Defamatory statements by someone with poor credibility do less harm to a Plaintiff’s reputation and are therefore an important reason for lowering general damages for libel

In Oriental Daily Publisher Ltd & Anor v Ming Pao Holdings Ltd & Ors, FACV 1/2012, 26 September 2012, the Court of Final Appeal examined the principles concerning the assessment of damages for libel, in a case involving a newspaper reporting on defamatory statements and where the person making the original defamatory statements was of low credibility. The question of whether a corporation can be awarded aggravated damages for libel was also addressed.

The 1st Plaintiff (“Oriental”) is the publisher of the Oriental Daily News and the 2nd Plaintiff (“CK Ma”),the honorary chairman of its parent company, the Oriental Press Group.  The Defendants are the proprietor, publisher and chief editor of Ming Pao Daily (“Ming Pao”).

In 2008 Ming Pao published an article reporting on a demonstration by Ma Chiu Sing (“Chiu Sing”), which said that Chiu Sing had been imprisoned for criminal intimidation against Oriental and referred to himself as “The Hong Kong Bin Laden”. Although not stated in the article, in 2002 Chiu Sing had been found guilty of poisoning food in a supermarket and making terrorist threats, for which he was imprisoned. On his release, he had sent threatening letters to the Oriental Daily News, leading to his conviction for criminal intimidation. His original crime and conviction had been widely covered in the press at the relevant time.

While demonstrating, Chiu Sing displayed a banner, which the Mao Ping article included a photograph of, so that the words on it were legible. The Plaintiffs sued for libel based on the words appearing on the banner, which they contended were repeated by the Defendants’ publication of the photograph. They claimed that the words meant that they had forged evidence in order to falsely incriminate Chiu Sing, conspired with a prosecution witness by bribing him to give false evidence against Chiu Sing, and perverted the course of justice, resulting in Chiu Sing’s imprisonment for criminal intimidation.

The Court of First Instance ruled that the Defendants were liable for having defamed the Plaintiffs, by repeating Chiu Sing’s defamatory accusations and awarded Oriental HK$150,000 and CK Ma HK$1.5million plus an additional $75,000 each in aggravated damages.

The Defendants appealed and the Court of Appeal upheld the judgment on liability, holding that Ming Pao’s defence could only succeed, if the article was so incredible that no reasonable reader could believe it. While the Court of Appeal was prepared to accept that very few people would believe the allegations in the article, it was unable to conclude that no reasonable reader of the article could possibly believe Chiu Sing’s allegations. However, the content of and background to the article and an examination of previous libel awards, led the Court of Appeal to conclude that the awards of general damages of HK$150,000 and HK$1.5million were “manifestly excessive”. The Court of Appeal described the case as one involving “repetition of accusations by a notorious criminal, which many would regard as incredible” and concluded that only very few of Ming Pao’s readers would have given credence to the accusations. Accordingly, they reduced the awards for general damages to HK$50,000 and HK$150,000 respectively. The awards of aggravated damages were set aside entirely.

The Plaintiffs appealed to the Court of Final Appeal, seeking to restore the original awards for damages. The Court of Final Appeal unanimously dismissed the appeal, holding as follows:-

1. Damages in libel actions are compensatory in nature and, accordingly, in order to compensate the injured party, the effect and extent of the relevant statement must be considered. Poor credibility of an accuser ought to be regarded as relevant in assessing general damages. Defamatory accusations originating from someone whose credibility is doubted is likely, as matter of commonsense, to do less harm to the Plaintiff’s reputation, cause less distress and require less to vindicate his reputation, than the same accusations originating from an authoritative and credible source. On the facts, the Court of Appeal had been entitled to find that the “low credence” argument was made out, both by reference to the content of the article itself and to the facts of Chiu Sing’s original conviction, which were sufficiently notorious for the court to be entitled to attribute knowledge of them to a segment of Ming Pao’s readers.
2. The Court of First Instance’s awards were manifestly excessive on the facts of this case. Although arguable that in the light of Ming Pao’s publication to its much wider readership and of the awards in the media cases listed by the Court of Appeal, the damages substituted were on the low side, they were not so low as to justify the Court of Final Appeal’s interference.
3. Aggravated damages are part of the compensatory award and may be granted to compensate for additional injury to a plaintiff’s feelings caused by a defendant’s conduct. A corporation cannot be regarded as having feelings capable of being injured and, accordingly, Oriental, being a company, was not entitled to aggravated damages. In respect of CK Ma, two matters were relied on as a source of aggravation, namely, “stubborn persistence” in defending the action and failure to apologize. Persisting in an unjustifiable defence of justification may justify an award of aggravated damages, but the defence in the present case was qualitatively different. Far from Ming Pao saying that Chiu Sing’s allegations were true, it was saying that no-one could possibly take them seriously. In respect of the absence of an apology, although generally accepted that this can result in aggravated damages, maintenance of a particular defence may leave no room for an apology. This applied here because the Defendants were entitled to contend (even though they were eventually to fail) that Chiu Sing’s low credibility deprived Ming Pao’s republication of any defamatory effect. To penalize them in aggravated damages for not apologizing would unjustifiably imply that they were in effect required to admit liability.