Cheung Ng Sheong Steven v Eastweek Publisher Ltd'

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Cheung Ng Sheong Steven v Eastweek Publisher
Ltd.
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Cheung Ng Sheong Silence is Golden

• Prof. Cheung Ng Sheong has always been one of
  the pillars of the University of Hong Kong. He is
  very well known. Although he was given the award
  for the worst teaching, it did not damage his
  popularity. Further, quite a few students in the
  Faculty of Economics regard him as their idol.
• Recently, Prof. Cheungs own elder brother,
  Cheung Ng Chow, distributed in the University
  canteen a document .. pointing out directly
  Cheung Ng Sheongs misdeeds.

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• ...The persons involved included Cheungs
  brother(s), his elder sisters and his deceased
  mother. .It told of family disputes, commercial
  secrets, the history of how a fortune was made,
  millions of bad debts, inheritance rights, etc.
• Although students in general had reservations
  about such a one-sided version, there were quite
  a few students who gossiped among themselves
  Recently it was rumored that Cheung skipped
  lessons and refused to having group photos
  with students of the Faculty., thus using
  silence and disappearance to counteract such
  gossips.

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Plaintiffs statement of claims

• In its natural and ordinary meaning the said
  story was understood to mean
• the plaintiff failed to give lectures to his
  students
• the plaintiff refuse to take group photographs
  with his students and
• the plaintiff failed and/or refuse to carry out
  or discharge his professional duties as a
  professor.
• No complaint about the earlier part of the
  story.

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The verdict

• Roger J sitting with a jury who found for
• the plaintiff and awarded him 2.4 million.

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Grounds of appeal

• the award is plainly excessive
• the judge in his summing-up misdirected the
  jury that collectively were liable to cause the
  jury to award more generously than the law and
  evidence warranted and
• it is to be inferred that the jury improperly
  took account of wholly extraneous and irrelevant
  material published in Next, a rival magazine, the
  evening before the closing speeches were made.
• The respondents pursued their appeal in
  respect only of the amount of award, and admitted
  liability.

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Held, allowing for appeal 7,8,11 Sept., 20 Oct.
1995

• Nazareth VP
• this court has power to set aside the jurys
  award of damages and to order a new trial on
  damages. The court had no power, unless the
  parties agreed, to substitute its own assessment
  of damages.

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Cases referred to -- 1

• Cassell Co. Ltd. V Broome 1972
• Lord Hailsham the jury is the only legal and
  constitutional tribunal for deciding libel cases,
  including the award of damages. I do not think
  the judiciary at any level should substitute
  itself for the jury, unless the award is so
  manifestly too large, or manifestly too small,
  that no sensible jury properly directed could
  have reach the conclusion.

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Cases referred to -- 2

• Sutcliffe v Pressdram Ltd. 1990
• Lord Donaldson MR what then is the test to
  be applied? Various formulations occur in the
  reported cases.
• ..the damages are so excessive that no 12 men
  could reasonably have given them.
• There must be some reasonable relation between
  the wrong done and the solatium applied.
• the damages are out of all proportion to the
  circumstances of the case
• .. It is out of all proportion to the facts or
  such that 12 reasonable men could not have made
  such an award.

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• per Nazareth VP
• The criterion for intervention, as can be seen
  from the foregoing, was something in the nature
  of the well-known Wednesbury test.
• .s 8(1) of the Courts and Legal Services Act
  1990 came into operation and its application was
  considered by the Court of Appeal in Rantzen v
  Mirror Group Newspapers Ltd. 1994, with
  reference to art 10 of the European Convention on
  Human Rights. That Convention does not apply to
  Hong Kong. However, art 10 is broadly to the same
  effect as art 16 of the Hong Kong Bill of Rights

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Cases referred to -- 3

• Rantzen v Mirror Group Newspapers Ltd. 1994
• Lord Donaldson How is .. excessive in s
  8(1) of the Act of 1990 to be interpreted? we
  must .give proper weight to the guidance given
  by the House of Lords and by the European Court
  of Human Rights. .the grant of an almost
  limitless discretion to a jury fails to provide a
  satisfactory measurement for deciding what is
  necessary in a democratic society or justified
  by a pressing social need.
• . the barrier against intervention should be
  lower.
• The question becomes
• Could a reasonably jury have thought that
  this award was necessary to compensate the
  plaintiff and to re-establish his reputation?

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• per Nazareth VP Article 10 of the European
  Convention on Human Rights does not apply to Hong
  Kong, although similar provision is to be found
  in article 16 of Hong Kong Bills of Rights
  Ordinance. But s 7 of the BORO provides that the
  Ordinance, ..., binds only the government, public
  authorities. It would seem that the
  considerations in Rantzen do not apply in this
  case, i.e. between private individuals. The
  difficulty was overcome in two ways. First,..
  Article 10 can properly be regarded as an
  articulation of some of the principles underlying
  the common law,

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• And second, Lord Goff said, I conceive it
  to be my duty to interpret the law in accordance
  with the obligations of the Crown under this
  treaty the European Convention on Human
  Rights.
• While article 10 does not apply to Hong Kong,
  the International Covenant on Civil and Political
  Rights (ICCPR) does. Article 19 of the ICCPR
  contains provision corresponding to article 10 of
  the European Convention and article 16 of the
  Hong Kong Bill of Rights.

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• There was no other defamation trial by jury
  in Hong Kong during the last 80 years. It is
  accordingly judges, and not juries, who have
  established the existing levels of damages in
  Hong Kong. .it would be right that a jury in
  addressing the quantum of libel damages, should
  be afforded such guidance as may be available
  from libel awards made by judges.
• ..the libel is yet plainly one of merely
  marginal seriousness. No such innuendo absenting
  from lectures and group photo implying the family
  dispute was true was pleaded nor could it be
  accepted.

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• The Eastweek article was clearly careless, but
  not reckless, so as to invite exemplary or
  punitive damages. .to the defendants credit
  that a fortnight after publication of the article
  they published .without alteration and with
  prominence similar given to the article, a letter
  from a student of the University of Hong Kong
  pointing out the falsity of the article. The
  libel is unlikely to have had any effect upon the
  plaintiffs high standing and reputation. An
  apology 18 months after the published article
  came so late.

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• A very minor fraction of the 2.4m. awarded
  would amply serve to compensate ..
• the award is so excessive as clearly to
  meet the several formulations in the authorities
  of the criteria for intervention by this court,
  e.g. (1) so excessive that no seven jurors could
  reasonably have made it, (2) out of all
  proportion to the circumstances of the case, and
  (3) clearly divorced from reality, and above all,
  such that no reasonable jury could have thought
  the award necessary to compensate the plaintiff
  and to re-establish his reputation.

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• per Mayo JA the damages awarded should not
  have been calculated on the basis of punishing
  the appellants.
• The only case where a comparable amount had
  been awarded was Choy Bing Wing v Ng Yat Chi
  1992. Allegations the plaintiff was not
  qualified to perform the work he had been
  undertaking and he was both dishonest and guilty
  of acts of corruption.
• The next highest award was made in Ng Man Sun
  v Law Wai. Allegations of a triad leader and
  unlawful activities 350,000 awarded.
• In other libel cases, awards made for a
  number of them were less than 100,000 each.

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Thank you