of the plaintiff.5 Although the bulk of
actions for defamation are brought by individuals, corporations may also sue and claim
for damages for disparagement of their business reputation.6 However, governmental
bodies cannot be sued in defamation.7 This exception has been applied to political
parties in England.8

1
See, e.g. Bell-Booth v Att-Gen [1989] 3 NZLR 148.
2
Sin Cho Chiu v Tin Tin Publication Development Ltd (unrep., HCA 6662/1997, [2002] HKLRD (Yrbk) 560,
[2002] HKEC 50); Tuet Kazim v Ma Nurudeen [1987] 3 HKC 382. See also Gustav Adolph Abrath v The North
Eastern Railway Co (1886) LR 11 App Cas 247, 253 (Lord Bramwell); Capital and Counties Bank Ltd v George
Henty & Sons (1881–82) LR 7 App Cas 741, 772 (Lord Blackburn); E Hulton & Co v Jones [1910] AC 20, 23
(Lord Loreburn LC). See also Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331, 354 (Russell LJ); and
Newstead v London Express Newspaper Ltd [1940] 1 KB 337, 396.
3
Hough v London Express Newspapers Ltd [1940] 2 KB 507, 515, approving Morgan v Odhams Press Ltd [1971]
1 WLR 1239, 1252 (HL) (Lord Morris) and 1246 (Lord Reid); see also Slim v Daily Telegraph Ltd [1968] 2 QB
157, 172, 173 (Diplock LJ); Cf Theaker v Richardson [1962] 1 WLR 151.
4
Haire v Wilson (1829) 109 ER 239; Cadam v Beaverbook Newspapers Ltd [1959] 1 QB 413; Rubber Improvement v
Daily Telegraph Ltd [1964] AC 234. See also Keays v Murdoch Magazines (UK) Ltd [1991] 1 WLR 1184.
5
See s.20(1) of the Law Amendment Reform (Consolidation) Ordinance (Cap.23). See also Brown v Ritchie
(1904) 6 F 942 (an action is not maintainable for defamation of a deceased person).
6
See, e.g. Peregrine Investments Holdings Ltd v The Associated Press [1997] HKLRD 1073. See also: Derbyshire
County Council v Times Newspapers Ltd [1993] AC 534, 547B (HL), (Lord Keith of Kinkel). Charitable
institutions may also sue: see, e.g. China Youth Development Ltd v Next Magazine Publishing Ltd (unrep., HCA
63007/1994, [2000] HKEC 678); so may universities: Hong Kong Polytechnic University v Next Magazine
Publishing Ltd [1997] HKLRD 514. See also: South Hetton Coal Co Ltd v North Eastern News Association Ltd
[1894] 1 QB 133, 147 (Kay LJ); Empire Typesetting Machine Co of New York v Linotype Co Ltd (1898) 79 LT
8 (affirmed Linotype Co Ltd v British Empire Type-Setting Machine Co Ltd (1899) 81 LT 331), Thorley’s Cattle
Food Co v Massam (1880) LR 14 Ch D 763; South Hetton Coal Co Ltd v North Eastern News Association Ltd,
above; Irish People’s Assurance Society v City of Dublin Assurance Co [1929] Ir R 25; D & L Caterers Ltd v
D’Anjou [1945] 1 All ER 563 (slander); Sungravure Property v Middle East Airliban SAL (1975) 49 AJLR 17
(innuendo that an airline was especially susceptible to hijacking); McDonald’s Corporation v Steel [1995]
EMLR 527.
7
Derbyshire County Council v Times Newspapers Ltd [1993] AC 534.
8
Goldsmith v Bhoyrul [1998] QB 459.

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 884 DEFAMATION

20.002 Jurisdiction. As international communications become increasingly important,

especially with the internet,9 people of other jurisdictions may come forward with
complaints of defamation. It is usually the case that the proceedings should be brought
where the defendant is, but if the tort is committed in some other jurisdiction, and if
the plaintiff has connections with that jurisdiction he may be able to lodge his claim
in that jurisdiction. One recent case in Hong Kong concerning jurisdictional issues is
Investasia Ltd v Kodansha Co Ltd.10 In that case the plaintiffs claimed that they had
been libelled in articles written in Japanese in a Japanese publication that has been
read in Hong Kong, affecting their business reputation in Hong Kong. They instituted
proceedings in Hong Kong and applied for leave to serve the writ in Japan, so that
the action could be tried in Hong Kong. The defendants were in Japan, and applied
to set aside the writ. The court considered the principles in Berezovsky v Forbes Inc11
and went on to consider various factors to determine whether the plaintiffs should be
allowed to maintain the action in Hong Kong, such factors include the scale of the
publication, the plaintiff’s connections with the jurisdiction, and the existence of any
reputation of the plaintiffs in Hong Kong. Findlay J remarked “The place to vindicate
a damaged reputation in Hong Kong is in Hong Kong, not in Japan or somewhere
else”.12 In Esquel Enterprises Ltd v Tal Apparel Ltd13, the Court of Appeal upheld the
decision of the judge below to grant a stay of the plaintiffs’ claims, which included
damages for libel and slander, on the ground of forum non conveniens in respect of
alleged defamation committed in the United States and Japan respectively.14
20.003 Basic Law, Article 27. The Chief Justice has said in Cheng v Tse Wai Chun15 that
“[t]he 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
(Article 27)”. Under art.39 of the Basic Law, the International Covenant on Civil
and Political Rights continues to apply to Hong Kong, under art.19 of which specific
protection of freedom of speech and expression is provided, subject to restrictions
as are provided by law and are necessary for respect of the rights and reputation of
others, or for public security.16 In Derbyshire County Council v Times Newspapers,17
the House of Lords ruled that any governmental body should be open to uninhibited

9
See, e.g. Totalise Plc v The Motley Fool Ltd [2002] 1 WLR 1233 (CA); Loutchansky v Times Newspapers Ltd
(Nos. 4 and 5) [2002] QB 783; Takenaka (UK) Ltd v David Frankl [2001] EBLR 40 (CA). In general see Collins,
Law of Defamation and the Internet (2nd edn, OUP, 2001).
10
[1999] 3 HKC 515.
11
[1999] EMLR 278. Appeal to the House of Lords dismissed: Berezovsky v Michaels [2000] 1 WLR 1004.
12
See also HH Sheikha Mouza Al Misnad v Azzaman Ltd [2003] EWHC 1783 (QB); King v Lewis [2004] I L Pr 31;
and Lennon v Scottish Daily Record [2004] EMLR 18.
13
[2006] 2 HKLRD 363 (CA).
14
See also Emperor (China Concepts) Investments Ltd v SBI E-2 Capital Securities Ltd (unrep., HCA 2696/2004,
[2005] 4 HKLRD L6) (Deputy Judge Saunders).
15
(2000) 3 HKCFAR 339.
16
Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB 670; John v MGN Ltd [1997] QB 586; Reynolds v
Times Newspapers Ltd [2001] 2 AC 127 (declaring that the European Convention, Art 10, which provided that
the freedom of speech would be subject to such restrictions as are “necessary”, to be consistent with the common
law).
17
Ibid.

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 GENERAL 885

criticism. As such, the threat of a civil action for defamation would have an inhibiting
effect on the freedom of speech.18
Libel and slander. It has been said that defamation consists of two torts—libel and 20.004
slander.19 The distinction is often explained by reference to slander being in transient
form, and defamation in permanent form is libel. Libel is usually something that
is written or printed, but a painting could amount to libel.20 A person reading out a
defamatory document publishes a libel.21 Whilst it may be said that an extemporary
broadcast of words may be slander, s.22 of the Defamation Ordinance now makes it
clear that the broadcasting of words shall be treated as publication in permanent form.22
If a matter is recorded on a record or tape, the publication of the recorded matter may
constitute libel.23 Technically publications on the internet is libel but exchanges on
an online forum or bulletin board may be treated as more akin to slander.24 One of
the important differences between slander and libel is that in order to succeed in an
action for slander, the plaintiff must prove special damage, unless the case falls within
one of four exceptions25. This reflects the commonly accepted position that libel is in
permanent, hence more durable form, more likely to damage reputation.26 But it has
been said that the proposition that libel is actionable per se should not be “pressed too
far”; that although the presumption of damage has been defended as pragmatic good
sense, the court may strike out a trivial claim without apparent proof of any damage
as an abuse of process if the accusation was not serious and was not published to a
significant number of people27 on the ground that the cost of the proceedings will be
out of all proportions to what would have been achieved.28 The four classes of slander
that are actionable per se without the need to prove special damage are cases where the
defamatory allegations impute a criminal offence29, that a plaintiff is suffering from
certain contagious diseases, the unchastity of a woman, and where the allegations are
likely to damage the plaintiff’s reputation in his profession, trade or office.

18
See, e.g. 547F (Lord Keith of Kinkel).
19
Kaye, “Libel and Slander—two torts or one?” (1975) 91 LQR 524.
20
Du Bost v Beresford (1810) 170 ER 1235; Garbett v Hazell, Watson and Viney Ltd [1943] 2 All ER 359; Thaarup v
Hulton Press Ltd (1943) 169 LT 309; Dunlop v Dunlop [1920] 1 Ir R 280 (caricature) (cannot find this on
westlaw / lexis nexis); Monson v Tussauds Ltd [1894] 1 QB 671 (effigy); Tolley v JS Fry & Sons Ltd [1931]
AC 333 (advertisements); Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 (films).
21
Forrester v Tyrrell (1893) 9 TLR 257. See also Osborn v Thomas Boulter & Son [1930] 2 KB 226, 231, 236, 237,
Robinson v Chambers (No. 2) [1946] NI 148; Cf Longdon-Griffiths v Smith [1951] 1 KB 295.
22
See also s.31 of the Television Ordinance (Cap.52), to the same effect.
23
See Salmond & Heuston on the Law of Torts (21st edn, 1996), p 139; Cf Winfield and Jolowicz on Tort (15th edn,
1998); Street on Torts (10th edn, 1999), 451–452.
24
Nigel Smith v ADVFN Plc [2008] EWHC 1797 (QB), para 16 (Eady J).
25
The distinction, however, has been abolished in many jurisdictions – see Winfield & Jolowicz on Tort, 18th edn,
para 12-10 in n 51.
26
Cf Thorley v Kerry (1812) 4 Taunt 355, 354 where Sir James Mansfield CJ said an assertion “made in a public
place … may be much more extensively diffused than a few printed papers dispersed or a private letter.”
27
But the publication of a slander might have a very damaging effect even if it was to one person: e.g. Keith
Crossland v Wilkinson Hardware Stores Ltd [2005] EWHC 481.
28
Winfield & Jolowicz on Tort, 18th edn, para 12-5, referring to Jameel (Yousef) v Dow Jones & Co Inc [2005]
QB 946. The learned authors also referred to an example where a serious accusation of terrorism was made to
only two people in Noorani v Calver [2009] EWHC 561 (QB).
29
In Fung Tak Keung v Hiew Kwai Fook [2009] 4 HKC 432, Judge HC Wong dismissed the plaintiff’s claim on
slander without proof of special damage, where the words accused the plaintiff of a criminal act which at the most
was yet to be committed.

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 886 DEFAMATION

20.005 Practice and procedure. Order 82, RHC, provides for the practice and procedure
regarding defamation actions.30 Any endorsement of claim must include a statement
identifying the publication with sufficient particulars.31 There are special provisions
concerning payment into court,32 and in relation to mitigation of damages,33 as well as
the steps to be taken if an offer of amends has been accepted.34
20.006 Trial by jury. Section 33A(1) of the High Court Ordinance (Cap.4) provides that an
action for libel or slander shall be tried with a jury “unless the court is of 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”. There is a
discretion resting with the court as to whether there should be a trial by jury, although
the parties are by statute entitled to such a right in an action for defamation.35 In Beta
Construction Ltd v Channel Four Television Co Ltd36 the defendant admitted liability
in an action for libel, and applied for assessment of damages before a judge without a
jury. The judge gave judgment for the plaintiff and ordered damages to be assessed by
a judge alone. The plaintiff appealed against the order concerning the mode of trial.
The Court of Appeal, in dismissing the appeal, set out various factors affecting the
consideration as to whether a prolonged examination of documents or accounts could
not conveniently be made with a jury, including whether the number or complexity
of the documents would be such as to cause practical difficulties in examining or
understanding the documents in the confines of the jury box, and to render a jury trial
substantially more lengthy and costly than a trial by a single judge.37 Before striking
out any claim or granting summary judgment in a defamation case, the court should be
particularly aware that such action would deprive a party of a trial by jury.38
20.007 Judge and jury: “the ring fence”. The actual meaning of the words involved is within
the function of the jury to be decided as a matter of fact, whilst the consideration as
to defamatory meanings which the words the subject of the proceedings are capable
of bearing is a question of law for the judge.39 The judge must first decide whether the
words are capable of being understood in a defamatory sense, and in the affirmative
case, submit the meaning or meanings to the jury.40 In Peregrine Investments Holdings
Ltd v Associated Press41 Stone J observed:

30
See Hong Kong Civil Procedure 2004 (Vol 1), paras 82/01–82/8/1.
31
Rule 2. See also r.3, providing for the mode of giving particulars in relation to meaning and malice.
32
Rule 4.
33
Rule 7.
34
Rule 8.
35
Viscount De L’Isle v Times Newspapers Ltd [1988] 1 WLR 49 (CA).
36
[1990] 1 WLR 1042.
37
See, e.g. Goldsmith v Pressdram Ltd[1988] 1 WLR 64 (CA) (serious charges imputing criminal offences, and
disparaging the plaintiff’s honour and integrity did not in themselves suffice to justify a jury trial, but a case
involving national interest or security may be an exception). See also Kirby Harris v Baxter [1995] 3 All ER 615
(not sure which case it means: McDonald’s Corporation v Steel [1995] EMLR 527 OR Kirby-Harris v Baxter
[1995] EMLR 516), and McDonald’s Corporation v Steel (No. 4) (unrep., Independent, May 10, 1999).
38
Safeway Stores Plc v Tate [2001] QB 1120; Garry Mitchell v Editor of the Evening Chronicle [2003]
EWHC 1281.
39
See Keays v Murdoch Magazines (UK) Ltd [1991] 1 WLR 1184 (CA); Skuse v Granada Television Ltd [1996]
EMLR 278(CA).
40
Peregrine Investments Holdings Ltd v The Associated Press [1997] HKLRD 1073
41
[1997] HKLRD 1073.

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 GENERAL 887

“the task is to be approached on the basis of that which a judge should properly
leave to a jury, so that if the words are ruled to be capable of the meanings alleged,
it is for the jury to decide whether they in fact bear such meanings, or indeed any
other meanings … the judicial duty is to erect a notional ‘ring fence’ around the
meanings properly ascribed to the words complained of, so that those meanings
the words are not capable of bearing lie outside the fence perimeter, so to speak”.

Where a judge sits alone as the tribunal, the distinction seems academic, and the 20.008
correct approach is that there is no need to distinguish between meanings which words
are capable of bearing and the choice of the right meaning which they do bear.42
Pleadings. As a matter of law, a party who claims to have been defamed must specify 20.009
what he claims to be the defamatory words, what he claims are their natural and
ordinary meaning, and where applicable, what he claims are innuendo, and in what
way he claims they are defamatory of him, or the “defamatory sting”43. Nazareth VP
in Easy Finder Ltd v Oriental Daily Publisher Ltd 44 referred to Slim v Daily Telegraph
Ltd 45 and Gatley on Libel and Slander, and held that where a plaintiff has chosen
to plead a defamatory meaning, that defamatory meaning was the most injurious
meaning which the words were capable of bearing, and the plaintiff was estopped
from contending that the words bore a more injurious meaning. But a plaintiff was
not prevented from contending that the words nevertheless bore some other meaning
less injurious to the plaintiff’s reputation but still defamatory of him. Such a lesser
meaning had to be in the same class or range as the meaning pleaded, and not some
wholly different meaning.46
Further, if a defence of fair comment is raised, the requirements of O.82, r.3(2), RHC 20.010
must be complied with, namely, that where the defendant alleges that in so far as the
words complained of consist of statements of fact, they are true in substance and in
fact, and in so far as they consist of expressions of opinion, they are fair comment on
a matter of public interest. The defendant must give particulars stating which of the
words complained of he alleges are statements of fact and of the facts and matters he
relies on in support of the allegation that the words are true.47 For a plea of justification,
a defendant must set out what meaning he seeks to justify if he does not agree with the
plaintiff ’s pleaded meaning.48
Attempts are sometimes made to strike out, in plain and obvious cases, claims 20.011
that are bound to fail where the words complained of were incapable of bearing a

42
See Bokhary PJ in Next Magazine Publishing Ltd v Oriental Daily Publisher Ltd (2000) 3 HKCFAR 160,
endorsing the correct approach set out by Diplock LJ in Slim v Daily Telegraph Ltd [1968] 2 QB 157, 174G–175C.
43
Great East Asia Surveyors Consultants Co Ltd v Chan Kam Wai (unrep., CACV 197/2004, [2004] HKEC 1567)
(Yuen, JA), referring to Gatley on Libel and Slander, 10th edn.
44
[1998] 1 HKLRD 567.
45
[1968] 2 QB 157.
46
[1998] 1 HKLRD 567, 573I–574C.
47
Lam Yi Lai v Ip Kwok Chung (unrep., CACV 194/2009, [2010] HKEC 377) (CA) (Kwan JA).
48
Au Yee Ming Ivan v Ng Fei Tip (unrep., DCCJ 4595/2008, [2010] HKEC 1319), para 103 (Deputy Judge Yee);
Mak Shiu Tong v Yue Kwok Ying (2004) 7 HKCFAR 228, paras 18–24; Lucas-Box v New Group Newspapers Ltd
[1986] 1 WLR 147.

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 888 DEFAMATION

defamatory meaning.49 The approach is similar to that of making a no case submission

in defamation cases.50
20.012 Malicious falsehood. Malicious publication of a false statement to a third party
causing damage to the plaintiff is actionable as a separate tort from defamation. The
tort primarily protects property rights. The plaintiff must establish three elements, that
is to say that the statement was false, that it was published maliciously, and special
damage, that is to say financial loss, or that the statement is likely to cause financial
loss,51 unless the statement comes within s.24(1) of the Defamation Ordinance
(Cap.21), in particular that the statement is “published in writing or other permanent
form”. Section 24(1) provides:

“24. Slander of title, etc.

(1) In an action for slander of title, slander of goods or other malicious

falsehood, it shall not be necessary to allege or prove special damage-
(a) if the words upon which the action is founded are calculated to cause
pecuniary damage to the plaintiff and are published in writing or
other permanent form; or
(b) if the said words are calculated to cause pecuniary damage to the
plaintiff in respect of any office, profession, calling, trade or business
held or carried on by him at the time of the publication.”

20.013 The word “calculated” in s.24(1) refers to the likely effect of the statement, and not
the subjective intention of the defendant.52 Slander of title and slander of goods are
common examples of the tort of malicious falsehood. The former involves a statement
falsely denying a person’s title to certain property,53 whereas the latter involves a false
statement concerning the quality of the goods produced by another. This often involves
rival traders disparaging the goods of one or another.54 To claim that one’s infant food
was “far more nutritious and healthful than any other preparation” did not constitute
malicious falsehood as it is not unlawful to simply state that one’s goods are better

49
E.g. Ho Yuen Ki Winnie v Ho Hung Sun Stanley [2008] 4 HKC 544 (Poon J) (cannot find this in westlaw/lexis
nexis; found this in hklii.org). See also Wong Wing Ho v Chong Lai Wah [2008] 2 HKC 546, 13 Feb 2008 (CA),
where Cheung JA referred to, but did not adopt the same approach in Jameel (Yousef) v Dow Jones & Co Inc
[2005] QB 946 in which the court applied the proactive approach required by the overriding objective of the
English Civil Procedure Rules and struck out a statement of claim in a defamation action as an abuse of process.
This approach may however be revisited in light of the case management powers of the courts highlighted in the
Civil Justice Reform.
50
Wong Wing Ho, ibid., Morgan v Odhams Press Ltd [1971] 1 WLR 1239, Lord Morris at p 1251.
51
See, e.g. Joyce v Sengupta [1993] 1 WLR 337; Khodaparast v Shad [2000] 1 WLR 618.
52
Customglass Boats Ltd v Salthouse Brothers Ltd [1976] RPC 589; Stewart-Brady v Express Newspapers Plc
[1997] EMLR 192.
53
See, e.g. Amuse Hong Kong Ltd v Chan Kin Tim [1994] 1 HKLR 364 (involving an allegation that a music
publisher did not own the copyright in certain songs), and Hong Kong Wing On Travel Service Ltd v Hong Thai
Citizen Travel Services Ltd [2001] 2 HKLRD 481 (involving an allegation that the plaintiff was not authorised to
organise tours for a concert in Guangzhou).
54
E.g. Candace Guidance Signage Ltd v Halitech Tactile & Signage Co Ltd (unrep., HCA 138/2006, [2007]
HKEC 2070) (Recorder Fok SC).

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 GENERAL 889

than those of a rival.55 One must consider whether the ordinary reader would take the
statement seriously, or treat it as mere advertising “puff ”.56 Further, it is not malicious
falsehood to simply publish a false statement concerning the quality of one’s own goods
even if damage is caused to the plaintiff.57 Clearly distinct from defamation, there are
advantages to suing in malicious falsehood instead. Firstly, unlike in defamation, the
right to sue survives the death of the parties. Secondly, the plaintiff does not need
to establish that the statement is defamatory. But there may be a dispute as to the
meaning of the words in the statement, and the same rules of construction apply as
those in defamation.58 Thirdly, whilst there is no legal aid in defamation,59 it may be
available to a plaintiff in malicious falsehood.60
The Defamation Ordinance. The short title to the Defamation Ordinance (Cap.21), 20.014
enacted in 1887, states that the legislation is to “amend the law respecting defamatory
words and libel”. The statutory framework includes provisions for the offence of
criminal libel if one “maliciously publishes any defamatory libel, knowing the same
to be false”.61 Section 3 provides for the right of a defendant to adduce evidence in
mitigation of damages that he had made or offered an apology to the plaintiff. There
are other provisions offering statutory defences to an action for libel or slander,
including i) that a libel was inserted in a newspaper without actual malice and without
gross negligence, and that before the commencement of the action, or at the earliest
opportunity afterwards, the defendant has inserted in the newspaper a full apology;62
ii) that in an action for the publication or broadcasting of any extract from or abstract
of any report of the Legislative Council, it shall be a defence to show that the extract
or abstract was published bone fide and without malice;63 iii) that a fair and accurate
report in any newspaper or broadcast of proceedings publicly heard before any court
shall, if published contemporaneously with such proceedings, be privileged;64 and
(iv) that there is a defence of offer of amends under s.25, if the words were published
by the defendant innocently.65

55
Timothy White v Gustav Mellin [1895] AC 154. Cf De Beers Abrasive Products Ltd v International General
Electric Co of New York Ltd [1975] 1 WLR 972.
56
Vodaphone Group Plc v Orange Personal Communications Services Ltd [1997] EMLR 84; Timothy White v
Gustav Mellin [1895] AC 154; MacMillan Magazines Ltd v RCN Publishing Co Ltd [1998] FSR 9; DSG Retail
Ltd v Comet Group Plc [2002] FSR 58.
57
Schulke & Mayr UK Ltd v Alkapharm UK Ltd [1999] FSR 161.
58
Vodafone Group Plc v Orange Personal Communications Services Ltd, ibid.
59
Legal Aid Ordinance (Cap.91), Sch.2.
60
See, e.g. Joyce v Sengupta, ibid.
61
See s.5.
62
See s.4. The defendant cannot set up any such defence without at the same time making a payment of money into
court by way of amends: see the proviso to the section.
63
See s.12. See also ss.10 and 11 providing for the stay and determination of any action commenced relating to
the publication of any report of the Legislative Council upon proof that the report the subject of the proceedings,
whether criminal or civil, was published by order or under the authority of the Legislative Council (s.10), or that
a copy of such report was verified under oath (s.11). For the District Councils, see s.86 of the District Councils
Ordinance (Cap.547).
64
See s.13. This section, however, does not authorise the publication of any blasphemous or indecent matter
(see the proviso). See also s.14 providing for qualified privilege for the publication of any matters mentioned in
the Schedule to the Ordinance.
65
See subs (5) for the conditions to be satisfied in order to establish that the words, which were the subject of the
proceedings, were published innocently.

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 890 DEFAMATION

20.015 Elements of tort. There are three essential elements to the tort of defamation:
1) a defamatory statement; 2) which makes reference to the plaintiff; and 3) has been
published.66
20.016 Assent to publication. If the plaintiff assents expressly or impliedly to the publication
of the defamatory matter, the defendant will not be liable.67 In Tadd v Eastwood 68
the Court of Appeal held that a term giving assent to the publication of defamatory
allegations, or agreeing to refrain from proceedings in respect of such allegations
should be implied into an agreement if the agreement between the parties was otherwise
incomplete and that such a term was necessary for the efficacy of the agreement.

2. DEFAMATORY STATEMENTS
20.017 Whether statement defamatory. There are two general questions to be answered
before deciding whether a statement the subject of a defamation action is defamatory.
The first one is what meaning could be conveyed to an ordinary and reasonable person.
Secondly, the court has to consider whether that meaning is defamatory. There are
instances when there would be no doubt as to whether a statement is defamatory,
like when someone calls another a thief or adulterer, but if such remarks would have
been taken by the hearer as “mere abuse” and not seriously meant, it may not be
defamatory.69 Whilst it may be clear as to what is meant when someone is referred to
as “horrendously ugly”, it may be open as to whether such a statement is defamatory.70
The judge must direct the jury, or decide himself if sitting alone, as to whether the
statement or words are capable of being defamatory. Whilst a statement may not be
defamatory, an action in malicious falsehood may lie if it constitutes a deliberate lie,
or if it was negligently made, an action for negligence may be relied on if a duty
of care existed.71 In Lai Hing Tong v Attorney General,72 in an action for negligence
against the government, damages were awarded after the police negligently recorded a
conviction against an innocent man and as a result he lost a job. In general, a statement
may be defamatory in being calculated to hold the plaintiff up to “hatred, contempt,

66
See also Srivastava and Tennekone on The Law of Tort in Hong Kong; Rick Glofcheski on Tort Law in
Hong Kong.
67
Cookson v Harewood [1932] 2 KB 478; Chapman v Lord Ellesmere [1932] 2 KB 431, 451, 464–465; Cf Beevis v
Dawson [1956] 2 QB 165, 175; [1957] 1 QB 195 (CA); Stephenson v Donaldson & Sons (1981) 262 Estates
Gazette 148 (defendant estate agents and valuers exceeding authority granted to them by their client in relation
to statements made to the local council in the course of compulsory purchase negotiations). Moore v News of the
World Ltd [1972] 1 QB 441 (CA).
68
[1985] ICR 132 (CA).
69
Parkins v Scott (1862) 158 ER 839. See also Greville v Chapman, Henry Lamb and Thomas Lamb (1844)
144 ER 1425.
70
In Berkoff v Burchill [1997] EMLR 139, the plaintiff being director, actor and writer, was referred to as
“horrendously ugly”. The court held that the remarks gave the impression that the plaintiff was repulsive,
which lowered him in the eyes of the public. Cf Millet LJ, dissenting. See also Winyard v Tatler Publishing
Co, (unrep., Independent, Aug 16, 1991).
71
Lai Hing Tong v Attorney General [1990] 1 HKLR 56; Spring v Guardian Assurance Plc [1993] ICR 412.
72
[1990] 1 HKLR 56.

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 DEFAMATORY STATEMENTS 891

or ridicule”.73 But this test is not exhaustive. Whilst Lord Atkin in Sim v Stretch74
applied the test “would the words tend to lower the plaintiff in the estimation of right-
thinking members of society generally”, Neill LJ in Gillick v BBC considered whether
the words would be “likely to affect a person adversely in the estimation of reasonable
people generally”. But it is not defamatory to criticise a person of being an informant
in crime, as reporting crime is considered reputable behaviour by right-thinking
people generally, although acting as a police informant is objectionable to the criminal
classes.75 A statement may also be defamatory if it would cause the plaintiff to be
“shunned or avoided”.76 In considering whether a statement is capable of a defamatory
meaning, the court should give to the material in question its “natural and ordinary
meaning”.77
Not apparently defamatory: taking into account circumstances or “juxtaposition”. 20.018
Whilst words apparently defamatory may be proved to be understood in its innocent
meaning in the circumstances,78 words which are not apparently defamatory may
become so if the circumstances are taken into account.79 In Co80 the jury found the
statement that the male plaintiff gave “personalised massages” in his health spa was
defamatory, as in its ordinary and natural meaning the phrase meant he provided sexual
services. Statements as to conduct may be defamatory, but since certain conduct may
be viewed differently in different times;81 the relevant time in considering whether a
statement is defamatory is the time of publication.82 Further, a person may be defamed
by juxtaposition, where the circumstances in which the matter is exhibited makes it
defamatory. In Monson v Tussauds Ltd83 a wax figure resembling the plaintiff was
placed at the entrance to the “Chamber of Horrors” at Madame Tussauds. Dwek v
Macmillan Publishers Ltd84 is another example where the plaintiff was shown in a
photograph, sitting beside a known prostitute. It was held that the publication was
capable of being defamatory.

73
Parmiter v Coupland (1840) 6 M & W 105, 108 (Parke B); Cf Capital and Counties Bank Ltd v George Henty &
Sons (1882) LR 7 App Cas 741, 762.
74
(1936) 52 TLR 669, 671; followed by Holdsworth Ltd v Associated Newspapers Ltd [1937] 3 All ER 872, 880
(Scott LJ); Cf Sim v H J Heinz Co Ltd [1959] 1 WLR 313; see Skuse v Granada Television Ltd [1996] EMLR 278
(CA).
75
Mawe v Piggot (1869) Ir 4 CL 54. See also Berry v Irish Times [1973] IR 368, 813, 825; Cf Miller v David (1874)
LR 9 CP 118; Byrne v Deane [1937] 1 KB 818; and Lawson v Thompson (1969) 1 DLR (3d) 270.
76
Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581, 587.
77
Gillick v British Broadcasting Corporation [1996] EMLR 267; Skuse v Granada Television Ltd [1996]
EMLR 278; Nam Tai Electronics Inc v Pricewaterhouse Coopers (unrep., HCA 6783/2000, [2005] HKCU 170)
Waung J.
78
Hankinson v Bilby (1847) 153 ER 1262 (a case of slander).
79
See, e.g. Morrison v Ritchie & Co (1902) 4 F 645; Cf Wood v Edinburgh Evening News Ltd, 1910 SC 895. See
also Australian Newspaper Co Ltd v Bennett [1894] AC 284; Cf Gwynne and Small v Wairarapa Times-Age Co
[1972] NZLR 586.
80
Independent, Aug 16, 1991 (CA).
81
See Quilty v Windsor 1999 SLT 346 (an allegation of homosexuality is not necessarily defamatory); Cf John
Reynolds v Malocco [1990] 1 IRLM 289; and R v Bishop (1975) QB 274.
82
Mitchell v Faber & Faber Ltd [1998] EMLR 807.
83
[1894] 1 QB 671; Cf Garbett v Hazell, Watson and Viney Ltd [1943] 2 All ER 359 (CA); Wheeler v Somerfield
[1966] 2 QB 94 (CA).
84
[2000] EMLR 284.

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 892 DEFAMATION

20.019 Examples of defamatory statements. The following are examples of statements that
are likely to be defamatory.
20.020 Criminal association. To allege that a person has committed a crime is highly likely
to be defamatory. To impute a suspicion of a person having committed a crime may
be libellous,85 but it may be easier to justify.86 An allegation that a man has brought
a suit with a view to blackmail is defamatory.87 Whilst it may not be defamatory to
allege that someone has been guilty of a minor offence involving no real blame,88 the
suggestion that a plaintiff had been driving negligently on a public highway had been
held to be defamatory.89 There can now be three possible levels of defamatory meaning
with imputations of wrongdoing or the commission of a criminal offence: (1) that a
person has committed an offence, (2) that there are reasonable grounds to suspect
that he has committed an offence, and (3) that there are grounds for investigation into
whether he has committed the offence.90 The imputation that a person has committed,
or is suspected of, a crime must be sufficiently clear.91
20.021 Banter or ridicule. In Li Yau Wai v Genesis Films Ltd92 the plaintiff succeeded in a
defamation claim where his photograph was featured in a film as the dead husband
of a character, kept in an ancestral shrine in her living room, and where the “son” in
the film had accused his “father” of not returning to visit his wife in erotic dreams.
Rhind J said that a person may be exposed to light-hearted banter without defamation
becoming present, but “[w]here exposure to innocent banter ends and ridicule of a type
giving rise to defamation begins is a question of degree and depends on context and
circumstances”. This is in line with Lord Atkin’s statement in Sim v Stretch that “the
protection [of reputation in defamation] is undermined when exhibitions of bad manners
or discourtesy are placed on the same level as attacks on character and are treated as
actionable wrongs”.93 Exposing a person to mere ridicule may not be defamatory, but
if the plaintiff is exposed to ridicule of sufficient magnitude, defamation can occur.94
The publication of the name of a person or his photograph in an advertisement in
such a way as to induce the public to believe that that person recommends the article
advertised,95 or to depict a person in a cartoon could be defamatory.96 In Berkoff v

85
Monson v Tussauds Ltd [1894] 1 QB 671. See also Rubber Improvement v Daily Telegraph Ltd, ibid.
86
Rubber Improvement v Daily Telegraph Ltd, ibid. See also Leon v Edinburgh Evening News Ltd 1909 SC 1014;
Cadam v Beaverbrook Newspapers Ltd [1959] 1 QB 413 (the question whether a true statement that a charge has
been made or a writ issued can be defamatory discussed).
87
Marks v Samuel [1904] 2 KB 287.
88
Berry v British Transport Commission [1961] 1 QB 149.
89
Groom v Crocker [1939] 1 KB 194.
90
See, e.g. Jameel v Times Newspapers Ltd [2004] EMLR 31; Jameel v The Wall Street Journal Europe Sprl [2004]
EMLR 6.
91
Mapp v News Group Newspapers Ltd [1998] QB 520.
92
[1987] HKLR 711.
93
(1936) 52 TLR 669, 672.
94
Cook v Ward (1830) 6 Bing 409. See also Vander Zalm v Times Publishers (1980) 18 CLR 210, Blennerhasset v
Novelty Sales Services Ltd (1933) 175 LTJ 393.
95
Clarke v Freeman (1848) 11 Beav 112; Dockerell v Dougall (1899) 80 LT 556. Cf Ridge v English Illustrated
Magazine Ltd (1913) 29 TLR 592 (well-known writer’s name appended to story of which he was not the author).
Publishing a photograph claiming to be a likeness was not defamatory: Corelli v Wall (1906) 22 TLR 532; Sim v
H J Heinz & Co Ltd [1959] 1 WLR 313.
96
Tolley v JS Fry & Sons Ltd [1931] AC 333 (complaint that cartoon exposed the plaintiff to ridicule).

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 DEFAMATORY STATEMENTS 893

Burchill97 the plaintiff, a director, actor and writer, was stated to be “horrendously
ugly”. The court held that the remarks gave the impression that the plaintiff was not
only unattractive in appearance, but actually repulsive, which at least in view of his
living as an actor, lowered him in the eyes of the public.98 However, in Norman v
Future Publishing99 the judge ruled that the publishing of an anecdote which attributed
a remark referring humorously to the size of a famous singer was not defamatory, and
the ruling was upheld on appeal as the words were said to show that the singer was
dignified and had a self-deprecating sense of humour, and that the overall tenor of the
article was admiring.
Imputation of insolvency. To allege that someone is insolvent is likely to be 20.022
defamatory, though such an allegation may not carry any moral blame. In Kiam v Neil
(No. 2)100 the Court of Appeal reiterated the seriousness with which the courts view
such allegations. It may be argued that to allege insolvency of a non-trader may not
be defamatory,101 but to write of a solicitor holding public office that he is “cleaned
out” is defamatory as it may injure his credit and reputation.102 In Aspro Travel Ltd v
Owners Abroad Group Plc103 the Court of Appeal held that the statements “they
are going bust” and “they will be bankrupt in a few days” could be defamatory as
they might imply that the plaintiffs were prepared to run an insolvent company, thus
lowering their standing in the eyes of the public. It is not, however, defamatory to say
that someone owes a debt, without stating or implying that he is avoiding or delaying
payment, or is unable to pay.104
Imputation affecting profession or employment. Statements may disparage a person 20.023
in his profession or employment, calling or office, and hence defamatory.105 To be
defamatory, however, the words must reflect on the personal character, or on the official,
professional or trading reputation of the plaintiff.106 An imputation of insolvency107 is
defamatory if made with reference to the plaintiff’s trade or calling. A false accusation
that someone is guilty of insider dealing was defamatory,108 as was publishing an article
with the false accusation that a person in a high position in a company which dealt with
financial security services was engaging in money laundering to advance one’s own

97
Ibid.
98
Millet LJ dissenting.
99
[1999] EMLR 325.
100
[1996] EMLR 493.
101
Cf Cox v Lee (1868–69) LR 4 Ex 284, 288 (Kelly CB).
102
AB v CD (1904) 7 F 22, 25 (Lord MacLaren).
103
[1996] 1 WLR 132.
104
Winstanley v Bampton [1943] KB 319. See also: Stubbs Ltd v Russell [1913] AC 386 (statement that judgment
had been entered against the plaintiff). The words “refer to drawer” written on a cheque are also capable of being
defamatory: Jayson v Midland Bank Ltd [1968] 1 Lloyd’s Rep 409.
105
Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 (critic); Greenslade v Swaffer [1955] 1 WLR
1109 (journalist); Drummond-Jackson v British Medical Association [1970] 1 WLR 688 (dentist); Mutch v
Robertson, 1981 SLT 217. See also: per Capital and Conties Bank Ltd v George Henty & Sons (1881–82) LR 7
App Cas 741, 771 (Lord Blackburn).
106
Drummond-Jackson v British Medical Association [1970] 1 WLR 688, 698 (CA) (Lord Pearson). Cf Ratcliffe v
Evans [1892] 2 QB 524. See also John Fairfax Publications Pty Ltd v Gacic [2007] 230 CLR 291.
107
Read v Hudson (1700) 91 ER 1308; Jones v Littler (1841) 151 ER 831; Jones v Jones [1916] 2 AC 481
(imputation of insolvency of a trader). Also Aspro Travel Ltd v Owners Abroad Group Ltd [1996] 1 WLR 132.
108
Dicta in Next Magazine Publishing Ltd v Ma Ching Fat (2003) 6 HKCFAR 63.

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 894 DEFAMATION

wealth.109 Likewise, publishing a statement that accuses a solicitor of absconding with

client funds110 or publishing a grossly misleading statement that a senior solicitor was
unfit to represent the stock-broking industry111 are defamatory. Finally, alleging that
the head of department at a university had mismanaged the department by exploiting
staff and misleading authorities is defamatory.112 If a retired solicitor was criticised
as lacking in integrity, or of carrying out “sharp practice” in his profession, he is not
libelled as a solicitor as he has ceased to be one, but he may be libelled as a person
for he is accused of dishonesty.113 Difficulty may arise if the allegation is directed to
one’s competence, rather than integrity. It is defamatory to allege that someone is
incompetent or negligent in his profession or trade114 but it will not be defamatory
of a trader if the statement relates solely to his goods.115 But an attack on a thing
may reflect on a person and become defamatory, for instance if someone is alleged to
be habitually selling worthless goods116 but it is not defamatory to say that a certain
article in stock is worthless.117 Criticisms of the techniques of a professional may
amount to defamation.118 The allegation must be essential the absence of which would
affect successful practice of the trade, profession or calling, and since it is not essential
to be the “best” to be successful, allegations that someone is of “average ability” or
lacking in prominence is not defamatory.119
20.024 Repetition of rumour or hearsay. Repetition of any defamatory rumour or hearsay
is not any less culpable as defamation.120 A defendant cannot exonerate himself by
qualifying his libellous or slanderous statement with a statement that it is hearsay, that
he has simply been informed as such.121
20.025 Where language used not clear. In cases where the language used is clear, there
would be much less difficulty in determining whether it carries a defamatory meaning.
Where the words do not speak for themselves, the plaintiff must establish the gloss

109
Li Wei v Brightec Ltd (unrep., HCA 4430 /2000, [2001] 1 HKLRD (Yrbk) 615).
110
Chu Siu Kuk Yuen v Apple Daily Ltd [2002] 1 HKLRD 1.
111
Sin Cho Chiu v Tin Tin Publication Development Ltd (unrep., HCA 6662/1997, [2002] 1 HKLRD (Yrbk) 560,
[2002] HKEC 50).
112
Drummond v Kwaku [2000] 1 HKLRD 604.
113
Boydell v Jones (1838) 4 M & W 446, 450 (Parke J).
114
Skuse v Granada Television Ltd [1996] EMLR 278; Slipper v British Broadcasting Corporation [1991] 1 QB
283; Blackshaw v Lord [1984] QB 1.
115
South Hetton Coal Co Ltd v North Eastern News Association [1894] 1 QB 133 (Lord Esher MR). See also:
Dr Mervyn Patterson v ICN Photonics Ltd [2003] EWCA Civ 343.
116
Australian Newspaper Co Ltd v Bennett [1894] AC 284.
117
Evans v Harlow (1844) 114 ER 1384; approved by Lord Herschell LC in Timothy White v Gustav Mellin [1895]
AC 154, 161; and Linotype Co v British Empire Type-Setting Machine Co Ltd (1899) 81 LT 331 (HL).
118
See, e.g. Drummond-Jackson v British Medical Association [1970] 1 WLR 688 (a dentist criticised in relation to
a special technique).
119
Thompson v Matthiasen (1912) 150 AD 739.
120
Littledale J said in M’pherson v Daniels (1829) 10 B & C 263, 272: “Now a defendant by showing that he
stated at the time when he published slanderous matter of a plaintiff that he heard it from a third person, does
not negative the charge of malice, for a man may wrongfully and maliciously repeat that which another person
may have uttered upon a justifiable occasion”. Quoted by Blackburn J with approval in Watkin v Hall (1867–68)
LR 3 QB 396, 400.
121
See Harrison v Thornborough (1713) 10 Mod 196; M’Pherson v Daniels (1829) 10 B & C 263; Watkin v Hall
(1867–68) LR 3 QB 396; Botterill v Whytehead (1879) 41 LT 588; Cadam v Beaverbrook Newspapers Ltd [1959]
1 QB 413; Rubber Improvement v Daily Telegraph Ltd [1964] AC 234; Truth (NZ) Ltd v Philip North Holloway
[1960] 1 WLR 997 (PC). See also Shah v Standard Chartered Bank [1999] QB 241.

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 DEFAMATORY STATEMENTS 895

or innuendo upon them necessary to prove the defamatory meaning. In cases of

foreign language, technical language or slang, they must be properly translated,
where appropriate, by suitable expert evidence into plain language.122 In Hong Kong,
if proceedings are conducted in English, words forming the subject of the action in
Chinese would be treated as innuendo, and have to be translated. One example is Yung
Chi Kin v Leung Tin Wai123 where it is alleged that the words “more savage than Wah
Sau’s dog”, when used to describe a person, are known generally and colloquially in
Cantonese in Hong Kong as representing savage and recklessly aggressive behaviour.
Where it is alleged that a special defamatory meaning of the words arise by reason of
special, extrinsic facts known to the recipients, it is called a true or legal innuendo,
which creates a separate cause of action from a cause of action arising from the ordinary
and natural meaning of the words used, and particulars are required under O.82, r.3.
On the other hand, “popular innuendoes”, otherwise known as “false innuendoes”,
which are meanings commonly known or inferred from words in their ordinary and
natural meaning do not require particulars and do not constitute a separate cause of
action.124 In the words of Liu JA in Beijing Television v Brightec Ltd:125

“Defamatory words may have innuendoes or indirect meanings in two senses:

first, in additional to their nature and ordinary meaning, they may have secondary
meanings; these are called popular innuendoes. But if an indirect defamatory
meaning only arises because there are other facts known to a class of the recipients,
that is called a legal innuendo. Legal innuendoes are, therefore, founded on
extrinsic facts to import an additional or altered meaning of the published words.
They would depend on facts falling outside the alleged libel. Lord Denning MR
described these two forms of indirect meanings with usual clarity in Fullam v
Newcastle Chronicle and Journal Ltd [1977] 1 WLR 651 at 645H–655D. The
Master of the Rolls spoke of legal innuendoes as giving rise to separate and
distinct causes of action.”

Approach. There are two rules to be observed in construing the language of an alleged 20.026
libel. First, the whole matter relating to the same defamatory allegation is to be taken
into account,126 and the plaintiff is not allowed to rely on one or two sentences only to
prove the defamation,127 for there may be other parts in the publication which takes
away the sting. It is for the jury to decide whether taking the publication as a whole
it is injurious to the plaintiff.128 The second rule is that the words should be taken in
their most natural and obvious sense129 and that the ordinary and natural meaning of

122
Fleetwood v Curle (1620) Hob 267, 268 (Lord Hobart).
123
[1993] 1 HKC 143.
124
Ibid; Slim v Daily Telegraph Ltd [1968] 2 QB 157 (CA).
125
[1999] 2 HKC 665.
126
Broome v Agar (1928) 44 TLR 339, 341 (Scrutton LJ); Hayward v Thompson [1982] QB 47 (CA). See also
Peregrine Investments Holdings Ltd v The Associated Press [1997] HKLRD 1073.
127
See, e.g. Nam Tai Electronics Inc v Pricewaterhouse Coopers (unrep., HCA 6783/2000, [2005] HKCU 170)
(Waung J) (a case involving a statements made in a proposal to creditors by potential liquidators of a company).
128
Australian Newspaper Co v Bennett [1894] AC 284, 288; Plato Films Ltd v Speidel [1961] AC 1090; Grubb v
Bristol United Press Ltd [1963] 1 QB 309 (CA); S & K Holdings v Throgmorton Publications Ltd [1972] 1 WLR
1036 (CA).
129
Chalmers v Payne (1835) 150 ER 67.

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 896 DEFAMATION

the words, including any implication or inference which a reasonable reader guided
not by any special but only by general knowledge and not fettered by any strict rules of
construction would draw from the words. The test of reasonableness guides the court
in deciding whether it is open in any particular case to hold that reasonable persons
would understand the words in any defamatory sense.130
20.027 In Charleston v News Group Newspapers Ltd131 the House of Lords reaffirmed that,
in the absence of innuendo, the meaning of the statement is that which would be
conveyed to the ordinary, reasonable and fair-minded reader. The court also refused to
accept that readers of a publication could be differentiated into categories leading to a
possibility that a statement could be regarded as defamatory to one group.
20.028 Ambiguous language. A statement may be equally capable on the face of it of
two meanings, one defamatory and the other innocent. Where the language of the
statement is ambiguous, the plaintiff should plead the alleged defamatory meaning
the words carry. He should do so notwithstanding that all the possible interpretations
are defamatory so as to define the precise issues at trial. Where other non-defamatory
meanings are available, the court should not be too ready to lean towards one adverse
meaning.132
20.029 Words capable of several meanings. In Rubber Improvement v Daily Telegraph Ltd 133
the defendants published a statement that the Fraud Squad of the City of London
Police were inquiring into the affairs of the plaintiff’s firm. The House of Lords held
that the statement was capable of bearing the meaning that the police suspected that
the affairs of the plaintiff’s firm had been conducted fraudulently. It was also held that
it was the duty of the judge to rule whether the words were capable of bearing any
or all of the various meanings put forward by the plaintiff as part of the natural and
ordinary meaning of the statement.134 It is within the jurisdiction of the court to order
the trial of a preliminary issue to determine whether the words used are capable of
bearing a defamatory meaning.135 The finding of any defamatory meanings which the
words used are capable of bearing is a question of law for the judge, and the finding
relating to any particular defamatory meaning the words bear is a question of fact.136

130
Per curiam, Harrison v Thornborough (1713) 10 Mod 196, 198; see Roberts, one & Co v Camden (1807) 104
ER 508; Hankinson v Bilby (1847) 153 ER 1262; Capital and Counties Bank Ltd v George Henty & Sons, ibid.;
Morris v Sanders Universal Products [1954] 1 WLR 67.
131
[1995] 2 AC 65.
132
Hartt v Newspaper Publishing (No. 1), Times, 9 Nov 1989 (CA). In Yu Ming Investment Ltd v Peng Ru Chuan
Richard (unrep., HCA 814/2002, [2005] HKEC 677) (Chung J), the court accepted the contention that it was
unknown if the words spoken in a very brief exchange between the defendant and another were related to the
plaintiff’s competence (or ability), reputation (or standing) or credibility, as a result of which the court found that
the words did not bear any defamatory meaning.
133
[1964] AC 234, [1963] CLJ 201. Applied in Ainsworth Nominees Pty Ltd v Hanrahan [1982] 2 NSWLR 823.
Distinguished in Hyams v Peterson [1991] 1 NZLR 711 (statement containing words of suspicion could amount
to an imputation of guilt).
134
Ibid. And see Gordon Berkeley Jones v Clement John Skelton [1963] 1 WLR 1362, 1370–1372; Slim v Daily
Telegraph Ltd [1968] 2 QB 157 (CA); Bookbinder v Tebbit [1989] 1 WLR 640, 646–648 (CA).
135
Keays v Murdoch Magazines (UK) Ltd [1991] 1 WLR 1184 (CA).
136
Slim v Daily Telegraph Ltd, ibid.; Morgan v Odhams Press Ltd [1971] 1 WLR 1239 (HL). As to the discharge of
the jury in the course of the trial, see Gee v BBC, (unrep., Times, 26 Nov 1987).

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 REFERS TO PLAINTIFF 897

The innuendo. Language defamatory on its face poses no difficulty to the plaintiff in 20.030
proving his case. He does not prove his case, however, if the language is ambiguous,
and if it is equally consistent with an innocent meaning, and that what is proven is no
more than conjecture.137 In order to succeed, the plaintiff must present additional facts
and circumstances to establish the meaning he relies upon. This, a gloss on the words
used, amounts to a true innuendo. This is generally pleaded in the form of the phrase
“meaning thereby”, particularising how that meaning is arrived at and the relation of
the words to the plaintiff.138 A true innuendo is thus an innuendo by which the plaintiff
says a special defamatory meaning of the words distinct from their ordinary meaning
and arising by reason of surrounding facts or circumstances known to the recipients
has been attached to those words.139 A true innuendo constitutes a separate cause of
action from any cause of action arising from the words in their ordinary meaning and
requires particulars.140 The innuendo must be specific, referable to a special meaning
which is actionable.141 Ironical words may be used exactly opposite to their natural
meaning,142 and may carry an imputation that is altogether unconnected with their
apparent meaning.143

3. REFERS TO PLAINTIFF
General. It is essential for the plaintiff to establish by evidence that the words 20.031
complained of were published “of and concerning” him. Where he was referred
to by name, there was no problem. However, where this was not the case, it was a
question of degree how far evidence would be required to connect the libel with him.
If, for instance, the article referred to the holder of a public office whose identity
was notorious to the public, or the chairman of a well-known company, there was
no need to produce evidence at trial to prove this. At the other extreme, the plaintiff
might only be identifiable by extraneous facts which were not generally well known,
in which case there was no actionable publication unless it was shown that the words
were communicated to persons with such knowledge.144 In Dr Ki Pink Ki v Next
Magazine Publishing Ltd145 the plaintiff, a sole-proprietor of company, was not named
in an article that alleged that the company had placed an advertisement that set out
an address which bore the nameplate of another company. It was held that extraneous
facts were required to connect the plaintiff with the company; although the company’s
business registration records were open to public search, this did not mean that the

137
See, for this principle, Phillipson v Hayter (1870–71) LR 6 CP 38, where Willes J at 43 quoted Cresswell J
in Avery v Bowder (1856) 6 E & B 953, 974. Pyke v Hibernian Bank Ltd [1950] IR 195, 212–213 (Black J)
(difference between “conjecture” and “reasonable inference”).
138
But see Morgan v Odhams Press Ltd [1971] 1 WLR 1239 (HL).
139
Rubber Improvement v Daily Telegraph Ltd [1964] AC 234; Slim v Daily Telegraph Ltd [1968] 2 QB 157 (CA);
Hyams v Peterson [1991] 1 NZLR 711. See also Beijing Television v Brightec Ltd, ibid.
140
O 82, r.3, RHC.
141
Cox v Cooper (1863) 12 WR 75; Jacobs v Schmaltz (1890) 62 LT 121.
142
Cf Cox v Cooper, 75, ibid.
143
Arne v Johnson (1712) 88 ER 651.
144
As per A Cheung J’s summary in Dr Ki Ping Ki v Next Magazine Publishing Ltd (unrep., HCA 4173/2001, [2004]
1 HKLRD B21).
145
(Unrep., HCA 4173/2001, [2004] 1 HKLRD B21).

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 898 DEFAMATION

identity of its proprietor was, as a matter of fact, known to the general public; and on
the evidence, it had not been proved that the article was communicated to persons with
knowledge of such extraneous facts.146
20.032 Defamation of a class. In Sin Cho Chiu v Tin Tin Publication Development Ltd147 a
newspaper had commented that most of the approximately 20 members of a certain
delegation of “elders of the securities industry” to Beijing were “tainted elements” with
a background that would be described as “tainted”. The court ruled that the relevant
article in the newspaper contained internal references to the plaintiff, which could be
understood to identify the plaintiff as one of the “tainted elements”.148 The judgement
of Lord Atkin in the House of Lords decision in Knupffer v London Express Newspaper
Ltd149 was endorsed in Sin Cho Chiu. The most important question, referred to by Lord
Atkin to be “the only relevant rule”, is whether the words were published “of and
concerning the plaintiff ”, that is to say, pointing at or referring to him personally.150
No individual could normally say that a defamatory statement is spoken of him if the
statement is directed to a class.151 The reason lies in the difficulty of establishing that
the plaintiff was included in the defamatory statement if the statement is published
of a large or indeterminate number of persons.152 A defamatory statement made of a
firm, or trustees, or the tenants of a particular building is actionable by individuals of
such limited classes if the words would reasonably be understood as published of each
member of that class.153

4. PUBLICATION
20.033 General. A plaintiff must prove that the libel or slander has been published,154 that is
to say communicated by the defendant to another person other than the plaintiff. An
agent procuring the publication of a defamatory matter will not affect the defendant’s
liability.155 And, spouses are treated as one and no publication will be regarded as

146
For the question whether a defamatory statement was referable to the directors of a company, see also Aspro
Travel Ltd v Owners Abroad Group Plc [1996] 1 WLR 132.
147
Ibid.
148
See also Joseph Le Fanu v Joseph Malcomson (1848) 9 ER 910; Orme v Associated Newspapers Group Ltd, The
Times, 4 February 1981.
149
[1944] AC 116, 121–122. Applied in Shloimovitz v Clarendon Press, (unrep., The Times, 6 July 1973). See also Booth
v British Columbia Television Broadcasting System Ltd (1982) 139 DLR (3d) 88; Church of Scientology of Toronto v
International News Distributing Co (1974) 48 DLR (3d) 176; and Farrington v Leigh, The Times, 10 December
1987 (CA).
150
See also Orme v Associated Newspapers Group Ltd, above; Cf Braddock v Bevins [1948] 1 KB 580, 588–589.
151
See Lord Porter in Knupffer v London Express Newspaper Ltd, ibid., 124. Willes J said in Eastwood v Holmes
(1858) 1 F & F 347, 349: “If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless
there was something to point to the particular individual”. See also Electrical, Electronic, Telecommunication
and Plumbing Union v Times Newspapers Ltd [1980] QB 585.
152
Knupffer v London Express Newspaper Ltd [1944] AC 116, 124 (Lord Atkin).
153
Ibid., 121–122. See also Browne v Thomson & Co 1912 SC 359; Faxcroft v Lacy (1613) Hob 89.
154
Wesson v Campbell River & District (Pacific 317) Branch of Royal Canadian Legion (1985) 63 BCLR 327
(British Columbia); Bata v Bata [1948] WN 366; Cf Kroch v Rossell et Compagnie Societe Des Personnes a
Responsibilite Ltd [1937] 1 All ER 725; Jenner v Sun Oil Co Ltd [1952] OR 240 (Can).
155
King v Waring et Ux (1803) 170 ER 721; Duke of Brunswick v Harmer (1850) 14 QB 185, 189. But damages may
be affected if the plaintiff deliberately invited or incited the publication; Cf Beevis v Dawson [1956] 2 QB 165,
175, [1957] 1 QB 195, CA (point not dealt with).

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 PUBLICATION 899

made between them concerning a third person,156 but the defamatory matter could be
published to the spouse of the person the subject of the defamation.157 Nowadays there
is potentially a difficult case for internet service providers in monitoring what are
posted on bulletin boards on the internet, as people may find it easy to post messages
on the internet that may carry defamatory meanings. One example of an action in
Hong Kong relating to defamatory emails is Drummond v Kwaku158 where, however,
only the writer was sued, and liability was found.
Prima facie evidence. In most cases publication is prima facie proven, if it is clear as 20.034
a reasonable inference that such was the case, like for instance where the defendant
has posted a letter,159 and the circulation of a book containing defamatory matter.160
The printing of a libellous matter is obviously a publication to the employees of
the printer.161 But if there is evidence that the person to whom the publication was
allegedly made was not aware of the same, the prima facie case of publication may be
rebutted.162
Publication can be negligent. A defendant is liable for intentional or negligent 20.035
publication. A person intending to issue a defamatory document or negligently allows
it to be published would be prima facie publishing the document. If the defendant
is unaware of, and has no reasonable means of knowing, as well as under no legal
obligation to know the nature of the document, he will not be regarded as having
published the libel. Thus, for example, the postman who delivers a defamatory letter
without knowing its contents is not answerable. A person acting as a mere vehicle of
communication may not be liable.163 If a letter was stolen and published by the person
stealing the letter, the writer would not be liable,164 unless in the circumstances the
sender knew or ought to know that the letter would likely be read by some other person
other than the addressee.165 If the writer wishes to have protection, he should write
the word “private” on the envelope.166 Where the defendant has no knowledge of the
possibility of the publication he is not liable if it takes place.167

156
Wenhak v Morgan (1888) 20 QBD 635; aliter, after divorce, Cf Capal v Powell (1864) 29 JP 8, or judicial
separation; Cf Cuenod v Leslie [1909] 1 KB 880. And see Robinson v Robinson (1897) 13 TLR 564 (Kennedy J).
157
Wenman v Ash (1853) 138 ER 1432; Cf Praed v Graham (1890) LR 24 QBD 53; Cf Watt v Longsdon [1930]
1 KB 130.
158
[2000] 1 HKLRD 604. See also Godfrey v Demon Internet Ltd [2001] QB 201, where Moreland J at 348A–F
stated the re-publication principle in the context of the internet.
159
Warren v Warren (1834) 1 CM & R 250; Williamson v Freer (1873–74) LR 9 CP 393; Sadgrove v Hole [1901]
2 KB 1; Cf Huth v Huth [1915] 3 KB 32.
160
Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170.
161
Per curiam, Baldwin v Elphinston (1775) 2 WBl 1037, 1038. See, however, per curiam, Watts v Fraser (1837)
7 A & E 223, 233) Cf Eglantine Inn Ltd v Smith [1948] NI 29.
162
Clutterbuck v Chaffers (1816) 171 ER 533. Cf Huth v Huth [1915] 3 KB 32, 39. And see Bata v Bata (1948)
WN 36. On the other hand, though there is no presumption that publications on the internet have been read, where
there is evidence of the number of times a website had been accessed, this may justify a finding that the material
published had been read by a significant number of people: Al Amoudi v Brisard [2007] 1 WLR 113.
163
Day v Bream (1837) 174 ER 212; Cf Emmens v Pottle (1885–86) LR 16 QBD 354, 357.
164
Pullman v Water Hill & Co [1891] 1 QB 524, 527.
165
Ibid., Cf Gomersall v Davies (1894) 14 TLR 430.
166
Per Lopes LJ in Pullman v Water Hill & Co, ibid., 529.
167
Sharpe v Skues (1909) 25 TLR 336; Powell v Gelston [1916] 2 KB 615.

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 900 DEFAMATION

20.036 Republication. The original publisher may be liable for the republication if: a) he
authorised or intended the re-publication; b) the person to whom the original publication
was made was under a duty to repeat the libellous statement; and c) the re-publication
was, in the circumstances of the case, the natural and probable result of the original
publication, with “natural and probable” being co-terminous with “foreseeability”.168
In Tang Chui Yuk v Hung Ka Chuen169 radio broadcasts made false accusations of incest
and adultery against a well-known entertainer, and these accusations were re-published
by newspapers. The original publisher was held liable for the re-publication as it was a
“natural and probable consequence” of the original publication as the libel contained
serious and sensational allegations of a well-known entertainer in Hong Kong.
20.037 Joint publication. The publication of a libel may be a joint tort, especially where the
publication is contained in a book, involving the composition, printing, and distribution
of the books.170 Slander may also be a joint tort, if the slander is committed by a person
after collaboration with another or is procured by such other person, e.g. an employer.
But different persons publishing the same defamatory matter at the same time would
not be regarded as joint tortfeasors, although they may be sued together.171 Although
a defendant is not generally liable for an unauthorised repetition of a defamatory
matter,172 he may be held responsible for the republication by a person who is under a
moral obligation to repeat it to someone else.173
20.038 Distributors. Those merely involved in the mechanical distribution of materials
(e.g. newspapers and periodicals) may have a defence at common law of innocent
dissemination if they can show that they were innocent of knowledge of any libel
contained in the materials, and that there were no circumstances that ought to have led
them to suppose the materials contained a libel.174 The common law position has been
superceded by s.1 of the Defamation Act 1996,175 but the correct view seems to be that
this common law defence has not have been abolished in England.176

5. DEFENCES
(a) Generally

20.039 When a plaintiff has proved a prima facie case against the defendant, consisting of a
publication of defamatory material, at common law the defendant may put forward

168
Tang Chui Yuk v Hung Ka Chuen [2000] 2 HKLRD 56. The plaintiff may sue for the original publication but
claim damages in respect of further loss caused by the republication: e.g. Baturina v Times Newspapers [2010]
EMLR 18 (QB). The question of such further loss seems to be one of foreseeability of damage.
169
[2000] 2 HKLRD 56.
170
See Cutler v McPhail [1962] 2 QB 292; and Riddick v Thames Board Mills Ltd [1977] QB 881.
171
Chamberlain v White and Goodwin (1622) 79 ER 558; Coryton v Lithebye (1671) 85 ER 814. See also Thomas v
Moore [1918] 1 KB 555.
172
Ward v Weeks (1830) 131 ER 81; approved in Clarke v Morgan (1877) 38 LT 354 and in Weld-Blundell v Stephens
[1920] AC 956.
173
Derry v Handley (1867) 16 LT 263. The rule may extend to social and legal obligations as well. See Riddick v
Thames Board Mills Ltd [1977] QB 881, 900 (Stephenson LJ), and 909 (Waller LJ).
174
Vizetelly v Mudie’s Select Library Ltd [1990] 2 QB 170; Sun Life Assurance Co of Canada v WH Smith & Son Ltd
(1934) 150 LT 211.
175
Section 1 of the Act has not found its place in the Defamation Ordinance in Hong Kong.
176
See Metropolitan International Schools Ltd v DesignTechnica Corp [2010] 3 All ER 548, para 70 (Eady J).

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 DEFENCES 901

defences of: 1) justification; 2) privilege, which may be: a) absolute; or b) qualified;

or 3) fair comment.
Other statutory defences. There are a number of other defences provided by statute. 20.040
These are predominantly for the benefit of the press. One example is s.4 of the
Defamation Ordinance which provides:

“In an action for a libel contained in any newspaper it shall be competent to the
defendant to set up as a defence that the libel was inserted in the newspaper without
actual malice and without gross negligence, and that before the commencement of
the action, or at the earliest opportunity afterwards, he inserted in the newspaper
a full apology for the libel, or if the newspaper in which the libel appeared is
ordinarily published at intervals exceeding 1 week, had offered to publish the
said apology in any newspaper to be selected by the plaintiff in the action: and to
such defence to the action it shall be competent to the plaintiff to reply generally
denying the whole of such defence:
Provided that it shall not be competent to any defendant in such action to set up
any defence as aforesaid without at the same time making a payment of money
into court by way of amends, and every such defence so filed without such
payment into court shall be deemed a nullity and may be treated as such by the
plaintiff in the action.”

In Chu Siu Kuk Yuen v Apple Daily Ltd,177 Yuen J held that the defendants would not 20.041
succeed unless the amount paid into court meets the award of damages because the
payment in is in full satisfaction of the action, and that a lesser sum than the award,
which the plaintiff would be entitled to refuse, would not be payment of a sum by way
of “amends”, and would not validate the defence. To rely on this defence, therefore,
a certain amount of guessing work about the award a jury or judge may make must
be done. There is thus a certain degree of risk of not validating the defence in this
respect.178
Another statutory defence is found under s.25 of the Defamation Ordinance. That 20.042
provision allows the maker of a defamatory statement to make an “offer of amends” by
way of a correction of the words, and an apology to the person defamed. Proceedings
would be barred as regards the maker of the apology if the person to whom the offer
is made accepts the offer. In the event the offer is not accepted, the person making
the offer will have a defence if he proves that the statement was published innocently
and unintentionally in relation to the plaintiff, and if the offer was made as soon as
practicably after the defendant became aware that the statement might be defamatory
of the plaintiff, and if the defendant was not the author of the statement, that it was
made without malice by the author. There is a degree of complexity in the matters
to be followed in order to rely on such a defence, including the preparation of an
affidavit setting out the facts to support the innocence of the defendant in publishing
the statement in relation to the plaintiff.179 However, internet service providers who

177
[2002] 1 HKLRD 1.
178
See also Robin Miles Bridge v Wai Kin Bong [1984] HKLR 225.
179
See subs (2).

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 902 DEFAMATION

have attracted claims for the innocent and unintentional publication of defamatory
matters on the internet may derive assistance from this statutory defence.180
20.043 Further, s.86 of the District Councils Ordinance (Cap.547)181 provides that a member
of a District Council or a committee “shall not be subjected to any liability, action,
claim or demand by reason of anything done bona fide for the purpose of carrying into
effect the provisions of this Ordinance or any other enactment conferring functions
on a District Council.” This provision has been described as a “statutory defence of
qualified privilege”182 although it should not be equated with the law on qualified
privilege.183

(b) Justification

20.044 Justification (or truth). A plea of justification, that is, that the statement in an action
for defamation is true is a complete defence, and generally no interlocutory injunction
would be granted against a defendant pleading justification.184 A defendant who pleads
justification must have clear evidence to support such a defence.185 If evidence of the
truth of the statement that would support a plea of justification comes to his knowledge
after the commencement of the action, the court would usually allow him to amend his
defence to include such a plea, but the circumstances leading to his entering a plea of
justification, especially if it is well after the commencement of the proceedings, will be
subject to scrutiny186 and the court ought to be satisfied that no prejudice is caused to
the plaintiff which cannot be remedied by monetary compensation, especially in cases
involving more serious allegations187 and it would only be in exceptional cases that a
defendant would be allowed to adduce fresh evidence in support of such a plea if no
attempt has been made by the defendant before the trial of the action.188 In Lucas-Box v
New Group Newspapers Ltd189 the Court of Appeal held that a defendant pleading
justification “must make it clear to the plaintiff what is the case which he is seeking to
set up. The particulars themselves may make this quite clear, but if they are ambiguous
then the situation must be made unequivocal”.190 The defendant must set out with
precision and detail the case which he is seeking to make, giving particulars of
justification, that is to say, the meaning, or meanings, which the defendant is seeking

180
See, e.g. Stephenson, Kwan & Ellis, Cyberlaw in Hong Kong (2001) 39.
181
For the Legislative Council, see s.12 of the Defamation Ordinance (Cap.21).
182
Chan Chook Tim v Wong Kwok Hung [2004] 1 HKC 18.
183
Lee York Fai v Ho Hau Cheung [2007] 4 HKC 455, (Recorder A Chan SC).
184
Crest Homes Ltd v Ascott, [1980] FSR 396 (CA); Herbage v Times Newspapers, (unrep., Times, May 1, 1981).
185
Associated Leisure Ltd v Associated Newspapers Ltd [1970] 2 QB 450, 456 (CA) (Lord Denning MR); see also
Grobbelaar v News Group Newspapers Ltd [2002] 1 WLR 3024 and GKR Karate (UK) Ltd v Yorkshire Post
Newspaper Ltd [2000] 1 WLR 2571 (relationship between justification and qualified privilege discussed).
186
Associated Leisure Ltd v Associated Newspapers Ltd [1970] 2 QB 450 (CA); see also London Computer
Operators Training Ltd v British Broadcasting Corporation [1973] 1 WLR 424 (CA) (late amendment of
particulars of justification); Atkinson v Fitzwalter [1987] 1 WLR 201 (CA).
187
Atkinson v Fitzwalter, ibid.
188
Williams v Reason [1988] 1 WLR 96 (CA).
189
[1986] 1 WLR 147 (CA).
190
Ibid., 183. See also Prager v Times Newspapers Ltd [1988] 1 WLR 77 (CA); Viscount De L’Isle v Times
Newspapers Ltd [1988] 1 WLR 49 (CA).

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 DEFENCES 903

to justify.191 Rumours or hearsay statements are unlikely to be properly relied upon to

support a plea of justification. In Stern v Piper192 the court refused to allow this defence
where the defendants attempted to justify their statement by relying on allegations
made against the plaintiff in an affirmation by a third party for purposes of proceedings
pending against the plaintiff in the High Court. This decision found support in Shah v
Standard Chartered Bank.193 The defendant has to establish justification of defamatory
statements as alleged by the plaintiff194 but not necessarily every literal word in the
statement, suffice for him to prove the substantial truth of every material fact.
Specific offence. Where the defamation covers an allegation of a specific offence, 20.045
a defendant cannot give particulars of other acts to support a plea justifying the act
alleged in the plaintiff’s case.195 In general, where justification is pleaded it must be
considered as to the gist of the matter, and a defendant would succeed if the allegations
proved is not at variance with the alleged defamatory matter as understood by
reasonable men.196 A defendant, however, may be allowed to give particulars of other
acts of dishonesty, as opposed to a specifically alleged act of dishonesty, justifying the
innuendo that a plaintiff is generally dishonest.197
Every material fact must be justified. Any part in the publication which adds weight 20.046
to the imputation would be considered as material.198 In the case of a comment, in order
to justify the same, the defendant must prove facts which justify that the comment is
well founded.199
Partial justification. At common law, partial justification of the facts alleged by the 20.047
defendants will not be sufficient as a defence to an action for libel, but proof of part
of the defendant’s allegations may be taken into account by the jury in mitigation
of damages,200 but not questions of costs.201 A defendant, however, is not allowed to
rely on partial justification for the sole purpose of mitigating damages.202 A plea of

191
See Lim v Lawless, Independent, Aug 22, 1991 (CA). Actions for libel should not depend on tactics; see Polly
Peck (Holdings) Plc v Trelford [1986] 2 All ER 84, 94; Control Risks Ltd v New English Library Ltd [1990]
1 WLR 183 (CA). See also Morrell v International Thomson Publishing Ltd [1989] 3 All ER 733; Viscount De
L’Isle v Times Newspapers Ltd [1987] 3 All ER 499, 505 (Mustill LJ).
192
[1997] QB 123.
193
[1999] QB 241.
194
Cf Beevis v Dawson [1957] 1 QB 195 (discretion of the court in allowing the plaintiff to postpone giving rebuttal
evidence of the defendant’s charges until after the defendant gave evidence); Truth (NZ) Ltd v Philip North
Holloway [1960] 1 WLR 997. A defendant is only allowed to justify defamatory meanings. Justification in
respect of a non-defamatory meaning is both irrelevant and embarrassing: Broadcasting Corp of New Zealand v
Crush [1988] 2 NZLR 234; Television New Zealand Ltd (TVNZ) v Haines [2006] 2 NZLR 433.
195
Maisel v Financial Times Ltd [1915] 3 KB 336, 339 (Cozens-Hardy MR); Bookbinder v Tebbit [1989] 1 WLR
640. Cf Goodman v Times Publishing Co Ltd [1926] 2 KB 273.
196
Bendle v United Kingdom Alliance (1915) 31 TLR 403.
197
Maisel v Financial Times Ltd, ibid.; MacGrath v Black (1926) 95 LJKB 951. And see Williams v Reason [1998]
1 WLR 96 (CA).
198
Weaver v Lloyd (1824) 107 ER 535; See also Smith, Clerk v Parker (1844) 153 ER 191; O’Brien v Bryant (1846)
4 Dow & L 341.
199
For the distinction between the defences of justification and fair comment, see Sutherland v Stopes [1925] AC 47,
62, 63, (Lord Finlay).
200
Pamplin v Express Newspapers Ltd [1985] 1 WLR 689 (CA); Pamplin v Express Newspapers Ltd [1988] 1 WLR
116 (CA).
201
Pamplin v Express Newspapers Ltd [1988] 1 WLR 116.
202
Prager v Times Newspapers Ltd [1988] 1 WLR 77 (CA).

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 904 DEFAMATION

justification must cover the entirety of the sting of the libel. Where there are various
imputations made it is open to a defendant to justify some only, but he must establish
that the statements complained of are severable.203 Section 26 of the Defamation
Ordinance provides: “In an action for libel or slander in respect of words containing
two or more distinct charges against the plaintiff, a defence of justification shall not
fail by reason only that the truth of every charge is not proved if the words not proved
to be true do not materially injure the plaintiff’s reputation having regard to the truth of
the remaining charges.”204 Thus, where there are five separate charges against a person,
three might be proved to be true and the rest not so proved. In such a case if the two
charges that are not proved to be true are, in the opinion of jury, minor matters not
materially affecting the plaintiff ’s reputation having regard to the three proven charges,
then the defence of justification will succeed. Such an example is found in Khan v
O’Dea205 where the judge applied the section and found in favour of the defendant.
However, if the two unproven charges are serious and materially injure the plaintiff’s
reputation then the defence of justification will fail.206 A defendant seeking to rely
on s.26 should plead the section.207 It should be noted that s.26 is only applicable
where distinct and separate charges are made by the defendant, which charges must
be founded on separate words and contained in the publication forming the subject
of the plaintiff’s complaints.208 In Cruise v Express Newspapers Plc209 the Court of
Appeal held that where the plaintiffs complained of only one of two separate and
distinct stings in an article, the defendants could not rely on the other sting by way of
justification. Also, a defendant has to justify the defamatory contents of the libel and it
is not sufficient to prove that the matter was reported to him in the words as stated.210
20.048 Rumours. The law requires people to be cautious when passing on the remarks of
others, as well as their own. In Oriental Press Group Ltd v Ted Thomas211 the defendant
argued that the words merely meant that a rumour was circulating to that effect. Rogers
J said that the defendant:

“sought to distinguish cases such as Cookson v Harewood [1932] 2 KB 478

at 485 and Lewis v Daily Telegraph [1964] AC 234 at 283–284. Those cases
demonstrate clearly that a person who publishes a rumour by repeating it, albeit
stating it to be a rumour, cannot justify the libel contained in that rumour by
proving the existence of the rumour. To defend an action successfully on the basis
of justification, the truth of the rumour needs to be proved”.

203
Mountney v Watton (1831) 109 ER 1293 and see Plato Films Ltd v Speidel [1961] AC 1090, 1141–1142. The
defendant’s plea of justification must be clear as to what is justified: Fleming v Dollar (1889) LR 23 QBD 388,
393; Rassam v Budge [1893] 1 QB 571, 576.
204
Truth (NZ) Ltd v Avery [1959] NZLR 274; and see Lim v Lawless, Independent, Aug 22, 1991 (CA).
205
[1985] HKLR 237.
206
Anders v Gas (1960) 104 SJ 211.
207
Moore v News of the World Ltd [1972] 1 QB 441 (CA).
208
Polly Peck (Holdings) Plc v Trelford [1986] 2 All ER 84.
209
[1999] QB 931 (CA).
210
Cf Cadam v Beaverbook Newspapers Ltd [1959] 1 QB 413; and Lewis v Daily Telegraph Ltd [1963] 1 QB 340
(CA); affirmed Rubber Improvement v Daily Telegraph Ltd [1964] AC 234.
211
(Unrep., HCA005217/1995, [1995] HKCFI 337). (this case can only be found in hklii).

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 DEFENCES 905

Complaint of only certain parts of a statement. When the plaintiff’s complaint 20.049
only relates to certain parts of a statement which contains charges that are not clearly
severable and distinct, the judge may submit the whole statement or article containing
the statement to the jury for their deliberation as to whether it is defamatory. The
defendant will then be allowed to justify by evidence his entire statement and will
not be limited to the parts under complaint by the plaintiff.212 In these circumstances
the defendant will succeed if he can justify the meaning that the statement bears as a
whole. As to when a defendant may be permitted to lead evidence covering allegations
not under complaint by the plaintiff, the English Court of Appeal has given the
guidelines in Polly Peck (Holdings) Plc v Trelford213 that if a plaintiff complains of
inferential meanings, that is to say a “false” innuendo, in addition to the ordinary
meaning of the statement, the defendant is entitled to look at the whole publication
and to aver that in their context the words bear a different meaning from that alleged
by the plaintiff, and the defendant is allowed to derive a meaning of the publication on
the whole by examining parts the publications of which the plaintiff is not complaining
against.214 Where several defamatory allegations, not being separable and distinct, have
a common sting, the defendant would be entitled to justify the sting with reference to
parts of the publication not forming part of the complaint.
The Rehabilitation of Offenders Ordinance (Cap.297). Section 64 of the Evidence 20.050
Ordinance (Cap.8), provides that:

“(1) In an action for libel or slander in which the question whether a person did
or did not commit a criminal offence is relevant to an issue arising in the
action, proof that, at the time when that issue falls to be determined, that
person stands convicted of that offence shall be conclusive evidence that
he committed that offence; and his conviction thereof shall be admissible
in evidence accordingly.”

Thus, if a defendant seeks to plead justification, this provision could be relied upon 20.051
to prove conclusively that the offence was committed.215 However, s.2(1) of the
Rehabilitation of Offenders Ordinance provides that if a person has been convicted
in Hong Kong of an offence for which he was sentenced to a fine not exceeding
HK$10,000, or imprisonment not exceeding three months, and has not been convicted
of any other offence before, the conviction cannot be relied on in court three years after
the conviction, subject to certain exceptions. The effect of this provision is generally
that a rehabilitated person must be treated for all purposes in law as a person who has
not committed, been charged with, convicted of, or sentenced for the offence that was
the subject of the spent conviction.

212
S & K Holdings Ltd Throgmorton Publications Ltd [1972] 1 WLR 1036 (CA) (see judgment of Edmund-Davies
LJ on the difficulty of deciding if charges are severable).
213
[1986] 2 All ER 84; and see Khashoggi v IPC Magazines Ltd [1986] 1 WLR 1412 (CA); Mintoff v Associated
Newspapers Group Plc, Times, 26 April 1989 (CA); Kelly v Special Broadcasting Service [1990] VR 69.
214
[1986] 2 All ER 84, 102.
215
See Truth (NZ) Ltd v Philip North Holloway [1960] 1 WLR 997.

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 906 DEFAMATION

20.052 Pleadings. In Mak Shiu Tong v Yue Kwok Ying216 Ribeiro PJ warned that where a
defendant sought to rely on justification and fair comment, it was necessary, in
assessing the viability of those defences, to identify and make clear in the pleadings the
defamatory meaning(s) sought to be justified or made the subject of fair comment.217

(c) Privilege

20.053 General. In certain cases liability for defamation would not attach to the publication of
matters which are false and defamatory. There are two kinds of privilege: 1) absolute,
which would be a complete bar to an action; and 2) qualified, which is only a prima
facie defence and may be defeated if the plaintiff shows malice on the defendant’s part.
20.054 Absolute privilege. Absolute privilege is attached to judicial, parliamentary, or official
statements.218 “The real doctrine of what is called ‘absolute privilege’ is that in the
public interest it is not desirable to inquire whether the words or acts of certain persons
are malicious or not. It is not that there is any privilege to be malicious, but that so far
as it is a privilege of the individual—I should call it rather a right of the public—the
privilege is to be exempt from all inquiry as to malice.”219 As such, witnesses must be
free to testify in courts or tribunals without fear that legal action may entail examining
their motives for performing their public duty.220
20.055 In the Legislature. One example of absolute privilege is seen in the Legislative Council.
Section 3 of the Legislative Council (Powers and Privileges) Ordinance (Cap.382),
provides:

“There shall be freedom of speech and debate in the Council or proceedings

before a committee, and such freedom of speech and debate shall not be liable to
be questioned in any court or place outside the Council.”

20.056 Other bodies. Absolute privilege is also applicable to certain other bodies. For example,
in Hong Kong, it has been held that it extends to the Official Receiver.221 Other
relevant statutes include the Electoral Affairs Commission Ordinance (Cap.541),222
the Ombudsman Ordinance (Cap.397)223 and the Architects Registration Ordinance
(Cap.408).224
20.057 Judicial proceedings. In relation to judicial proceedings “neither party, witness,
counsel, jury or judge, can be put to answer civilly, or criminally, for words spoken in

216
(2004) 7 HKCFAR 228.
217
See also Au Yee Ming v Ng Fei Tip (unrep., DCCJ 4595/2008, [2010] HKEC 1319) 25 Aug 2010, Deputy Judge
Yee, where the defendant failed by reason of deficient pleadings.
218
Munster v Lamb (1883) LR 11 QBD 588, 607 (Fry LJ).
219
Bottomley v Brougham [1908] 1 KB 584, 587 (Channell J); and see O’Connor v Waldron [1953] AC 76, 81;
Chenard & Co v Joachim Arissol [1949] AC 127.
220
Trapp v Mackie [1979] 1 WLR 377 (HL).
221
Li Ngan Shui Brumen v Official Receiver [1995] 2 HKLR 248.
222
See s.14(2).
223
See s.18.
224
See s.28.

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 DEFENCES 907

office”.225 No action of slander or libel against judges, counsel, solicitors, witnesses,

or parties, for words written or spoken in the course of proceedings before any court
or tribunal shall lie.226 This immunity covers all tribunals exercising rights similar to
those of a court of justice, and applies to authorised inquiry before a tribunal which has
similar attributes to those of a court.227 Every step in legal proceedings, as opposed to
merely the hearing in open court, has the protection of absolute privilege,228 including
for example, an affidavit filed in support of an interlocutory application.229 But the
same may not apply to a sheer notice of action.230 Similarly, a statement made by
the defendant about the plaintiff, a prisoner, to the parole board, was not absolutely
privileged in Daniels v Griffiths.231 An application made for an inquiry as to whether
a certain matter before the court is within the competence of the court is a judicial
proceeding, even though it is eventually shown that the court has no jurisdiction to
deal with the matter.232 Consensual conciliation proceedings was held to be differing
radically from that of a court of law and hence could not have the protection of
absolute privilege.233 As to when absolute privilege is present and applicable in judicial

225
Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431, 451 (Lopes LJ). See
also R v Skinner (1772) Lofft 55, 56 (Lord Mansfield CJ), Munster v Lamb (1883) 11 QBD 588; As to witnesses,
see Seaman v Netherclift (1876–77) LR 2 CPD 53; Cf Hargreaves v Bretherton [1959] 1 QB 45 (no liability
in tort for perjury by a witness); the protection of a witness in the box extends to statements made by him in
the preparation of a proof; Sir Patrick H Watson v Mrs J P Jones [1905] AC 480; Beresford v White (1914) 30
TLR 591; Lincoln v Daniels [1962] NZLR 298; but see Roy v Prior [1971] AC 470 (HL). As to fair comment
on a statement by a witness in the witness-box, see Grech v Odhams Press Ltd [1958] 2 QB 275 (CA). See also
Marrinan v Vibart [1963] 1 QB 528 (CA); Hargreaves v Bretherton [1959] 1 QB 45. Cf Rondel v Worsley [1969]
1 AC 191 (HL).
226
Dawkins v Lord Rokeby (1873) LR 8 QB 255, 263 (Kelly CB). The privilege extends to superior and inferior
courts, e.g. colonial High Court judges (Anderson v Gorrie [1985] 1 QB 688; Fray v Blackburn (1863) 3 B &
S 576); County Court judge (Scott v Stansfield (1867–68) LR 3 Ex 220); bankruptcy registrar (Ryalls v Leader
(1865–66) LR 1 Ex 296); coroner (Thomas v Churton (1862) 2 B & S 475); magistrates in petty sessions (Law v
Llewellyn [1906] 1 KB 487; Primrose v Waterston 39 SLR 475). See also Elijah Saatori v Michael Lintern-Smith
(unrep., HCA 1626/2009, [2010] HKEC 2), Deputy Judge L Chan at para 11.
227
Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431, 442 (Lord Esher);
approved O’Connor v Waldron [1935] AC 76, 81; Lincoln v Daniels [1962] 1 QB 237 (where the authorities are
reviewed); Thompson v Turbott [1962] NZLR 298. Examples of such tribunals are e.g. a commission of inquiry
under the Pluralities Act 1838 and 1885 (Barratt v Kearns [1905] 1 KB 504); military courts of inquiry (Dawkins v
Lord Rokeby, above; Dawkins v Prince Edward of Saxe-Weimar (1876) 1 QBD 499); Addis v Crocker [1960]
1 QB 87, affirmed [1961] 1 QB 11; the General Medical Council under the Medical Act 1858 (Leeson v General
Council of Medical Education and Registration (1890) LR 43 Ch D 366, 379, 383, 386); the Benchers of an Inn
of Court (Lincoln v Daniels [1962] 1 QB 237 (CA); Marrinan v Vibart [1963] 1 QB 528 (CA)); see also Royal
Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431, 432; and see Trapp v
Mackie ibid., per Lord Diplock at 383; and contrast Att-Gen v BBC [1981] AC 303 (HL).
228
But see Roy v Prior [1971] AC 470 (HL).
229
Revis v Smith (1856) 18 CB 126; Henderson v Broomhead (1859) 4 H & N 569; Gompas v White (1889) 54
JP 22. Report of an official receiver: Bottomley v Brougham [1908] 1 KB 584; Burr v Smith [1909] 2 KB 306.
230
Bank of British North America v Strong (1875–76) LR 1 App Cas 307 (notice served on a debtor requiring
him to make an assignment of his estate); Johnson v Evans, Clerk 170 ER 528 (complaint to a constable).
And see Szalatnay-Stacho v Fink [1947] 1 KB 1 (CA). Cf Lincoln v Daniels [1962] 1 QB 237 (CA); Cadam v
Beaverbrook Newspapers Ltd [1959] 1 QB 413; and Rubber Improvement Ltd v Daily Telegraph Ltd [1964] AC
234 (HL). And see Waple v Surrey County Council [1998] 1 WLR 860.
231
[1998] EMLR 489.
232
R v Bolton (1841) 1 QB 66 (Lord Coleridge CJ), in Usill v Hales (1877–78) LR 3 CPD 319, 323; approved in
Kimber v The Press Association, Ltd [1893] 1 QB 65 (CA).
233
Tadd v Eastwood [1985] ICR 132; Cf Hasselblad (GB) Ltd v Orbinson [1985] QB 475 (CA); Hasselblad (GB) Ltd v
Hodes [1985] 3 CMLR 664.

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 908 DEFAMATION

proceedings, Devlin LJ in Lincoln v Daniels234 has divided the privilege into three
categories, namely in the course of proceedings, for the purpose of the proceedings,
as well as proofs of evidence of witnesses, which has been examined and discussed by
Hartmann J in Wong Shui Kee v Victor Chu235 concerning a case where in a litigation
the solicitors acting for the plaintiff sent a letter to the solicitor acting for the defendant,
which was read by his assistant solicitor as well as the clients, accusing him of being
“intellectually dishonest”. Further, s.13(1) of the Defamation Ordinance provides that
“A fair and accurate report in any newspaper or broadcast of proceedings publicly
heard before any court shall, if published contemporaneously with such proceedings,
be privileged.”
20.058 Solicitor and client. Communications between solicitor and client are absolutely
privileged provided that the conversation is fairly referable to the relationship of
solicitor and client and relating to the matters on which the client is seeking professional
advice.236 No protection would however be given if it just so happens that the person
speaking is a solicitor and the person receiving the statements is his client.237
20.059 Qualified privilege. In the case of absolute privilege, it is the occasion which is
privileged, and every communication on that occasion is protected once the privileged
nature of the occasion is shown. As for qualified privilege, however, the defendant does
not establish privilege until he has shown how the occasion was used. It is for the jury
to say whether a communication was privileged, but the question whether an occasion
was privileged is for the judge.238 The privilege is qualified and not absolute, and as
such it would be lost if the defendant was malicious. A privileged communication
means that the occasion on which the communication was made rebuts the inference
prima facie arising from a statement prejudicial to the character of the plaintiff and
puts it upon him to prove that there was malice in fact, that is to say that the defendant
was actuated by motives of personal spite or ill-will independent of the occasion on
which the communication was made.239 Even after the defendant establishes a case of

234
[1962] 1 QB 237.
235
[2001] 3 HKC 589.
236
See, e.g. In Re Sarah C. Getty Trust [1985] QB 956; Three Rivers District Council v Governor and Co of the Bank
of England (No. 6) [2005] 1 AC 610 (HL).
237
More v Weaver [1928] 2 KB 520 (CA); Minter v Priest [1930] AC 558; Hayward v Wegg-Prosser (1978) 122
SJ 792; McAvan v London Transport Executive (1983) 133 N LJ 1101 (preparation of report by bus crew and
inspector the dominant purpose of which was to deal with any claim against the defendants privileged); see also
Buttes Gas & Oil Co v Hammer (No. 3) [1981] QB 223 (CA) (legal professional privilege between persons with
a common interest and common legal advisers in pending litigation); Neilson v Laugharne [1981] QB 736 (CA);
Auten v Rayner (No. 2) [1960] 1 QB 669; Parry-Jones v Law Society [1968] Ch 195; In Re Duncan, Decd [1968]
P 306 (covers foreign legal advisers and proceedings in foreign courts); McGregor Clothing Co’s Trade Mark
[1978] FSR 354; Butler v Board of Trade [1971] Ch 680 (explained Crescent Farm (Sidcup) Sports Ltd v Sterling
Officers Ltd [1972] Ch 553); Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners
(No. 2) [1972] 2 QB 102 (CA), [1974] AC 405 (HL); R v Barton [1973] 1 WLR 115 (no legal professional privilege
for documents that would help to further the defence in a criminal trial). See also R v Peterborough Justices, Ex
p Hicks [1977] 1 WLR 1371; and see Frank Truman Export Ltd v Metropolitan Police Commissioner [1977] QB
952, 960–966; R v George Edward Tomkins (1978) 67 CrAppR 181 (CA); M & W Grazebrook Ltd v Wallens [1973]
2 All ER 868 (NIRC); Re Highgrade Traders Ltd, (unrep., The Times, 9 December 1982); Dormeuil Frères SA v
Dormie Menswear (1983) 80 LSG 158; R v King [1983] 1 WLR 411; Prince Jefri Bolkiah v KPMG (a firm)
[1999] 2 AC 222.
238
Pullman v Walter Hill & Co, Ltd [1891] 1 QB 524 (Lopes LJ).
239
Wright v Woodgate (1835) 2 Cr M & R 573, 577–578 (Parke B).

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 DEFENCES 909

qualified privilege, the plaintiff may prove actual malice on the part of the defendant
in reply.240
Principles. In Drummond v Kwaku241 Cheung J summarised the principles from Gatley 20.060
on Libel and Slander (9th edn). Where a qualified privilege existed, an individual might,
without incurring liability, make statements about another which were defamatory and
in fact untrue. A person was protected by qualified privilege where:

(1) The statement was fairly warranted by the occasion (that was to say, was
reasonably necessary to achieve the purpose for which the law granted the
privilege) and it was not shown to have been made with malice, i.e. knowing
it to be untrue or with some indirect or improper motive;
(2) The maker of the statement had a duty (whether legal, social or moral) to
make the statement and the recipient had a corresponding interest to receive
it; or where the maker of the statement was acting pursuant to an interest of
his and the recipient had such a corresponding interest or duty in relation to
the statement or where he was acting in a manner in which he had a common
interest with the recipient;
(3) A person whose character or conduct had been attacked was entitled to
answer such attack, and any defamatory statements he might make about the
person who attacked him would be privileged provided they were published
bona fide and were fairly relevant to the accusations made. Mere retaliation,
which could not be described as an answer or explanation, was not protected,
but the defendant was not required to be diffident in protecting himself and
was allowed a considerable degree of latitude in this respect;
(4) Publication to a person who did not share in the reciprocity was not generally
privileged. However, communications to persons without such an interest or
duty were, nevertheless, privileged if they were published reasonably, in the
ordinary course of business, and no more widely than was required for the
effective making of the communication, and if they would be privileged but
for such incidental publication.

Malice. An action lies for the malicious publication of statements which are false 20.061
in fact and injurious to the character of another. The courts would consider such
publication as malicious unless it is fairly made by a person in the discharge of some
public or private duty, whether legal or moral, or in the conduct of his own affairs, in
matters where his interest is concerned, in which cases the occasion would prevent the
inference of malice and affords a qualified defence depending upon the absence of
actual malice.242 A more recent definition is propounded by Lord Atkinson in Adam v
Ward:243 “[a] privileged occasion is, in reference to qualified privilege, an occasion

240
Lynam v Growing (1880) 6 LRIr 259, 268–269 (Dowse B).
241
[2000] 1 HKLRD 604, 629F onwards.
242
Per curiam, Toogood v Spyring (1834) 1 Cr M & R 181, 193; see Stuart v Bell [1891] 2 QB 341, 345 (Lindley
LJ); Adam v Ward [1917] AC 309.
243
[1917] AC 309, 334.

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 910 DEFAMATION

where the person who makes the communication has an interest or a duty, legal, social
or moral, to make it to the person to whom it is made, and the person to whom it is so
made has a corresponding interest or duty to receive it. This reciprocity is essential.”244
In order to put up the defence of qualified privilege, three elements must be proved: 1)
the occasion must be fit; 2) the matter must have reference to the occasion; and 3) it
must be published from right and honest motives.245 Once the first two elements are
established, the remaining question would be whether the occasion was used without
malice,246 and the burden of proving this lies upon the plaintiff.247 Where the only
remaining issue is that of malice, the only way in which any excess in the statement
in question is material is being evidence of malice, but such evidence may not be
conclusive of malice.248 The existence of malice is a question of fact for the jury, and
the burden of proof of malice is on the plaintiff. It is however a matter of law for the
judge to decide whether there is reasonable evidence of malice which may be left to
the jury.249 “The onus of proving malice rests on the plaintiff. He must satisfy me on
a balance of probabilities that the defendant used the occasion when she published
the defamatory statements, not honestly for the purpose of the duties and interests for
which the qualified privilege is extended by law, but for a sole or dominant indirect
motive or improper purpose not connected with the privilege”.250 If the evidence
shows malice on the balance of probabilities, the issue should be left to the jury,251
but judges and juries should be slow to draw an adverse inference against a defendant
as to deprive him of the protection of the privilege.252 In Tuson v Evans, Clerk,253 the
publication was considered not privileged as the violence of the language used had
exceeded the occasion. In John Simpson Warham v Cathay Pacific Airways Ltd,254 the
defendants failed In their defence of qualified privilege as the judge found they had
acted irresponsibly.255 In Cheng Hing Chiu Lionel v Cham Tze Kwong Reivlin,256 the
defendant failed in his plea of qualified privilege as the court found that he knew that

244
Ming Kee Manufactory Ltd v Man Shing Electrical Manufactory Ltd [1992] 2 HKLR 357 (Deputy Judge Jones)
245
See Horrocks v Lowe [1975] AC 135 (HL). Also Reynolds v Times Newspapers Ltd [2001] 2 AC 127.
246
Adam v Ward, above; Angel v H H Bushell & Co Ltd [1968] 1 QB 813; Clark v Molyneux (1877–78) LR 3
QBD 237.
247
Stuart v Bell [1891] 2 QB 341, 351 (Lindley LJ); Cf Darby v Ouseley (1856) 1 H & N 1; Clark v Molyneux
(1877–78) LR 3 QBD 237, 247 (Brett LJ).
248
Pittard v Oliver [1891] 1 QB 474; Nevill v The Fine Art and General Insurance Co, Ltd [1897] AC 68; and see
Angel v H H Bushell & Co Ltd [1968] 1 QB 813.
249
Loutchansky v Times Newspapers Ltd (No. 2) [2002] QB 783 (in relation to press reporting); Turner v Metro-
Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, 455 (Lord Porter); Boston v W S Bagshaw & Sons [1966]
1 WLR 1126 (CA).
250
See Ho Ping Kwong v Chan Cordelia [1989] 2 HKC 415 (Deputy Judge Findlay, as he then was). See also Cheng v
Tse Wai Chun (2000) 3 HKCFAR 339 and Lee Ching v Lau May Ming [2007] 3 HKLRD 623.
251
Sun Life Assurance Co of Canada v Dalrymple (1965) 50 DLR (2d) 217.
252
Horrocks v Lowe [1975] AC 135, 150 (HL) (Lord Diplock). And see Korach v Moore (1991) 76 DLR (4th) 506.
253
(1840) 12 Ad & El 733; see also, Huntley v Ward, above (Willes J), and Nevill v Fine Arts and General Insurance
Co, Ltd [1895] 2 QB 156, [1897] AC 68 (Lopes J). See also Fryer v Kinnersley (1863) 15 CBNS 422, Robertson
v M’Dougall (1828) 4 Bing 670.
254
(Unrep., HCMP 4400/2001, 11 Nov 2009).
255
See also Yaqoob v Asia Times Online Ltd [2008] 4 HKLRD 911. This is in line with the test in the new category
of qualified privilege as expounded in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 (HL) in relation to the
privilege enjoyed by the press in publishing information in the interest of the public, where malice is not relevant
but the concept of “responsible journalism” is brought into consideration—see below.
256
(Unrep., HCA 2206/2006, 25 Aug 2008).

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 DEFENCES 911

the accusations against the plaintiff were not true when they were made. However,
inadvertence or carelessness is not necessarily evidence of malice.257
Publication by agent. The privilege will also protect an agent publishing a 20.062
communication on behalf of another, if the publication by that other person is
privileged.258 Malice on the part of the principal will not destroy the privilege of
the agent if the agent is innocent.259 However, on the ordinary principle of vicarious
liability, the agent’s malice will make the principal liable.260
Publication to a third person. If the occasion is privileged, a publication by the 20.063
person in exercise of the privilege is protected if it is reasonable and in the ordinary
course of business.261 Thus, publication to clerks, typists or copyists is protected,
as “it is impossible that a business document can be written and pass through the
hands of one partner or person only”.262 So a publication by a solicitor to the plaintiff
was protected where in the ordinary course of business of the solicitor the letter was
read by his clerk.263 In Bryanston Finance Ltd v de Vries,264 it was held that where in
normal course of business an employer dictated letters to a typist, such publications
are protected by the original privilege. For the privilege to arise the relevant document
must be written in order to further the aims of or protect the business of the employer.
No privilege would attach unless the publication is reasonably necessary and in
the ordinary course of business.265 The matter is summarised in the judgment in
Toogood v Spyring:266

257
Brett v Watson (1872) 20 WR 723; Clark v Molyneux (1877–78) LR 3 QBD 237, 249 (Cotton LJ); and see Turner v
Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, 462, 463; Horrocks v Lowe [1975] AC 135 (HL).
258
Baker v Carrick [1894] 1 QB 838; Boxsius v Goblet Frères [1894] 1 QB 842; Watts v Times Newspapers Ltd
[1997] QB 650.
259
Egger v Chelmsford [1965] 1 QB 248; overruling Smith v Streatfeild [1913] 3 KB 764 (where it was held that the
malice of the principal would destroy the privilege of the agent); [1965] CLJ 30–34; not following dicta in Adam v
Ward [1917] AC 309; following Longdon-Griffiths v Smith [1951] 1 KB 295; Meekins v Henson [1964] 1 QB 472,
55, 82, 91(Thesiger J) and in Sun Life Assurance Co of Canada v Dalrymple (1965) 50 DLR (2d) 217; see also:
Crozier v Wishart Books Ltd [1936] 1 KB 471; Smith v National Meter Co Ltd [1945] KB 543, 546 (Uthwatt J);
Eglantine Inn Ltd v Smith [1948] NI 29 (Andres KCJ) (overruled by Egger v Chelmsford [1965] 1 QB 248);
Longdon-Griffiths v Smith [1951] 1 KB 295 (malice of one party did not affect the privilege of another where
each had an independent privilege). And see McWhirter v Manning, The Times, 29 and 30 October 1954; McLeod
v Jones [1977] 1 NZLR 441; Riddick v Thames Board Mills Ltd [1977] QB 881, 907 (CA).
260
See Citizens’ Life Assurance Co Ltd v Brown [1904] AC 423; Finburgh v Moss’ Empires Ltd 1908 SC 928; Moore v
Canadian Pacific Steamship Co [1945] 1 All ER 128, 134; Birne v National Sporting League, The Times, 12 April
1957; Aiken v Caledonian Railway Co 1913 SC 66 (principal held not liable for the personal malice of the agent
unconnected with the business of the principal in an action against the principal only). See also: Lloyd v Grace,
Smith & Co [1912] AC 716. See also Gros v Cook (1969) 113 SJ 408; Riddick v Thames Board Mills Ltd [1977]
QB 881 (obiter, whether a company would be liable for the slander by two employees).
261
Edmondson v Birch & Co Ltd [1907] 1 KB 371, 380, 382 (Collins MR). See also Roff v British and French
Chemical Manufacturing Co [1918] 2 KB 677; and Lacarte v Toronto (City) Board of Education (1959) 17 DLR
(2d) 609; Cf Chapman v Lord Ellesmere [1932] 2 KB 431; Russell v Duke of Norfolk [1949] 1 All ER 109, 115,
120.
262
Edmondson v Birch & Co Ltd [1907] 1 KB 371, 381.
263
Boxsius v Goblet Frères [1894] 1 QB 842; Cf Roff v British and French Chemical Manufacturing Co [1918]
2 KB 677.
264
[1975] QB 703.
265
Pullman v Walter Hill & Co Ltd [1891] 1 QB 524; R v Lancashire CC Police Authority, Ex p Hook [1980]
QB 603, 615 (CA).
266
(1834) 1 Cr M & R 181; Osborn v Thomas Boulter & Son [1930] 2 KB 226; Bryanston Finance Ltd v de Vries,
above; Lacarte v Toronto (City) Board of Education (1959) 17 DLR (2d) 609; Cf also Somerville v Hawkins
(1851) 10 CB 583; Taylor v Hawkins (1851) 16 QB 308.

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 912 DEFAMATION

“Where, indeed, an opportunity is sought for making such a charge before third
persons, which might have been made in private, it would afford strong evidence
of malicious intention and thus deprive it of that immunity which the law allows
to such a statement when made with honesty of purpose; but the mere fact of
a third person being present does not render the communication absolutely
unauthorised, though it may be a circumstance to be left with others, including
the style and character of the language used, to the consideration of the jury, who
are to determine whether the defendant has acted bona fide in making the charge,
or been influenced by malicious motive.”

20.064 Political information. The House of Lords in Reynolds v Times Newspapers Ltd267
reviewed the law relating to qualified privilege. The plaintiff was an Irish politician,
who sued the defendant newspaper for libel. The Court of Appeal considered the
defendant’s claim that the statements in newspapers, relating to the conduct of
individuals in public life, were covered by qualified privilege. The court however held
that the defendants had not satisfied the tests required for privilege. The defendants
appealed, and the House of Lords reviewed the law relating to qualified privilege in
relation to communications by the media. The court took the view that there should not
be a new category of “political information” which would invariably attract a “generic”
qualified privilege. However, the courts, taking into account the freedom of expression,
may hold that protection is appropriate in all the circumstances. The factors to be taken
into account would include the seriousness of the charge, the nature of the information
and the extent to which the matter in question was of public concern. Other relevant
factors would be the source of the information, the steps taken to verify it and the
status of that information, as well as the urgency of the matter in view of the fact that
news are time sensitive in so far as the media is concerned. There are other factors that
may be considered, the list of which is not exhaustive, like whether comment had been
sought from the defendant, whether the article contained the plaintiff’s version of the
facts, the tone of the article and all the circumstances of the publication.268 Eventually,
the House of Lords dismissed the defendants’ appeal, holding that although the
subject-matter of the offending article was of public concern, the allegations in the
article, which had contained no mention of the plaintiff’s explanation, were not in
the public’s interest to know, thus upholding the Court of Appeal’s decision that the
publication was not covered by qualified privilege. However, different countries or
areas, with different political systems, may view the application of qualified privilege
in political statements differently.269

267
[2001] 2 AC 127.
268
The non-exhaustive factors identified by Lord Nicholls in Reynolds v Times Newspapers Ltd were examined
and applied by Reyes J in Yaqoob v Asia Times Online Ltd [2008] 4 HKLRD 911, a case concerning an article
published by the defendants alleging that the plaintiffs were involved in money laundering, terrorist financing
and drug trafficking. The judge considered the factors set out in Reynolds v Times Newspapers Ltd on the
basis that the question of malice becomes essentially subsumed within the court’s consideration of journalistic
responsibility.
269
See, e.g. Lange v Atkinson [2000] 3 NZLR 385.

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 DEFENCES 913

Reynolds v Times Newspapers was said to have created a new category of qualified 20.065
privilege. As Lord Hoffmann in Jameel (Mohammed) v Wall Street Journal Europe
Sprl,270 when considering Reynolds v Times Newspapers Ltd, stated:

“Although Lord Nicholls uses the word ‘privilege’, it is clearly not being used in
the old sense. It is the material which is privileged, not the occasion on which it is
published. There is no question of the privilege being defeated by proof of malice
because the propriety of the conduct of the defendant is built into the conditions
under which the material is privileged. The burden is upon the defendant to prove
that those conditions are satisfied. I therefore agree with the opinion of the Court
of Appeal in Loutchansky v. Times Newspapers Ltd (Nos. 2–5) [2001] QB 783,
806 that ‘Reynolds’ privilege is ‘a different jurisprudential creature from the
traditional form of privilege from which it sprang’. It might more appropriately
be called the Reynolds public interest defence rather than privilege.
… Lord Nicholls was speaking in the context of a publication in a newspaper
but the defence is of course available to anyone who publishes material of public
interest in any medium. The question in each case is whether the defendant
behaved fairly and responsibly in gathering and publishing the information. But
I shall for convenience continue to describe this as ‘responsible journalism’.”271

Interest of person to whom communication addressed. A person would be entitled 20.066

to tell a third person certain facts where he “is so situated that it becomes right in the
interest of society that he should tell to a third person those facts”.272 The facts must
be important for the person in question to know, and in order to guide his conduct.273
There would be no privilege if the communication could not influence his conduct.
The privilege will depend on the nature of the communication, and on the relation in
which the parties stand to one another. In Chapman v Lord Ellesmere274 an inquiry
was held by the stewards of the Jockey Club concerning the “doing” of a racehorse.
The decision of the inquiry contained the statement that the plaintiff, the trainer of the
horse, had been warned off, and this was published in the Racing Calendar as well
as newspapers. The Court of Appeal held that the publication in the Racing Calendar
was privileged as the stewards had a duty to communicate their decision to the racing
public who had a corresponding interest in receiving it, and as it appeared that the
Racing Calendar should be the means of the communication of such decisions. The

270
[2007] 1 AC 359, 381D–F and 383F–G.
271
Reynolds v Times Newspapers Ltd was also applied in Charman v Orion Publishing Group Ltd [2008] 1 All ER
750; Seaga v Harper [2009] 1 AC 1, and Bonnick v Morris [2003] 1 AC 300 (PC).
272
Davies v Snead (1869–70) LR 5 QB 608, 611 (Blackburn J); in Stuart v Bell [1891] 2 QB 341, 351; Hunt v Great
Northern Railway Co [1891] 2 QB 189.
273
See Bromage v Prosser (1825) 4 B & C 247. See also Lo Ki Chung v Hong Kong Nam Hoi (Sha Tau District)
Association Ltd (unrep., HCA 39/2003, [2004] HKEC 868), Deputy Judge Poon found that the public that was
subscribing and making donations to the defendant, a charitable organisation, as well as members of the public
wishing to join as members of the defendant, had an interest in knowing the matters published.
274
[1932] 2 KB 431; followed Russell v Duke of Norfolk [1949] 1 All ER 109; Cf Cookson v Harewood [1932]
2 KB 478; Star Gems v Ford [1980] CLY 1671 (publication of allegations of business malpractice).

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 914 DEFAMATION

publication to the news agencies was however not privileged as the public at large had
not an “interest” in the publication, save only a sector of the public only.275
20.067 There must not only be an interest in the recipient but also an interest or duty in the
maker of the statement to make the communication in question.276 In Pang Siu Yin v
Tam Kei Wai Gary t/a Gary KW Tam & Co277 the plaintiff had been working in the
defendant’s firm of solicitors. When he left the employment, the defendant discovered
a number of clients had received services from the plaintiff with the fees waived.
The defendant, apart from seeking to recover the fees from the clients, also wrote
them a letter suggesting that there had been collusion with the plaintiff against the
firm’s interest. The court ruled that the letter, though defamatory, had the protection
of qualified privilege as both the sender and recipients of the letter had an interest in
the matter. Protection was also found to be available in a case concerning statements
concerning the competence and honesty of the chairman of a residential development
in the course of maintenance works in the building, made by the person asked to do
the works to the committee members.278 In certain cases, there is a positive duty for
one person to disclose what he is privy to, for example, in the case of an employee or
agent who is bound to lay before his employer all the information which he possesses
in relation to the matters put in his care or charge.279 However, if the publication of
the defamatory matter went beyond the parties interested in receiving it, then the
protection offered under qualified privilege would be lost.280 Reciprocity of duty and
interest is essential.281
20.068 Confidential relationship. Privilege arising out of confidential relationship has been
extended widely. In Beatson v Skene282 the court said:

“[w]hen once a confidential relationship is established between persons with

regard to an inquiry of a private nature, whatever takes place between them
relevant to the same subject, though at a time and place different from those at
which the confidential relationship began, may be entitled to protection as well as
what passed at the original interview and it is a question for the jury whether any
further conversation on the same subject, though apparently casual and voluntary,
does not take place under the influence of the confidential relationship already
established between them and is therefore entitled to the same protection.”

275
Considered in Friend v Civil Aviation Authority (No. 1) [1998] IRLR 253.
276
Watt v Longsdon [1930] 1 KB 130, 147 (Scrutton LJ); and see Phelps v Kemsley (1942) 168 LT 18. Beach v
Freeson [1972] 1 QB 14. In Reynolds v Times Newspapers Ltd [2001] 2 AC 127 the House of Lords acknowledged
a reciprocity of duty and interest in media reports and that, subject to certain conditions, qualified privilege could
be a defence to a newspaper publishing matters relating to politics which were of legitimate interest to the public
generally.
277
[1995] 3 HKC 482.
278
Ho Ping Kwong v Chan Cordelia [1989] 2 HKC 415.
279
Cooke v Wildes (1855) 5 El & Bl 328; Lawless v The Anglo-Egyptian Cotton and Oil Co (1868–69) LR 4 QB 262;
Moore v Canadian Pacific Steamship Co [1945] 1 All ER 128.
280
Li Tsze Sun v Ming Pao Newspaper Ltd [1996] 2 HKC 515 (Mr Recorder E Chan).
281
Jameel v Times Newspapers Ltd [2003] All ER (D) 104 (Nov); and Bonnick v Morris [2003] 1 AC 300. See also
Kearns v General Council of the Bar [2003] 1 WLR 1357, where the chairman of the Bar Council sent letters to
fellow members stating mistakenly that a person is not a solicitor.
282
(1860) 5 Hurl & N 838, 855, 856. See also Angel v H H Bushell & Co Ltd [1968] 1 QB 813, 836.

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 DEFENCES 915

Statement in answer to reasonable request for information. A trader is protected 20.069

if he answers the question of another trader concerning the solvency of persons with
whom the latter intends to deal.283 However, a trade protection society or mercantile
agency supplying credit information of traders for reward to subscribers is not
protected by privilege.284 A person is not necessarily protected simply because he was
asked a question, and he should first be reasonably satisfied that the person asking the
question has some interest or duty in the matter.285 As opposed to answers given to
questions asked, cases concerning volunteered communications were more difficult
to determine. An example was Coxhead v Richards,286 where the plaintiff was in
command of a merchant vessel. The defendant received from the mate of that vessel,
who was his friend, a letter imputing drunkenness and other grave charges against the
plaintiff, and seeking advice. The defendant forwarded the letter to the owners of the
vessel, who then terminated the employment of the plaintiff. The court was divided
as to whether the communication was privileged. Whilst part of the court287 held that
information of a very important character had come into the defendant’s possession,
and that it was his duty to disclose it to those interested in it, the other part288 denied
privilege, on the ground that the defendant was an entire stranger to all the parties. In
Bennett v Deacon,289 the defendant had volunteered an imputation on the plaintiff’s
solvency to a person intending to give the latter credit. The court was also divided
on whether there was privilege. Presently, it appears that the courts are taking a more
liberal view.290
“Legal, social or moral duty” to make the communication. In some circumstances 20.070
there may be a social or moral duty to make a communication in relation to matters
in which the recipient may be interest. The test is propounded in Stuart v Bell 291
where Lindley LJ said: “Would the great mass of right-minded men in the position
of the defendant have considered it their duty under the circumstances to make
the communication?”. Where the defendant has reason to believe that he has been
robbed by the plaintiff, he was discharging a social duty in giving information to the
plaintiff ’s employer.292 However, general gossip with no concern to the defendant is
not important.293 In Kazim Wilson Tuet Wai Sin v Nurudeen Ma Kwong Ming 294 the

283
Cf Davies v Snead (1869–70) LR 5 QB 608, 611; Robshaw v Smith (1878) 38 LT 423, 424 (Grove J); Waller v
Loch (1880–81) LR 7 QBD 619, 622.
284
Macintosh v Dun [1908] AC 390. But see, per Scrutton LJ in Watt v Longsdon [1930] 1 KB 130, 148. Macintosh v
Dun was applied by the Supreme Court of Alberta in Gillett v Nissen Volkswagen Ltd [1975] 3 WWR 520.
285
Force v Warren (1864) 15 CBNS 806, 808 (Erle CJ); Waller v Loch (1880–81) LR 7 QBD 619, 621 (Jessel MR).
286
(1846) 2 CB 569.
287
Tindal CJ and Erle J (whose judgments were approved by Blackburn J in Davies v Snead (1869–70) LR 5 QB
608, 611).
288
Coltman and Cresswell JJ.
289
(1846) 2 CB 628; Goslett v Garment (1897) 13 TLR 391.
290
Amann v Damm (1860) 8 CBNS 597, 602 (Willes J); Davies v Snead (1869–70) LR 5 QB 608, 611 (Blackburn J);
Stuart v Bell [1891] 2 QB 341, 346 (Lindley LJ); Greenlands Ltd v Wilmshurst [1913] 3 KB 507, 535 (Hamilton
LJ); Phelps v Kemsley (1942) 168 LT 18.
291
[1891] 2 QB 341, 350 (Lindley LJ); approved Watt v Longsdon [1930] 1 KB 130, 153 (Greer LJ); Cf Phelps v
Kemsley (1942) 168 LT 18.
292
Amann v Damm (1860) 8 CBNS 597, 601. And see Clarke v Austin (1974) 51 DLR (3d) 598 (employee making
allegations of shoplifting to her own employer).
293
R v Lancashire CC Police Authority, Ex p Hook [1980] QB 603, 615.
294
[1987] 3 HKC 382.

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 916 DEFAMATION

defendant claimed that there was a religious duty under the Koran to expose hypocrites.
Macdoughall J, after referring to Toogood v Spyring,295 said:

“No doubt, many a religious duty is also a moral duty but it does not follow that
it is always so. For example, the average member of society does not regard a
religious duty not to eat meat on Fridays to be a moral duty applicable to society
at large. Unless, therefore, the religious duty also happens to be a generally
recognised legal or moral duty, it is not one which receives the protection of the
law for the purpose of qualified privilege”.

20.071 In Botterill v Whytehead 296 the defendant, who was a clergyman, wrote to a committee
engaged in restoring a church protesting against the employment of the plaintiffs as
architects, alleging ignorance and incompetence on their parts. It was held that he
had no concern over the matter, and the communication was thus not protected by
privilege.
20.072 Communications between persons having a common interest. Communications
between parties who are commonly interested in a matter, for instance, in the condition
of some property, are privileged.297 It is privileged communication by a landlord to the
tenant complaining of the conduct of the tenant’s lodgers since the conduct may injure
the reputation of the house.298 In Watt v Longsdon299 the defendant was a director of
a company. He received a letter from the manager of the company which contained
defamatory allegations against the plaintiff, who was the managing director of the
company. The letter was published to the manager’s wife and to the chairman of
the company. In reply to the letter, the defendant wrote to the manager containing
defamatory statements about the plaintiff. The court held that the circumstances did not
confer any privilege as there was no social or moral duty to make the communication
to the wife. On the other hand, it has been held that a common interest existed between
an employer and his employee in relation to the publication of letters connected with
the business.300
20.073 Interest of person making the communication. In a case where the defendant had
sold goods to the plaintiff on credit, but has then learned of circumstances suggesting
that he has committed an act of bankruptcy, a notice to the auctioneer requesting them
not to pay over proceeds of stock over to the plaintiff was held to be protected by
privilege.301 It appears that it would be a case of privilege if the communication was
made “not for the purpose of slandering, but for the purpose of obtaining redress for

295
(1834) 1 Cr M & R 181.
296
(1874) 41 LT 588; Watt v Longsdon [1930] 1 KB 130 (communications to a wife).
297
E.g. Barr v Musselburgh Merchants’Association 1912 SC 174; Ware and de Freville Ltd v Motor Trade Association
[1921] 3 KB 40; Chapman v Lord Ellesmere [1932] 2 KB 431; Bridgman v Stockdale [1953] 1 WLR 704; Boston v
W S Bagshaw & Sons [1966] 1 WLR 1126 (CA); Pleau v Simpson-Sears Ltd (1976) 75 DLR (3d) 747 (notice in
bank to stop forged cheques).
298
See Knight v Gibbs (1834) 1 Ad & El 43.
299
[1930] 1 KB 130.
300
Bryanston Finance Ltd v de Vries [1975] QB 703 (CA).
301
Blackham v Pugh (1846) 2 CB 611, approved in Baker v Carrick [1894] 1 QB 838; Cf Coward v Wellington
(1836) 7 Car & P 531, 586 (Littledale J).

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 DEFENCES 917

an injury, and made to a public officer who had the means of giving such redress”.302 A
defendant was held entitled to inform his employees not to associate with the plaintiff,
a former employee whom he had discharged by reason of suspicion of theft, since
the communication was connected with the direct interest of the defendant in asking
his employees to dissociate themselves from the plaintiff whom he believed was
dishonest.303
Vindication by attacking assailant or a third party. If a person is attacked in his 20.074
character, he is allowed to retaliate by raising allegations against his assailant in order
not only to vindicate himself, but to discredit his attacker, in relation to the particular
subject matter.304 He is not, however, entitled to raise matters in revenge of an entirely
different nature. Any such reply must be fairly relevant to the subject matter of the
attack, not exceed the attack in its extent and character.305 If the retaliation exceeds the
occasion, the privilege would be lost.306 A show of anger may be evidence of malice
but certainly not sufficient in itself to constitute malice.307 Where the reply to the attack
was by pointing the finger at someone else, the vindication may be privileged.308 It
would seem unfair for a person to be allowed to impugn the character of another in this
regard, but it has been held in some cases that privilege existed where other persons
had been named which were reasonably required to make the communication clear
and complete.
Public interest. Qualified privilege could apply in circumstances where a defamatory 20.075
statement is made of a politician if, after considering various factors like the seriousness
of the allegation, the nature and source of the information and any other relevant
factors, it was appropriate and in the interest of the public interest that the information
should be imparted to the public. In Reynolds v Times Newspapers Ltd 309 the House
of Lords decided that qualified privilege could apply to a newspaper article relating
to the plaintiff who was a politician after taking into account such considerations. The
New Zealand Supreme Court also dealt with a case involving communication relating
to a politician in Lange v Atkinson310 and Lange v Australian Broadcasting Corp.311
Mere suspicions, however, may not be required by the public in certain cases, as in

302
Fairman v Ives (1822) 5 B & Ald 642, 646 (Holroyd J). Contrast Tuson v Evans, Clerk (1840) 12 Ad & El 733;
Huntley v Ward (1859) 6 CBNS 514 (unreasonable or unnecessary publication); Winstanley v Bampton [1943]
KB 319 (privilege lost by malice).
303
Somerville Hawkins (1851) 10 CB 583; AB v XY 1917 SC 15. See Hunt v Great Northern Railway Co [1891]
2 QB 189.
304
See Drummond v Kwaku [2000] 1 HKLRD 604 (Cheung J), Laughton v Bishop of Sodor and Man, ibid.;
O’Donoghue v Hussey (1871) Ir R 5 CL 124; Dwyer v Esmonde (1878) 2 LRIr 243.
305
Robertson v M’Dougall (1828) 4 Bing 670; Tuson v Evans, Clerk (1840) 12 Ad & El 733; Senior v Medland
(1858) 4 Jur NS 1039; Koenig v Ritchie (1862) 3 F & F 413; Hancock v Case (1862) 2 F & F 711; Murphy v
Halpin (1874) Ir R 8 CL 127; and see Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, 470,
(Lord Oaksey); Mallett v Clarke (1968) 70 DLR (2d) 67.
306
Cooke v Wildes (1855) 5 El & Bl 328; Huntley v Ward (1859) 6 CBNS 514; Fryer v Kinnersley (1863) 15 CBNS
442, 429; Simpson v Downs (1867) 16 LT 391; Jones v Williams (1885) 1 TLR 572; Fraser-Armstrong v Hadow
[1995] EMLR 140.
307
See, e.g. Pang Siu Yin v Tam Kei Wai Gary t/a Gary KW Tam & Co [1995] 3 HKC 482, 494–495 (Yeung J).
308
Coward v Wellington (1836) 7 Car & P 531.
309
[2001] 2 AC 127.
310
[1997] 2 NZLR 22.
311
(1997) 189 CLR 520.

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 918 DEFAMATION

Blackshaw v Lord 312 where the defendants had named the plaintiff, a civil servant,
as responsible for huge losses of public money paid to North Sea oil companies.
The Court of Appeal held that that was a matter of general speculation and since
investigation has not produced any basis for the attack on the plaintiff, there was no
public interest to confer privilege. In cases where an immediate warning to the public
would be required, however, there may be a duty to communicate mere suspicions to
the public.313
20.076 Reports of legal proceedings. The common law recognises a general right of reporting
legal proceedings. Once it is established that a court is a public court, a fair and bona
fide report of all that passes there may be published.314 In terms of policy, the reason
for the privilege is that the public has a right to be apprised of what transpires at
court hearings, since there is limited accommodation at the courts.315 The privilege,
however, only covers reports of proceedings in open court,316 covering copies of the
records of a court relating to judicial proceedings which are open to the public.317 All
fair and accurate reports of judicial proceedings would enjoy qualified privilege at
common law. The common law privilege, however, does not cover reports of foreign
judicial proceedings, although such reports may enjoy qualified privilege if it is in the
public interest that they should be published.318
20.077 Reports to be regarded as a whole. A report should be a fair account of the
proceedings as a whole.319 It must set out the general effect of all that has passed at
the hearing with substantial accuracy, although details may be omitted or summarised.
It was said in Risk Allah Bey v Whitehurst that “You may either have it to the utmost
possible extent the limits of the paper will allow it to be given or in the more condensed
form of a summary or epitome, but you must have the report honest and fair”.320 A fair
abstract of the proceedings is sufficient. There is no requirement that a newspaper
should verify the contents of the speech of counsel or the evidence of a witness.321

312
[1984] QB 1 (CA).
313
See Camporese v Parton (1983) 150 DLR (3d) 208 (danger to public health); Youngerwood v Guardian
Newspapers Ltd [1997] CLY 2036 (no public interest in the newspaper publishing untrue allegations of racism).
314
Ryalls v Leader (1865–66) LR 1 Ex 296, 300 (Bramwell B); per curiam; Wason v Walter (1868–69) LR 4 QB
73, 94. And see Burnett & Hallamshire Fuel Ltd v Sheffield Telegraph & Star Ltd [1960] 1 WLR 502. It may
be contempt of court to publish during the course of the proceedings any extraneous matter likely to prejudice
the course of justice: R v Border Television Ltd, Ex p Att-Gen (1979) 68 CrAppR 375 (DC); Att-Gen v Leveller
Magazine Ltd [1979] AC 440 (HL). And see Home Office v Harman [1981] QB 534 (CA) (publication of
documents disclosed on discovery).
315
See Webb v Times Publishing Co Ltd [1960] 2 QB 535, 559–562.
316
Kimber v The Press Association, Ltd [1893] 1 QB 65. In Smith v Scott (1847) 2 Car & K 580.
317
Williams v Smith (1889) LR 22 QBD 134; Annaly v Trade Auxiliary Co, Ltd (1890) 26 LRIr 394; Searles v
Scarlett [1892] 2 QB 56; Jones (John) & Sons Ltd v Financial Times Ltd (1909) 53 SJ 614. As to publication
of a writ, see Cadam v Beaverbrook Newspapers Ltd [1959] 1 QB 413; Lewis v Daily Telegraph Ltd [1963]
1 QB 340, CA; affirmed [1964] AC 234 (HL).
318
Webb v Times Publishing Co Ltd [1960] 2 QB 535.
319
Cf Mitchell v Hirst, Kidd and Rennie Ltd [1936] 3 All ER 872.
320
Risk Allah Bey v Whitehurst (1868) 18 LT 615, 618; Webb v Times Publishing Co Ltd [1960] 2 QB 535.
321
Burnett & Hallamshire Fuel Ltd v Sheffield Telegraph & Star Ltd [1960] 1 WLR 502; Cf Webb v Times Publishing
Co Ltd, ibid.

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 DEFENCES 919

Fragmentary reports. In the case of a long trial spanning many days, fragmentary 20.078
reports in terms of what happens each day may be published separately at the time;322
but after the trial it would no longer be lawful to publish a report of only a particular
part of the proceedings to the defamation of any person, even if the report is accurate.
Lord Halsbury said In MacDougall v Knight: “I am not prepared to admit that judgment
of a learned judge must necessarily be privileged. It is obvious that a partial account
of what takes place in a court of justice may be the exact reverse of putting the person
to whom publication is made in the same position as if he were presented himself.”323
Mixed comment and report. If, apart from a report of what has passed in court, 20.079
the publisher of a report puts in his own discussion about the proceedings, the report
would become unfair and biased, and thus not protected by privilege. A reporter
should not give information of his own which are not brought out in the proceedings
either.324 However, the defence of fair comment may be available for comment on
matters contained in a fair and accurate report of a judicial proceeding.325
Statements covered by qualified privilege under the Defamation Ordnance. 20.080
The cover of qualified privilege has been extended by statute. Section 14 of the
Defamation Ordinance and the Schedule provide for qualified privilege for certain
newspaper or broadcast reports. Two categories of reports have been recognised and
provided for: 1) reports of proceedings of Commonwealth courts and legislatures,
international organisations and courts, copies of registers kept under statute, and court
notices; 2) of meetings or decisions of associations, boards and companies, and of
lawful public meetings. As for the second kind of reports, privilege is available only
“subject to explanation or contradiction”. This means that the plaintiff could ask the
defendant to publish a statement explaining or contradicting the original report, and
if the defendant refuses to do so or fails to do so adequately, the privilege will be lost.
The original reports must, in any event, be fair and accurate. A recent example of a
press conference being considered in the light of similar statutory cover of qualified
privilege is the House of Lords decision in McCartan Turkington Breen (A Firm) v
Times Newspapers Ltd.326

(d) Fair comment (“comment or honest comment”)327 and criticism

Introduction. Even if imputing on the characters of individuals, fair comment and 20.081
criticism on matters which have become public property are protected. An editor has
only the general right that belongs to the public to comment upon public matters. So

322
Per curiam, Lewis v Levy (1858) El, Bl & El 537, 560; Kimber v The Press Association, Ltd [1893] 1 QB 65, 71.
323
(1889) LR 14 App Cas 194, 200 and 203.
324
Risk Allah Bey v Whitehurst (1868) 18 LT 615, 618 (Cockburn CJ), considered in Webb v Times Publishing Co
Ltd [1960] 2 QB 535; Stiles v Nokes (1806) 7 East 493; Boydell v Jones (1838) 4 M & W 446; per curiam, Lewis v
Levy (1858) El, Bl & El 537, 553; Hibbins v Lee (1864) 4 F & F 243; and see R v Parke [1903] 2 KB 432; Cf
Dingle v Associated Newspapers Ltd [1961] 2 QB 162 (CA); affirmed Associated Newspapers Ltd v Dingle
[1964] AC 371 (HL). See also Andrews v Chapman (1853) 3 Car & K 286, 288.
325
Addis v Odhams Press Ltd [1958] 1 QB 310; affirmed [1958] 2 QB 275 (CA).
326
[2001] 2 AC 277.
327
In Cheng v Tse Wai Chun (2000) 3 HKCFAR 339, Lord Nicholls was of the view that “comment or honest
comment” would be a more satisfactory name.

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 920 DEFAMATION

long as it is within the limit of fair and proper comment, it is no libel.328 The onus is on
the defendant to prove that the comment is fair.329 It is the right of the public, as Diplock
J put it in his directions in Silkin v Beaverbrook Newspapers Ltd,330 “which means you
and me, and the newspaper editor, and the man who, but for the present bus strike, would
be on the Clapham omnibus, to express their views honestly and fearlessly on matters
of public interest, even though that involves strong criticism of the conduct of public
people”. In Li Ching v Koo Too Shing,331 the court held that the affairs of a clansmen’s
organisation in the New Territories was not of public interest, and on the contrary, its
affairs were of supreme indifference to outsiders. In Eastern Express Publisher Ltd v
Mo Man Ching332 Sir Anthony Mason NPJ said that “In a society in which there was
a constitutional guarantee of freedom of expression, a narrow approach should not be
taken to the scope of fair comment”. The Court of Final Appeal in Hong Kong has
now given a leading exposition of the ingredients of this defence in Cheng v Tse Wai
Chun333 and the importance of the case has been recognised elsewhere.334 In that case
the defendants, radio commentators, had in their programme conducted a conversation
accusing the plaintiff, a solicitor, of acting unethically and unprofessionally in respect
of an incident that had caught public attention in respect of the imprisonment and
subsequent release of a Hong Kong tour escort in the Philippines on drug trafficking
accusations. The plaintiff was charged with improperly influencing the tour escort into
not pursuing a claim against his employer after his release. The defendants put forward
a defence of fair comment. Lord Nicholls NPJ set out five ingredients of the defence:

“In order to identify the point in issue I must first set out some non-controversial
matters about the ingredients of this defence. These are well established. They are
fivehold. First, the comment must be on a matter of public interest. Public interest
is not to be confined within narrow limits today: see Lord Denning in London
Artists Ltd v Littler Grade Organisation Ltd [1969] 2 QB 375, 391.
Second, the comment must be recognisable as comment, as distinct from an
imputation of fact. If the imputation is one of fact, a ground of defence must
be sought elsewhere, for example, justification or privilege. Much learning has
grown up around the distinction between fact and comment. For present purposes
it is sufficient to note that a statement may be one or the other, depending on
the context. Ferguson J. gave a simple example in the New South Wales case of
Smith’s Weekly Publishing Co Ltd v Myerson (1923) 24 SR (NSW) 20, 26:
‘To say that a man’s conduct was dishonourable is not comment, it is a statement
of fact. To say that he did certain specific things and that his conduct was
dishonourable is a statement of fact coupled with a comment.’

328
Campbell v Spottiswoode (1863) 3 B & S 769, 780–781. Also: Merivale v Carson (1888) LR 20 QBD 275, 283
(Bowen LJ); Cf Peter Walker & Son Ltd v Hodgson [1909] 1 KB 239.
329
And see Jones v Skelton [1963] 1 WLR 1362, 1378–1380 (PC); London Artists Ltd v Littler Grade Organisation
Ltd [1969] 2 QB 375 (CA); Chernesky v Armadale Publishers Ltd (1978) 90 DLR (3d) 321.
330
[1958] 1 WLR 743, 746; Slim v Daily Telegraph Ltd [1968] 2 QB 157 (CA).
331
[1946–1972] HKC 414.
332
(1999) 2 HKCFAR 264.
333
(2000) 3 HKCFAR 339.
334
Branson v Bower [2002] QB 737 (CA); Sugar v Associated Newspapers Ltd (unrep., 6 Feb 2001).

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 DEFENCES 921

Third, the comments must be based on facts which are true or protected by
privilege: see, for instance, London Artists Ltd v Littler Grade Organisation Ltd
[1969] 2 QB 375, 395. If the facts on which the comment purports to be founded
are not proved to be true or published on a privilege occasion, the defence of fair
comment is not available.
Next, the comment must explicitly or implicitly indicate, at least in general
terms, what are the facts on which the comment is being made. The reader or
hearer should be in a position to judge for himself how far the comment was well
founded.
Finally, the comment must be one which could have been made by an honest
person, however prejudiced he might be, and however exaggerated or obstinate
his views: see Lord Porter in Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950]
1 All ER 449, 461, commenting on an observation of Lord Esher MR in Merivale v
Carson (1888) LR 20 QBD 275, 281. It must be germane to the subject matter
criticised. Dislike of an artist’s style would not justify an attack upon his morals
or manners. But a critic need not be mealy-mouthed in denouncing what he
disagrees with. He is entitled to dip his pen in gall for the purposes of legitimate
criticism: see Jordan CJ in Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR
(NSW) 171, 174.”

Relevance of motive. Criticism that is proved to have been made with a dishonest 20.082
intention would fall to be a libel, as the comment would not then be a real criticism,
and the mind of the writer would not be that of a critic, but that of a person intending
to injure. Thus proof of actual malice may take a criticism out of a fair comment, and
it would be a question for the jury to say if the presence of actual malice had warped
the judgment of the critic.335 Campbell v Spottiswoode336 illustrates that a comment
may be unfair if, for example, it is tainted by corrupt and dishonourable motives that is
not necessarily malicious. That case involved a review of the plaintiff’s book that was
published in the defendant’s newspaper, and it was left to the jury to decide whether
the review was within the limits of fair criticism, and whether it had been written in
good faith. The jury gave verdict for the plaintiff by answering the first question in
the negative, and the second in the affirmative. In order to succeed in the defence of
fair comment, the statements complained of must be published honestly as genuine
criticism and as the real opinion of the person making the statements, and not from
some malicious motive.337 The state of mind of the defendant when he published the

335
Thomas v Bradbury, Agnew & Co Ltd [1906] 2 KB 627; Sutherland v Stopes [1925] AC 47, 63–64; Lyon v Daily
Telegraph Ltd [1943] KB 746; Adams v Sunday Pictorial Newspapers (1920) Ltd [1951] 1 KB 354, 360 (Denning
LJ); Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449; Broadway Approvals Ltd v Odhams
Press Ltd (No. 2) [1965] 1 WLR 805. As to malice and joint liability, see Thomas v Bradbury, Agnew & Co Ltd,
ibid.; Longdon-Griffiths v Smith [1951] 1 KB 295; Egger v Chelmsford [1965] 1 QB 248 (CA) (where Lord
Denning MR and Davies LJ differed); Chernesky v Armadale Publishers Ltd (1978) 90 DLR (3d) 321.
336
(1863) 3 B & S 769; Merivale v Carson (1888) LR 20 QBD 275.
337
See Christie v Westcom Radio Group Ltd (1990) 75 DLR (4th) 546 (honest belief may not necessarily take away
malice).

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 922 DEFAMATION

alleged libel is as matter directly in issue.338 However, in the words of Lord Esher MR
in Merivale v Carson,339 “Every latitude must be given to opinion and to prejudice,
and then an ordinary set of men with ordinary judgment must say whether any fair
man would have made such a comment. Mere exaggeration, even gross exaggeration,
would not make the comment unfair. However wrong the opinion expressed may be in
point of truth, or however prejudiced the writer, it may still be within the prescribed
limit.” In Cheng v Tse Wai Chun340 one important issue for the court was whether the
defendants were actuated by malice. Lord Nicholls, in considering certain particular
motives that were pleaded as particulars of malice, remarked that commentators of all
shades of opinion are entitled to “have their own agenda”. Politicians, social reformers,
busybodies, those with political or other ambitions and those with none, “all can grind
their axes”. The learned judge further said:

“Moreover, in so far as this situation is ever likely to arise, it is by no means clear

that the underlying public interest does require that the person impugned should
have a remedy. Take the case of a politician or a journalist who genuinely believes
that a minister is untrustworthy and not fit to hold ministerial office. Facts exist
from which an honest person could form that view. The politician or journalist
states his view, with the intention of injuring the minister. His reason for doing so
was a private grudge, derived from a past insult, actual or supposed. I am far from
persuaded that the law should give the minister a remedy. The spiteful publication
of a defamatory statement of fact attracts no remedy if the statement is proved
to be true. Why should the position be different for the spiteful publication of a
defamatory, genuinely held comment based on true fact?”

20.083 Lord Nicholls held that if the defendants knew the statement was untrue, or that they
were reckless as to whether their comments were untrue, this would be dishonesty and
there would be little difficulty in establishing malice. The appeal by the defendants
was eventually allowed. It also seems that malice could be the subject of a preliminary
issue to be decided in a trial.341 As to when should the issue of malice be left to the
jury, in Next Magazine Publishing Ltd v Ma Ching Fat 342 Mortimer NPPJ said that for
this to be done there must be evidence which taken at its highest was such that a jury
could find malice on the balance of probabilities. Litton NPJ and Chan PJ said there
must be more than a scintilla of evidence and mere surmise was not enough, in other
words there must be some facts proved on the basis of which a reasonable person could
infer malice.

338
Plymouth Mutual Co-Operative and Industrial Society, Ltd v Traders’ Publishing Association, Ltd [1906] 1 KB
403, 418 (Fletcher Moulton LJ). And see Att-Gen v Clough [1963] 1 QB 773; Att-Gen v Mulholland [1963] 2 QB
477 (CA); McConachy v Times Publishers Ltd (1964) 49 DLR (2d) 349; British Steel Corp v Granada Television
Ltd [1981] AC 1096.
339
(1888) LR 20 QBD 275, 280–281; Cf Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, 463
(Lord Greene); and see Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743; Cornwell v Myskow [1987]
1 WLR 630 (CA).
340
Ibid.
341
See, e.g. GKR Karate (UK) Ltd v Yorkshire Post Newspapers Ltd [2000] 1 WLR 2571. See also Alexander v Arts
Council of Wales [2001] 1 WLR 1840 where malice was discussed.
342
(2003) 6 HKCFAR 63.

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 DEFENCES 923

Province of judge and jury. Where protection is claimed on the ground that it is 20.084
fair comment, the judge would first decide whether, in the circumstances, any right
of comment exists and whether the publication is capable of being regarded as the
exercise of such a right.343 The jury would then decide whether the statements are
statements of fact344 or expressions of opinion,345 and in the latter case whether they
are fair or not, provided that the judge finds that there is evidence of unfairness.346 It
has been held in a case concerning the publication of an article written by a writer in
a newspaper, that it was not necessary for the defendant newspaper owner to prove
that the opinion was honestly held by the writer.347 In a very similar case, the Court of
Appeal held that once it was established that the relevant statement was objectively
fair, it was for the plaintiff to prove that the criticism was not an honest opinion, or that
it was motivated by some improper consideration.348
Fact and comment. Permissible comment must have some basis of fact. It must be a 20.085
comment on facts which are true (or on facts honestly believed to be true and covered
by privilege).349 It is not permissible to draw inferences from untrue premises. “To say
that you may first libel a man and then comment on him is obviously absurd.”350 When
fair comment is relied upon in defence, “the defendant must spell out with sufficient
precision to enable the plaintiff to know what case he has to meet, what is the comment
which the defendant will seek to say attracts the fair comment defence”.351 In Telnikoff v
Matusevitch352 the House of Lords held that when deciding whether a statement
consists of fact or comment, the court should consider the statement itself without
the assistance of the subject-matter to which it alludes.353 An exception to the normal
rule that the comment must be based on facts which are true in substance is the case
of comment on facts covered by privilege. For example, in a fair and accurate report

343
Henwood v Harrison (1871–72) LR 7 CP 606. See also: Lewis, Gent v Clement (1820) 3 B & Ald 702; Green v
Chapman (1837) 4 Bing NC 92; Popham v Pickburn (1862) 7 Hurl & N 891; South Hetton Coal Co Ltd v North
Eastern News Association Ltd [1894] 1 QB 133, 141; Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All
ER 449. 461; London Artists Ltd v Littler Grade Organization Ltd [1969] 2 QB 375 (CA); Chernesky v Armadale
Publishers Ltd (1978) 90 DLR (3d) 321. See also British Chiropractic Association v Singh [2011] 1 WLR 133.
344
“If the communication 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 fact or facts. It is for the judge to decide whether they
are so capable”: Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, 461.
345
The Aga Khan v Times Publishing Co [1924] 1 KB 675; Grech v Odhams Press Ltd [1958] 2 QB 275 (CA).
346
Campbell v Spottiswoode (1863) 3 B & S 769; Merivale v Carson (1887) LR 20 QBD 275; McQuire v Western
Morning News Co Ltd [1903] 2 KB 100, 110; Homing Pigeon Publishing Co Ltd v Racing Pigeon Publishing
Co Ltd (1913) 29 TLR 289; Cf Sutherland v Stopes [1925] AC 47; Turner v Metro-Goldwyn-Mayer Pictures Ltd
[1950] 1 All ER 449; Grech v Odhams Press Ltd, above; Jones v Skelton [1963] 1 WLR 1362, 1378–1380, PC;
London Artists Ltd v Littler Grade Organisation Ltd, ibid.
347
Lyon v Daily Telegraph Ltd [1943] KB 746.
348
Telnikoff v Matusevitch [1992] 2 AC 343 (HL).
349
Mangena v Wright [1909] 2 KB 958; Grech v Odhams Press Ltd [1958] 1 QB 310 (QB); affirmed [1958] 2 QB
275 (CA); London Artists Ltd v Littler Grade Organisation Ltd [1969] 2 QB 375 (CA); Barltrop v Canadian
Broadcasting Corp (1978) 86 DLR (3d) 61 (defendants failed to justify basic facts in plea of fair comment re
allegations that a doctor had given untruthful and misleading evidence at an inquiry into lead poisoning).
350
R v Carden sub nom R v Labouchere (1879) 5 QBD 1, 8 (Cockburn CJ).
351
Control Risks Ltd v New English Library Ltd [1990] 1 WLR 183, 189 (CA).
352
[1992] 2 AC 343 (HL).
353
The question is whether there is a sufficient substratum of facts indicated in the statement or words made forming
the subject matter of the action: Lowe v Associated Newspapers Ltd [2007] QB 580.

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 924 DEFAMATION

of a judicial proceeding,354 “If a statement made by a witness is fairly and accurately

reported, and attributed to the witness who made it, then no doubt, although the
evidence given by the witness is afterwards shown to be gales, the statement reported
can be made the subject of fair comment”.355 In Eastern Express Publisher Ltd v Mo
Man Ching356 the defendant, Ms Mo, made statements in her media programme called
“Media Watch” carrying a sting that the plaintiff publishers were prone to threaten
legal proceedings whenever they were mentioned, and that they wanted to frighten
people into shutting their mouths. The judge at first instance found that it was fair
comment. The Court of Appeal reversed that finding, and Mo appealed to the Court of
Final Appeal. Sir Anthony Mason, NPJ, in holding that Mo’s statements were comment
rather than fact, said, “An inference or deduction from facts may properly be regarded
as comment”.357 The highest court eventually held that the comment by Mo was fair
comment.
20.086 Statement consisting partly of statements of facts and partly comment. If the
statement consists partly of fact, and partly of opinion based on those facts, it must be
shown that the facts on which the statements of opinion are based are true in substance
in order to succeed in a defence of fair comment. Section 27 of the Defamation
Ordinance provides that “In an action for libel or slander in respect of words consisting
partly of allegations of fact and partly of expression of opinion, a defence of fair
comment shall not fail by reason only that the truth of every allegation of fact is
not proved if the expression of opinion is fair comment having regard to such of the
facts alleged or referred to in the words complained of as are proved”. If there is any
defamatory sting in the facts stated, they would remain actionable unless they are
justified.358
20.087 Comment must adhere to the text. The comment must be confined to the facts stated
in the text of the matter complained of. It may not be open and lawful to comment
on a part of a public figure’s life even if part of it is public property.359 Comment on
a literary production can include a criticism of its treatment of life and morals360 but
an attack on the author’s character or private life would be defamatory.361 The leading
decisions are Dakhyl v Labouchere362 and Hunt v The Star Newspaper Co, Ltd.363 Lord

354
Addis v Odhams Press Ltd [1958] 1 QB 310; affirmed [1958] 2 QB 275 (CA); Brent Walker Group Plc v Time
Out Ltd [1991] 2 QB 33.
355
[1958] 2 QB 275, 285.
356
(1999) 2 HKCFAR 264.
357
Referring to Gatley on Libel and Slander (9th edn, 1998), para 12.10; and Kemsley v Foot [1952] AC 345,
356–357.
358
Broadway Approvals Ltd v Odhams Press Ltd [1964] 2 QB 683. See also Kemsley v Foot [1952] AC 345, 358,
361 and 362 (proof of the truth every fact so stated was not necessary, suffice for the defendant to prove sufficient
facts to support the comment). Also: Truth (NZ) Ltd v Avery [1959] NZLR 274.
359
See, however, Seymour v Butterworth (1862) 3 F & F 372 (comment on private life held allowable as tending to
show if plaintiff were a man of honour and integrity. This is, however, doubtful). See also Parmiter v Coupland
(1840) 6 M & W 105; Cf London Artists Ltd v Littler Grade Organisation Ltd [1968] 1 WLR 607, [1969] 2 QB
375 (CA).
360
Kemsley v Foot [1952] AC 345, 356 (Lord Porter); Cf Wilson v Manawatu Daily Times Co [1957] NZLR 735.
361
Carr v Hood (1808) 1 Camp 355n; Fraser v Berkeley (1836) 7 Car & P 621; Campbell v Spottiswoode (1863)
3 B & S 769.
362
[1908] 2 KB 325n.
363
[1908] 2 KB 309.

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 DEFENCES 925

Atkinson said in the former: “A personal attack may form part of a fair comment
upon given facts truly stated, if it be warranted by those facts; in other words, if it
be a reasonable inference from those facts. Whether the personal attack in any given
case can be reasonably inferred from the truly stated facts upon which it purports to
be a comment is a matter of law for the determination of the judge before whom the
case is tried; but if he should rule that this inference is capable of being reasonably
drawn, it is for the jury to determine whether in that particular case it ought to be
drawn.”364 With similar effect, Fletcher Moulton LJ in Hunt v The Star Newspaper Co,
Ltd said:365 “Comment must not convey imputations of an evil sort, except so far as
the fact truly stated warrant the imputations … A libellous imputation is not warranted
by the facts unless the jury hold that it is a conclusion which ought to be drawn from
these facts. Any other interpretation would amount to saying that where facts were
only sufficient to raise a suspicion of criminal or disgraceful motive, a writer might
allege such motive as a fact and protect himself under a plea of fair comment. No such
latitude is allowed by English law.”
Must not be perversely unjust. A publication may contain genuine comment, but 20.088
that does not necessarily mean the comment is always fair. It may be perversely unjust
in which case it would not be protected by the principle of fair comment.366 It will
not be fair comment if it constitutes abuse or if it is inspired by malicious motive.367
In other words, the comment must be honest and must be such as can fairly be called
criticism. The test to which the jury should be directed is: could any fair person,
however prejudiced he may be, however exaggerated or obstinate his views, have made
this criticism?368 “The question is not whether the comment is justified in the eyes of
judge or jury but whether it is the honest expression of the commentator’s real view
and not mere abuse or invective under the guise of criticism.”369 The jury ought not to
try the “fairness” of the criticism against their own views and standard370 or to derive
anything from their own opinion of the public conduct of a public man in considering
the defendant’s statements about that man, as fair comment means comment honestly
believed to be true, which is not inspired by any malicious motive.371 A critic making

364
[1908] 2 KB 325n, 329.
365
[1908] 2 KB 309, 320. See Kemsley v Foot [1952] AC 345, 358–360.
366
Merivale v Carson (1888) LR 20 QBD 275; Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743; London
Artists Ltd v Littler Grade Organisation Ltd [1969] 2 QB 375 (CA); Cornwell v Myskow [1987] 1 WLR 630
(CA). A person taking on himself publicly to criticise and condemn the conduct and motives of another must
bring to task, not only an honest sense of justice, but also a reasonable degree of judgment and moderation, so
that the result may be what a jury shall deem, under the circumstances of the case, a fair and legitimate criticism
on the conduct and motives of the party who is the object of censure (per curiam, Wason v Walter (1868–69)
LR 4 QB 73, 96).
367
Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449; Silkin v Beaverbrook Newspapers Ltd [1958]
1 WLR 743; Cf McQuire v Western Morning News Co Ltd [1903] 2 KB 100, 110.
368
Merivale v Carson (1888) LR 20 QBD 275, 281 (Lord Esher); see also Turner v Metro-Goldwyn-Mayer Pictures
Ltd, 461, Kemsley v Foot [1952] AC 345, 357. And see Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743.
369
Turner v Metro-Goldwyn-Mayer Pictures Ltd, ibid., at 461 (Lord Porter).
370
McQuire v Western Morning News Co Ltd, ibid., at 109 (Collins MR). And see Jeyaretnam v Goh Chok Tong
[1989] 1 WLR 1109.
371
Thomas v Bradbury, Agnew & Co Ltd [1906] 2 KB 627; Slim v Daily Telegraph Ltd, ibid.

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 926 DEFAMATION

a comment that is not based on any mis-statements of facts372 with no personal

imputation373 against the plaintiff, however severe his criticism may be, will not be
liable. In order to succeed, the plaintiff must show some element that takes the matter
complained of outside the domain of criticism, and into the realm of defamation.374
20.089 Evidence as to the plaintiff’s reputation. The plaintiff may call evidence as to his
general or professional standing and reputation in order to show that the criticism
by the defendant is not fair or honest. Such evidence, however, must relate to his
reputation at the time of publication.375 The issue is whether the comment at the date of
publication could honestly have been made by a fair-minded person, although he may
be holding obstinate and exaggerated views.376
20.090 Judicial proceedings. The administration of justice is a matter of public interest and
may be the subject of public comment.377 The whole of the proceedings before the
court may be lawfully commented on, within the aforesaid limits, after the conclusion
of the proceedings. Comment while proceedings are pending or during the hearings
may amount to contempt of court if the comment would tend to create a bias against
any of the parties in the minds of the public and potential jurors.378

6. REMEDIES
(a) In general

20.091 Damages in general.379 Except for slanders not actionable per se,380 no proof of
actual damage is necessary in actions for defamation, and the damages are at
large.381 Yuen J said in Chu Siu Kuk Yuen v Apple Daily Ltd 382 “It is well-established
that general compensatory damages serve three functions: they are to console the
Plaintiff for hurt and distress suffered, to repair the harm that has been done to
his reputation (including his business reputation) and to vindicate his reputation”.
Since the jury decides on quantum, the amount of damages to be awarded would

372
Joynt v Cycle Trade Publishing Co [1904] 2 KB 292; Digby v Financial News Ltd [1907] 1 KB 502; Peter Walker &
Son, Ltd v Hodgson [1909] 1 KB 239; Sutherland v Stopes [1925] AC 47; London Artists Ltd v Littler Grade
Organisation Ltd [1969] 2 QB 375 (CA).
373
Cf Wilson v Manawatu Daily Times Co [1957] NZLR 735.
374
McQuire v Western Morning News Co Ltd [1903] 2 KB 100, 109.
375
Cornwell v Myskow [1987] 1 WLR 630.
376
Merivale v Carson (1888) LR 20 QBD 275, 280 (Lord Esher MR).
377
See Hibbins v Lee (1864) 4 F & F 243; no qualified privilege exists for an inaccurate and defamatory report of
judicial proceedings: Barinton v John Fairfax & Sons Ltd [1992] ALMD 854, ACT.
378
Att-Gen v Times Newspapers Ltd [1974] AC 273 (HL); Att-Gen v London Weekend Television Ltd [1973] 1 WLR
202; R v Border Television Ltd, Ex p Att-Gen (1979) 68 CrAppR 375 (DC); The Sunday Times v United Kingdom
(1979–80) 2 EHRR 245 (European Court of Human Rights condemned the House of Lords decision in Att-Gen v
Times Newspapers Ltd as contrary to the European Convention on Human Rights); Brych v Herald & Weekly
Times [1978] VR 727; Att-Gen v BBC [1981] AC 303 (HL); R v Bulgin, Ex p BBC, The Times, 14 July 1977.
379
See Grobbelaar v News Group Newspapers Ltd [2002] 1 WLR 3024; Campbell v MGN Ltd [2004] UKHL 22.
380
See ibid.
381
Damages for injury to health scarcely claimed: Wheeler v Somerfield [1966] 2 QB 94, 104 (but see Rigby v
Mirror Newspapers Ltd (1963) 64 SR (NSW) 34 (a claim for pain of body and mind included)). See also Mirror
Newspapers v Jools (1986) 5 FCR 507. See also Chu Siu Kuk Yuen v Apple Daily Ltd [2002] 1 HKLRD 1.
382
[2002] 1 HKLRD 1.

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 REMEDIES 927

carry a certain degree of uncertainty. In John v MGN Ltd 383 the plaintiff, a popular
singer, was awarded £350,000 damages for a report in the defendants’ newspaper.
The Court of Appeal reduced the damages to £250,000 compensatory damages and
£5,000 exemplary damages, holding that, contrary to its dictum in Rantzen v Mirror
Newspapers, it would be appropriate to refer the jury to awards in personal injury
cases. Such reference is not intended to be a reference to precedent but to give
the jury a sense of proportion in relation to the appropriateness of extremely high
amounts of damages for defamation.384 The court also took the view that the trial
judge should be able to indicate the level of award which would be appropriate. In
Yaqoob v Asia Times Online Ltd,385 general damages of $1 million was awarded to
the first plaintiff and $150,000 each to the other plaintiffs who were corporations
for serious allegations to say of someone that he was not just a money-launderer,
but also a financier of terrorist and drug-trafficking activities.386 In Oriental Daily
Publisher Ltd v Ming Pao Holdings Ltd,387 a newspaper publisher and the honorary
chairman of its holding company succeeded in a libel claim and the court awarded
$150,000 and $1.5 million respectively to the publisher and its honorary chairman.388
In order to serve the purposes of damages in defamation cases, the damages awarded
must be proportionate to the loss suffered by the plaintiff. In Sin Cho Chiu v Tin
Tin Publication Development Ltd,389 where the plaintiff was a solicitor, the court
took into account various factors including the failure of the defendant to make any
apology, the persistence in defending the libel, the withdrawing of the defence of
justification and fair comment at the last minute, and malice and awarded general
damages of HK$2 million and aggravated damages of HK$1 million. The appellate
court in Cheung Ng Sheong Steven v Eastweek Publisher Ltd390 set aside the award
of damages and ordered a new trial on damages. In that case, the jury had awarded
the plaintiff, the Head of Department of Economics at the University of Hong
Kong, HK$2.4 million for an article in Eastweek magazine that stated “Recently,
it is rumoured that Professor Cheung skipped lessons and refused to having group

383
[1997] QB 586.
384
In Gleaner Co Ltd v Abrahams [2004] 1 AC 628, the Privy Council refused to overturn an award of $35 million
Jamaican currency despite challenge that the amount was excessive.
385
[2008] 4 HKLRD 911.
386
See also John Simpson Warham v Cathay Pacific Airways Ltd (unrep., HCMP 4400/2001, [2009] HKEC 1848),
where air pilots were awarded $3 million general damages for defamatory statements made of them that they
were unprofessional, with bad employment records, and uncaring for the interests of their employer and of
Hong Kong. See also: Chu Sik Kuk Yuen v Apple Daily Ltd [2002] 1 HKLRD 1 ($3 million awarded to a solicitor
alleged to be a thief, where there was also evidence that the plaintiff suffered depression as a result), Hung Yuen
Chan Robert v Hong Kong Standard Newspapers Ltd [1996] 4 HKC 519 ($700,000 awarded in favour of a
practising solicitor), Kan Chung Nin v Li Kwong Ming [1987] 1 HKC 487, Chan Iu Seng v Ko Choi Hin (unrep.,
HCA 2901 & 2935/2004, [2010] HKEC 133) ($300,000 was awarded to each of the plaintiffs in a libel claim,
who were the chairman and members of a charitable clansmen’s association), Wong Ying Chow v Wong Hang Yin
(unrep., DCCJ 4078/2005, [2010] HKEC 765) ($100,000 awarded to the plaintiff who was a senior member of a
clansmen’s association), Cheung Ng Sheong Steven v Eastweek Publisher Ltd [1995] 3 HKC 601. Care however
has to be exercised in the choice of the proper forum to avoid adverse costs implications: see May Fung Co Ltd v
Wing Lung Industrial Ltd [2009] 5 HKLRD 590.
387
(Unrep., HCA 607/2008, 28 May 2010).
388
The court, having been referred to Sutcliffe v Pressdram Ltd [1991] 1 QB 153, also awarded aggravated damages
of $75,000 to each plaintiff.
389
(Unrep., HCA 6662/1997, [2002] HKLRD (Yrbk) 560, [2002] HKEC 50).
390
[1995] 3 HKC 601.

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 928 DEFAMATION

photographs with students of the Faculty of Economics taken”. The defendant

asked the appellant court to interfere with the award as being excessive. In Carson
v John Fairfax & Sons Ltd,391 the High Court of Australia described the purposes
of an award of damages for defamation, they are: 1) consolation for the plaintiff ’s
personal distress and hurt; 2) reparation for the harm done to the plaintiff ’s reputation
(including business reputation);392 and 3) vindication of the reputation.
20.092 Aggravation. Aggravated damages may be awarded, depending on the circumstances
of the publication, and on any evidence of the motives and conduct of the defendant,
as well as the effect which the defamatory matter has produced.393 In John Simpson
Warham v Cathay Pacific Airways Ltd 394 Reyes J awarded aggravated damages
where the defendant had failed in its defence of justification and had refused to
apologise.395 Such aggravated damages are however compensatory and should be
distinguished from exemplary damages, which is punitive in nature.396 Compensatory
damages at large may include actual pecuniary loss, anticipated pecuniary loss, or
any social disadvantages which result or may likely result from the commission of
the tort. The damages may also include compensation for the natural injury to the
plaintiff’s feelings, and the natural distress felt, especially if there has been any kind
of oppressive, insulting behaviour of the defendant causing or increasing the mental
pain and suffering, inflicting damage upon the plaintiff’s pride and self-confidence.397
Care must however be taken to ensure that an award of aggravated damages would not
be of such amount as to punish the defendant. Nourse LJ said in Sutcliffe v Pressdram
Ltd 398 that “In a case where the plaintiff relies on the defendant’s misconduct, but
where there is no claim for exemplary damages, the judge should emphasise that the
jury may only take account of any misconduct in order to assess the damage, original
or aggravated, which it has caused to the plaintiff’s feelings. He should tell them that,
however great their indignation, they are not allowed to take account of it so as to
include an exemplary element in their award”. Persistence by the defendant in a plea
of justification or fair comment may result in an increase in the damages awarded to
the plaintiff.399

391
(1993) 178 CLR 44.
392
See, e.g. Jameel v The Wall Street Journal Europe SPRL [2004] 2 All ER 92; Downtex Plc v Flatley [2004] All
ER (D) 454 (Feb).
393
See, e.g. Sin Cho Chiu v Tin Tin Publication Development Ltd, ibid.
394
Ibid., The same reasons were put forward in contending for aggravated damages in Lee Man Kin v Wang Mei
Chun (unrep., HCA 2876/2003, [2005] HKEC 1304), but the court refused to allow such damages as the plaintiff
was also responsible for triggering off what the judge described as a “tempest in the teapot”.
395
See also Lee Ching v Lau May Ming [2007] 3 HKLRD 623, paras 209–210 (Poon J).
396
Rookes v Barnard [1964] AC 1129, 1221; McCarey v Associated Newspapers Ltd [1965] 2 QB 86, 103–105
(Pearson LJ); Fielding v Variety Inc [1967] 2 QB 841 (CA); Broome v Cassell & Co Ltd, ibid.; Hayward v
Thompson [1982] QB 47 (CA). See paras 27-66 et seq, above. See also Williams v Mirror Group Newspapers,
The Independent, 12 Feb 1991 (CA).
397
McCarey v Associated Newspapers Ltd [1965] 2 QB 86, 104–105 (Pearson LJ); Broome v Cassell & Co Ltd,
ibid.; Mirror Newspapers v Jools, ibid.; Hayward v Thompson, ibid.; Blackshaw v Lord [1984] QB 1 (CA). See
also Khodaparast v Shad [2000] 1 WLR 618.
398
[1991] 1 QB 153, 186–187 (CA).
399
Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB 670. See AB v South West Water Services Ltd [1993]
QB 507 (CA) (exemplary damages).

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 REMEDIES 929

Extent of publication. The extent of the damage which the defamatory matter may 20.093
cause would obviously depend on the extent of its publicity. Thus, a plaintiff is entitled
to prove the manner and extent of the defamatory matter even in the case the defendant
has admitted to its publication.400 The jury should be asked to consider the extent
of publication in assessing damages, especially where the statement referring to the
plaintiff is only published to those with knowledge of special facts.401
State of mind of defendant material. The state of mind of the defendant is definitely 20.094
relevant in determining damages. “The spirit and intention of the party publishing a
libel are fit to be considered by a jury in estimating the injury done to the plaintiff.”402
A defamatory matter published and calculated to injure and insult the plaintiff could
be very damaging to the plaintiff’s reputation and mental welfare. The jury may even
consider the conduct of the defendant subsequent to the publication “from the time of
publication down to the time the verdict is given” as evidence of the spirit in which the
publication was made,403 but this should not entitle the jury to think that it would give
rise to a separate or independent right to damages, but rather as matters of aggravation
to the original cause of action,404 especially if the defendant has deliberately given
publicity to the defamation.405 The plaintiff may prove other acts of the defendant to
show malice, but the jury should be cautioned to treat such evidence only as matters
of aggravation.406
Exemplary or punitive damages. Exemplary or punitive damages are not recoverable 20.095
in defamation unless compensatory damages remain insufficient as a punishment after
taking into account all the circumstances of aggravation.407 Only in two situations
where there has been abuse of power can exemplary damages be awarded.408 First,
a civil servant may be punished by an award of exemplary damages for oppressive,
arbitrary or unconstitutional action against the plaintiff. Second, exemplary damages
may be awarded where the defendant’s conduct has been deliberately calculated to
make a profit for himself well exceeding any compensation payable to the plaintiff.
It must be proved that the defendant knew that what he did was illegal or that he was

400
Vines, Gent v Serell (1835) 7 Car & P 163; Praed v Graham (1890) LR 24 QBD 53, 55; Whitney v Moignard
(1890) LR 24 QBD 630. Also: Gathercole, Clerk v Miall (1846) 15 M & W 319, 331 (Pollock CB); Holt v Sun
Publishing Co (1979) 100 DLR (3d) 447.
401
Morgan v Odhams Press Ltd [1971] 1 WLR 1239 (HL) (see also for effect of apology on award of damages).
402
Per curiam, Pearson v Lemaitre (1843) 5 Man & G 700, 720; Bridgmont v Associated Newspapers LD [1951]
2 KB 578; Cf McCarey v Associated Newspapers Ltd [1965] 2 QB 86.
403
Praed v Graham (1890) LR 24 QBC 53; Cf Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR
581, 584, 585 (Scrutton LJ); Fielding v Variety Inc [1967] 2 QB 841 (CA); Cornwell v Myskow [1987] 1 WLR
630 (CA).
404
Anderson v Calvert (1908) 24 TLR 399, approving Praed v Graham, ibid.
405
Plunkett v Cobbett (1804) 5 Esp 136; Delegall v Highley (1837) 8 Car & P 444; Gilpin v Fowler (1854) 9 Ex 615;
Dingle v Associated Newspapers Ltd [1961] 2 QB 162; Associated Newspapers Ltd v Dingle [1964] AC 371.
406
Per curiam, Pearson v Lemaitre (1843) 5 Man & G 700, 720; Darby v Ouseley, ibid.; Anderson v Calvert, above;
Bridgmont v Associated Newspapers LD [1951] 2 KB 578.
407
Cassell & Co Ltd v Broome [1972] AC 1027 (HL). See Stone (1972) 35 MLR 449; McGregor (1971) 34 MLR
520.
408
Rookes v Barnard [1964] AC 1129, 1226; McCarey v Associated Newspapers Ltd [1965] 2 QB 86 (CA); Broadway
Approvals Ltd v Odhams Press Ltd (No. 2) [1965] 1 WLR 805 (CA); Manson v Associated Newspapers, Ltd
[1965] 1 WLR 1038; Fielding v Variety Inc [1967] 2 QB 841 (CA); Broome v Cassell & Co Ltd, ibid. See
Australian Consolidated Press Ltd v Uren (Thomas) [1969] 1 AC 590 (PC); AB v South West Water Services Ltd
[1992] 4 All ER 574 (CFI); subsequently reversed [1993] QB 507.

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 930 DEFAMATION

indifferent to its legality, and that he published the defamatory statement believing that
the material advantage accruing would exceed any likely material loss, for example,
where a publisher produces a defamatory but sensational book in anticipation that sale
will exceed any award of damages,409 or where a newspaper publisher deliberately
made a defamatory statement with a view to increasing its circulation.410 The principles
of exemplary damages have been recently discussed in Kuddus v Chief Constable of
Leicestershire 411 and Gleaner Co Ltd v Abrahams.412 In some cases, however, the court
seems to have been unaware of such boundaries as propounded in Rookes v Barnard 413
and had awarded exemplary damages in other situations. For example, in Choy Bing
Wing v Ng Yat Chi414 such damages were awarded by reason that the allegation of
corruption was unsubstantiated, that it was communicated to a large population, and
that the conduct of the defendant was “outrageous and despicable” which are not what
had been anticipated in Rookes v Banard.
20.096 Conditions for the award of exemplary damages for defamation. The court in John v
MGN Ltd 415 accepted the test laid down by the Court of Appeal in Riches v News
Group Newspapers Ltd.416 Such damages should be awarded only where: 1) at the time
of publication the defendant knew that he was committing a tort or was reckless as to
whether it was tortious or not, and decided to publish because the prospects of material
advantage outweighed the prospects of material loss; and 2) the publisher acted in the
hope or expectation of material gain. There has to be an element of calculation, that
is to say that the gain from the publication will exceed the potential disadvantages,
bearing in mind the possibility that the plaintiff may not take proceedings. Lord
Woolf also considered the principles governing exemplary damages in Thompson v
Commissioner of Police of the Metropolis.417 Where there are multiple plaintiffs an
award of exemplary damages may properly reflect that fact, but the total amount by
way of exemplary damages should not exceed the total which the defendant ought to
be made to pay as punishment.418
20.097 Actual damage. A plaintiff may recover damages on the strength of mere probability
that consequences injurious to him may ensue from the defamation, but he may also
prove that such consequences have in fact resulted.419 In Chu Siu Kuk Yuen v Apple
Daily Ltd, Yuen J said:

“[S]ince a publisher of mass media has no duty of care to the subjects of its
articles, thereby rendering a claim in negligence impossible, it would be unjust

409
Broome v Cassell & Co Ltd, ibid.
410
See John v MGN Ltd, ibid. See also Manson v Associated Newspapers, Ltd [1965] 1 WLR 1038.
411
[2002] 2 AC 122.
412
[2004] 1 AC 628.
413
Ibid.
414
[1992] 1 HKC 508.
415
[1997] QB 586.
416
[1986] QB 256.
417
[1998] QB 498.
418
Riches v News Group Newspapers Ltd [1986] QB 256 (CA).
419
See, e.g. Harrison v Pearce (1858) 1 F & F 567; Bluck v Lovering (1885) 1 TLR 497; Ratcliffe v Evans [1892]
2 QB 524; considered in Associated Newspapers Ltd v Dingle [1964] AC 371; Lewis v Daily Telegraph Ltd
[1963] 1 QB 340 (CA), Rubber Improvement Ltd v Daily Telegraph Ltd [1964] AC 234.

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 REMEDIES 931

if the victim who suffers injury would also be left without remedy in an action
for defamation. I would hold therefore that in law, a plaintiff in an action for
defamation can recover damages for injury to body and mind which is proved to
flow naturally and directly from the defamation.”

The learned judge awarded damages for the mental and physical injury to the plaintiff, 20.098
after reviewing certain authorities in England and elsewhere. A shipowner was
allowed to adduce evidence of the amount to which the profits of the next voyage
had fallen below the average where he was libelled in a newspaper in relation to the
seaworthiness and management of one of his vessels.420 And a plaintiff may be able
to adduce evidence to show that the defamatory statement has hindered his search for
employment, provided he can show the link between his continued unemployment and
the publication.421

(b) Special damage

Special damage. A plaintiff claiming special or consequential damage must plead 20.099
it.422 The special damage in an action for slander not actionable per se must involve
the loss of some specific thing or temporal advantage capable of being estimated at a
money value, if it is not actual pecuniary loss.423

(c) Mitigation of damages

General. A defendant may seek to mitigate the damages by proving circumstances424 20.100
showing that he did not act with malice. In Williams v Mirror Group Newspapers,425
the Court of Appeal held that if justification is not pleaded, cross-examination of
the plaintiff as to his character is not permitted for purposes of mitigating damages.
Further, s.17 of the Defamation Ordinance provides that the defendant may adduce
evidence in mitigation of damages that the plaintiff has recovered damages, or has
brought actions for damages for libel or slander in respect of publication of words
to the same effect, or has received or agreed to receive damages as compensation in
respect of such other publication.
Provocation. It is a mitigating factor if the publication was made under strong 20.101
provocation. It is sufficient if the circumstances are such as to raise a fair presumption

420
Ingram v Lawson (1840) 6 Bing NC 212. In Coyne v Citizen Finance, above, an award of damages in respect of
business as well as general reputation was upheld, whilst no special damages were claimed.
421
Riddick v Thames Board Mills Ltd [1977] QB 881, 892, 897, 908 (CA). And see Williams v Mirror Group
Newspapers, The Independent, 12 Feb 1991 (CA). Stuart-Smith LJ refused to apply different rules, in considering
unemployability, from those applied to the assessment of damages for loss of reputation.
422
Bluck v Lovering (1885) 1 TLR 497; Cf Lewis v Daily Telegraph Ltd, ibid.
423
Chamberlain v Boyd (1882–83) LR 11 QBD 407; Ratcliffe v Evans [1892] 2 QB 524, 532.
424
See, e.g. Vaughan v Ford, 1953 (4) SA 486 (severe mental disorder of the defendant); Plato Films Ltd v Speidel
[1961] AC 1090 and Dingle v Associated Newspapers Ltd [1961] 2 QB 162 (CA); affirmed [1964] AC 371 (HL).
425
The Independent, 12 Feb 1991 (CA).

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 932 DEFAMATION

that the first defamation provoked the second.426 However, if two people libelled each
other, neither may have a claim for substantial damages.427
20.102 Mere repetition. In most cases, it is said that evidence of a repetition of a defamatory
matter is not admissible unless it appears on the face of the publication that it is a
mere repetition, and the original authority is disclosed.428 The defendant in Saunders v
Mills429 was allowed to show in mitigation of damages that he had copied the
statement from another paper. The fact that a libel is published in a newspaper on
the communication of a correspondent is inadmissible in mitigation of damages.430 It
seems that if the plaintiff knows the person who originally attacked his character, he
ought to proceed against him instead.431 “If a defendant merely stated to the witness
what he had heard with a view to enable him to trace the slander to its real author, the
case might have been different.”432 However, a defendant cannot mitigate the damages
by producing evidence of other publications to the same effect as his own publication,
nor could he seek to mitigate the damages by showing that there had been other prior
or concurrent publications injuring the defendant’s reputation.433
20.103 Bad reputation of the plaintiff. A plaintiff in an action of defamation in effect puts
his reputation in issue and the defendant may give evidence that he has a bad character
in order to mitigate damages. “The word ‘character’ is not here used in the sense of a
man’s quality of disposition but in the sense of the reputation which he bears. The action
for libel is an action for loss of reputation. On the issue of reputation what has to be
investigated is not whether the claimant is in truth a good or bad man, but whether he is
reputed to be a good or a bad man.”434 If it is proved that he does not have a reputation
to lose, the defamatory may not really have injured him and thus may not entitle him to
substantial damages.435 Cave J said in Scott v Sampson436 that “On principle, therefore,
it would seem that general evidence of reputation should be admitted”. However,

426
Moore v Oastler (1836) 1 Mood & R 451n (Denman CJ); Watts v Fraser (1837) 7 A & E 223.
427
Finnerty v Tipper (1809) 2 Camp 72, 77 (Lord Mansfield CJ).
428
Mills v Spencer (1817) Holt NP 533; Richards v Richards (1844) 2 Mood & R 557.
429
(1829) 6 Bing 213; and see Dingle v Associated Newspapers Ltd [1961] 2 QB 162 (CA); affirmed [1964] AC 371
(judge not entitled to mitigate damages by reason of a previous or concurrent publication of the same libel on a
privileged occasion).
430
Talbutt v Clark (1840) 2 Mood & R 312.
431
See: The Earl of Northampton’s Case (1612): “In a private action for the slander of a common person, if JS
publish that he hath heard JN say that JG was a traitor or thief: in action of the case, if the truth be such, he may
justify” (12 Rep 132, 134). And see the note to Craft v Boite (1669) 1 Saund 241 at 244. See Sir W De Crespigny v
Wellesley (1829) 5 Bing 392; M’Pherson v Daniels (1829) 10 B & C 263; Tidman v Ainslie (1854) 10 Ex 63.
432
Richards v Richards, ibid., 559 (Cresswell J).
433
Dingle v Associated Newspapers Ltd [1964] AC 371; Williams v Mirror Group Newspapers, The Independent,
12 Feb 1991 (CA) (applied to articles published after the offending publication).
434
Speidel v Plato Films Ltd [1960] 3 WLR 391, 396 (Devlin J), affirmed [1961] AC 1090, 1128 (Lord Radcliffe);
and see Dingle v Associated Newspapers Ltd [1961] 2 QB 162, 195–196 (CA); affirmed [1964] AC 371,
398–399, 417–418; Goody v Odhams Press Ltd [1967] 1 QB 333 (CA).
435
Scott v Sampson (1881–82) LR 8 QBD 491, 503 (Cave J). Followed in Leonhard v Sun Publishing Co (1956)
4 DLR (2d) 514 (newspaper clippings showing words had previously been published and plaintiff took no
action); but see Dingle v Associated Newspapers Ltd [1961] 2 QB 162 (CA), affirmed [1964] AC 371. See also
Mitchell v Evening Chronicle [2003] All ER (D) 54 (Apr).
436
(1881–82) LR 8 QBD 491, 498 et seq, applied Plato Films Ltd v Speidel [1961] AC 1090 (HL); Associated
Newspapers Ltd v Dingle [1964] AC 371: held that this rule does not allow evidence of a reputation tarnished
only by the prior or concurrent publication elsewhere of libels to the same effect as evidence of bad reputation.
And see Williams v Mirror Group Newspapers, The Independent, 12 Feb 1991.

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 REMEDIES 933

he held that evidence of rumours or suspicions to the same effect as the defamatory
matter under complaint is not admissible as such evidence is only indirect evidence of
the plaintiff’s reputation.437 Although evidence of particular instances of misconduct
is not admissible, evidence of the plaintiff’s previous convictions in the relevant sector
of his life is admissible to show bad reputation.438 A defendant may give evidence
of the plaintiff’s general bad reputation in respect of the subject of the publication
under complaint, but not other irrelevant matters.439 The evidence of reputation must
be confined to matters which a reasonable jury could properly take into account as to
whether damages, which they would otherwise have awarded, would be reduced.440
It is not permissible to adduce evidence that the plaintiff has been guilty of similar
misconduct in the past, or has been charged with or suspected of such misconduct,
if a particular act of misconduct is imputed.441 A defendant cannot adduce evidence
of specific incidents of bad character, and thus similarly cannot cross-examine on
such incidents.442 “You cannot prove in chief specific instances of misconduct as
distinguished from general reputation, whether involved in the libel or not, in order
to mitigate damages, so also you cannot achieve that purpose by cross-examination
as to such specific instances.”443 The situation may be different where the plaintiff
has revealed his own misconduct that is closely connected with the matters under
complaint, in which case the court is entitled to take it into consideration in assessing
the damages.444

(d) Injunction

General. The court may grant an injunction if there is a serious possibility that the 20.104
defamation would be repeated, but the courts are reluctant to grant any interim or
interlocutory injunctions which is akin to limiting the freedom of speech. In Chan
Shui Shing Andrew v Ironwing Holdings Ltd445 the usual principles were applied in
considering whether to grant an interlocutory injunction. Such an injunction will
only be granted where it is clear that the statement is defamatory, that the plaintiff
needs to show the words are untrue in the event the defendant is pleading justification,
and that there is no reason for the view that the occasion of publication is or will
be privileged. In Oriental Press Group Ltd v Fevaworks Solutions Ltd,446 the court
refused to grant an interlocutory injunction against the defendants who hosted a

437
(1881–82) LR 8 QBD 491.
438
Goody v Odhams Press Ltd [1967] 1 QB 333 (CA).
439
Speidel v Plato Films Ltd [1960] 3 WLR 391 (CA), affirmed [1961] AC 1090.
440
Ibid., i.e. “reputation in that sector of a plaintiff’s life that has relevance to the libel complained of ” [1961]
AC 1090 at 1131 and Cf ibid., at 1139; applied Waters v Sunday Pictorial Newspapers Ltd [1961] 1 WLR 967;
and see Dingle v Associated Newspapers Ltd [1964] AC 371. See Hartt v Newspaper Publishing (No. 1), The
Times, 9 November 1989 (CA).
441
Ibid.
442
Hobbs v Tinling (CT) & Co, Ltd [1929] 2 KB 1; D & L Caterers v D’Ajou [1945] KB 364; Plato Films Ltd v
Speidel, ibid.
443
[1929] 2 KB 1, 18 (Scrutton LJ). See also Watt v Watt [1905] AC 115, 118 (Lord Halsbury). Dingle v Associated
Newspapers Ltd [1964] AC 371.
444
Hawkins v Express Dairy Co Ltd (1940) 163 LT 147 (where Hobbs v Tinling (CT) & Co, Ltd [1929] 2 KB 1 was
distinguished); Dingle v Associated Newspapers Ltd, ibid.
445
[2001] 2 HKC 376.
446
[2009] 5 HKLRD 641.

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 934 DEFAMATION

web forum where allegedly defamatory statements had been posted by members of
the forum. Yam J accepted the defendants’ contentions that it was arguable that the
defendants would have the common law defence of innocent dissemination in respect
of some of the words posted, and that others were not unarguably defamatory.447 The
court was referred to Poon Ying Hon v CCT Telecom Holdings Ltd,448 and accepted as
part of the defendants’ contentions that in an action on defamation the matter would
require exceptional caution before the court would exercise its jurisdiction to grant an
interlocutory injunction, and would only do so in the following circumstances: (1) the
statement is unarguably defamatory, (2) there are no grounds for concluding that the
statement may be true, (3) there is no other defence which might succeed, and (4) there
is evidence of an intention to repeat or publish the defamatory statement.449

447
The court was also referred to authorities concerning the liability of internet service providers: Bunt v Tilley
[2007] 1 WLR 1243; Godfrey v Demon Internet Ltd [2001] QB 201; Hemming v Newton [2006] BCWLD 2370–
2374; and Cubby, Inc v CompuServe, Inc (1991) 776 F Supp 135.
448
(Unrep., HCA 3431/2001, [2001] HKEC 1122), where Recorder J Leong SC referred to Gatley on Libel and
Slander, 9th edn, para 25.2.
449
See also Chan Shui Shing Andrew v Ironwing Holdings Ltd [2001] 2 HKC 376, applying Bonnard v Perryman
[1891] 2 Ch 269. See also: Law Kin Man Freeman v Chan Kin Hung (unrep., DCCJ 4563/2007, 3 Dec 2007).

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