TSE WAI CHUN PAUL v. ALBERT CHENG AND OTHERS

HCA009983B/1996

1996, No. HCA 9983

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL JURISDICTION

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BETWEEN
TSE WAI CHUN PAUL (謝偉俊) Plaintiff
AND
ALBERT CHENG (鄭經瀚) & 2 others Defendants

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Coram: The Hon. Madam Justice Yuen in Court

Dates of hearing: 28 May 1998

Date of delivery: 28 May 1998

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D E C I S I O N

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1. In this libel action, one of the statements said by the 1st Defendant was that the Plaintiff had “either done something bad withbad intentions or done something bad with good intentions”. That was one of the statements the meaning of which the jury had to examinein their consideration of whether the words in the programme were defamatory.

2. In the course of this trial, the court had to adjourn last Friday 22nd May 1998, as one of the jurors had to attend a family funeral.On his programme that morning, the 1st Defendant sought to explain what was meant by the phrase “doing something bad with good intentions”.I have heard today a broadcast of that programme which had been taped on audio tape.

3. It has been accepted by Mr. Lee, for the 1st Defendant and Mr. Chain for the 2nd Defendant, that this constituted criminal contemptbeing a contempt in the face of the court and they both offer their unreserved apologies on behalf of their respective clients.

4. I find what was said by the 1st Defendant on 22nd May 1998 in his programme broadcast on Commercial Radio to be a serious contempt.Firstly, unlike the incident with the Next Magazine in the case of Cheung Ng Sheung, this was a discussion by the 1st Defendant of an aspect in his own case. Secondly, he has been expressly warned by the Court not to discuss any aspects of his case on his programme; this warning hadbeen given to him well before 22nd May. Thirdly, that statement he made in his programme on 22nd May 1998 was made when his own counsel’sspeech had finished and in the middle of the Plaintiff’s counsel’s speech to the jury, although not before the speech of the 2ndDefendant to the jury. Fourthly, I note that there has been no retraction or apology offered to the Court before today and an apologyhas been offered to the Court only after this matter had been brought to the attention of the Court. Fifthly, what he has done inmy judgment, is bordering on the contumelious. It shows a disrespect for the legal process and disrespect of the law and the ruleof law.

5. In mitigation, I have taken into account the fact that it is obvious from the verdict returned by the jury against the 1st Defendantthat the jury had not been affected by his statement on his programme on 22nd May 1998.

6. I take into account the fact that in the Next Magazine incident, the magazine was fined $25,000 and the editor personally was fined$5,000.

7. I consider this matter to be far more serious than that of the Next Magazine article. However, I have taken into account everythingthat has been said by Mr. Lee on behalf of the 1st Defendant and in particular, I have taken into account that unlike the Next Magazinecase where the criminal contempt was fought, Mr. Lee offered the 1st Defendant’s unreserved apology.

8. To show the Court’s displeasure and to restore the respect and dignity that the rule of law requires, I intend to fine the 1st Defendant$50,000 to be paid by close of business tomorrow and I also intend to order costs against the 1st Defendant on a full indemnity basisin respect of this application. I also require an apology which should be, as offered by Mr. Lee, broadcast at the same time andon the same programme and I will hear Mr. Lee on any proposed terms of the apology.

9. As far as the radio station, the 2nd Defendant, is concerned, I have heard what Mr. Chain has had to say in relation to the lackof control that the station had at the time and I consider that a costs order against the 2nd Defendant, also on a full indemnitybasis, would be sufficient.

(MARIA YUEN)
Judge of the Court of First Instance
of the High Court

Representation:

Jason Pow (instructed by Messrs. Sit Fung Kwong & Shum) for the Plaintiff.

Martin Lee, SC & Erik Shum (instructed by Messrs. Ho, Tse Wai & Partners) for the 1st and 3rd Defendants.

Benjamin Chain & Hui Ka Ho (instructed by C.M. Li, Chow, Pang & Chan) for the 2nd Defendant.