HCA1109/2010 BAWANG INTERNATIONAL (GROUP) HOLDING LTD AND ANOTHER v. NEXT MAGAZINE PUBLISHING LTD - LawHero
HCA1109/2010
高等法院（民事訴訟）Poon J29/4/2013
HCA1109/2010
A A
HCA 1109/2010
B B
IN THE HIGH COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C
COURT OF FIRST INSTANCE
D D
ACTION NO 1109 OF 2010
E ------------------------ E
F
BETWEEN F
BAWANG INTERNATIONAL (GROUP) 1st Plaintiff
G G
HOLDING LIMITED
H BAWANG (GUANGZHOU) COMPANY LIMITED 2nd Plaintiff H
I I
and
J J
K NEXT MAGAZINE PUBLISHING LIMITED Defendant K
L L
------------------------
M M
Before : Hon Poon J in Chambers
N Date of Hearing : 30 April 2013 N
Date of Decision : 30 April 2013
O O
Date of Reasons for Decision : 20 May 2013
P P
----------------------------------------------------
REASONS FOR DECISION
Q ---------------------------------------------------- Q
R 1. On 30 April 2013, I allowed the defendant’s application for R
amendment of its defence and counterclaim and gave directions for filing
S S
of expert evidence on PRC law. I had indicated that I would give my
T reasons in writing, which I now do. T
U U
V V
- 2 -
A A
B
2. The 1st plaintiff is a publicly listed company in Hong Kong. B
nd
The 2 plaintiff is based in Guangzhou. The defendant is the publisher
C C
of Next Magazine, a widely circulated and popular magazine in Hong
D
Kong. D
E 3. On 14 July 2010, Next Magazine published an article stating E
that the Bawang shampoo, the plaintiffs’ products, sold in Hong Kong
F F
contained a carcinogen. The plaintiffs considered the article defamatory
G and commenced the present action on 21 July 2010. In paragraph 9 of the G
re-amended statement of claim, the plaintiffs pleaded :
H H
“9A Moreover, the defendant knew and/or intended that the
I Words, or their gist, should be republished in the PRC1 I
media, or should reasonably have anticipated that they
would be so republished, and the defendant’s publication
J of the Words did lead to extensive media coverage, J
repetition and republication of the Words or their gist in
K PRC newspapers and internet sites. Within one day of K
the publication of the Words (by 15 July 2010), the Words
or their gist had been republished in at least 53 PRC
L newspapers and internet sites, and within a week of the L
publication of the Words (by 21 July 2010), the Words or
their gist had been republished in over 200 PRC
M M
newspapers and internet sites, a substantial number of
which had nationwide circulation.”
N N
4. The plaintiff claimed, among other things, loss of business
O O
and profits as a result of the publication and republication of the Words for
P
the period between 15 July 2010 and 30 June 2011 in the tune of RMB448 P
million suffered by the 1st plaintiff out of which some RMB415 million is
Q Q
attributable to the 2nd plaintiff. As particularized, the bulk of the
R
plaintiffs’ loss occurred in the Mainland. R
S S
T T
1
For the purpose of para 9A, PRC means the Mainland.
U U
V V
- 3 -
A A
B
5. At the hearing before me, Ms Sit, for the plaintiffs, confirmed B
that the plaintiffs relied on the republications in the Mainland as a
C C
consequence of the original publication in Hong Kong for the purpose of
D
recovery of damage. They do not seek to rely on the republications as D
separate causes of action.
E E
6. The defendants applied to amend the defence in order to raise
F F
an issue of PRC law relating to the recoverability of damage arising from
G the republications in the Mainland in these terms : G
H
“11A. As to paragraph 9A: H
(1) The second sentence of paragraph 9A is not admitted.
I (1A) Even if, which is not admitted, there was extensive I
media coverage, repetition or republication of the
Words or their gist in PRC newspapers and internet
J J
sites (hereinafter referred to as the ‘Republications’)
(for the purpose of this pleading, the expression ‘PRC’
K shall exclude Hong Kong and Macau) : K
(a) The Republications took place in the PRC, and
L the bulk of any loss or damage which the L
plaintiffs might have suffered in consequence of
the Republications (including expenses incurred
M to counteract and redress the effect of the Words M
as alleged in paragraph 10 and loss of business
N and profits as alleged in paragraph 11) would N
also have occurred in the PRC.
O (b) Under PRC law : O
(i) the Republications by persons or parties other
P
than the defendant (hereinafter referred as the P
‘Republishers’) constitute separate and
independent causes of action for which the
Q Republishers are legally liable to the Q
plaintiffs :
R (ii) the defendant is neither jointly, nor jointly R
and severally, liable with the Republishers to
the plaintiffs in respect of the Republications :
S S
(iii) in circumstances where the original
publication of the Words by the defendant
T and the Republication by the Republishers T
U U
V V
- 4 -
A A
together cause the same damage but the act
B B
of either could not or would not on its own be
sufficient to cause the entire loss and damage
C suffered by the plaintiffs in the PRC, the C
defendant would only be liable to the
plaintiffs for its own original publication of
D the Words and the extent of its liability would D
only be for a proportional share of such loss
and damage as may be determined by the
E E
People’s Court in the PRC (taking into
account matters such as the degree and extent
F of fault, considerations of causation and F
remoteness, principle of fairness and policy
considerations), and the defendant is entitled
G to rely on this principle to limit its liability G
even if the plaintiffs choose to sue only the
H defendant but not the Republishers. H
(c) It is noted that the plaintiffs are suing only in
I respect of the original publication of the Words I
in Hong Kong and are not seeking to claim in
respect of the Republications in the PRC as
J separate causes of action. J
(d) To the extent that the plaintiffs are suing the
K defendant in respect of the original publication of K
the Words but seek to recover as a consequence
of that original publication the loss or damage
L L
which they have allegedly suffered in the PRC
by reason of the Republications, the extent of the
M defendant’s liability for such loss or damage M
would be matters of substance and not procedure
and thus is governed by PRC law as being the lex
N loci delicti or as having the most significant N
relationship with the occurrence and the parties.
O (2) Save as aforesaid, paragraph 9A is denied.” O
P 7. Mr Chow, SC, for the defendant, argued that doubt has been P
cast on the proposition that the claimant has a choice between suing on the
Q Q
further publication as a separate cause of action or treating the further
R publication as increasing the damage flowing from the first : Gatley on R
Libel and Slander, 11th Edn, para 6.36. Slipper v BBC [1991] 1 QB 283
S S
is usually regarded as the authority in support of the above proposition,
T where Bingham LJ (as then was) treated the further publication as T
U U
V V
- 5 -
A A
B
increasing the damage flowing from the first as a legitimate claim even B
though in that case, the film reviews in question could not amount to
C C
publication or republication of the libel and therefore could not found a
D
separate cause of action. Bingham LJ’s view is now open to doubt : see D
Bautrina v Times Newspaper Ltd [2010] EMLR 18, per Eady J at paras 51-
E E
53 :
F “51. Mr Barca raises a fundamental point of principle in F
relation to how the law now appears to treat claims for
additional damage where the later publications have not been
G G
sued upon as giving rise to a separate cause of action. He
referred, in particular, to the words of Bingham L.J. (as he then
H was) in Slipper, which was concerned with damage flowing from H
the reviews of the television programme. At p 296G-H, his
Lordship accepted that the plaintiff could not found a cause of
I action on the film reviews as amounting to publication or I
republication of the libel by the BBC. Nevertheless, he went on
to acknowledge the legitimacy of a claim in respect of the
J J
damage caused by those reviews as part of the damage alleged to
flow from the libelous publication itself.
K K
52. Mr Barca queries the juridical basis of the proposition that
a claimant can recover damages flowing from a publication in
L respect of which he could not establish primary liability on the L
part of the defendant. It is difficult to reconcile these two
propositions as a matter of causation. Attention is drawn by the
M learned editors of Gatley (in fn 281 on p 203) to observations M
made in the Queensland case of Timms v Clift [1998] 2 Qd R 100
N Qd CA, at 108: N
‘If, as was held, the plaintiff had no right to recover in
O respect of the cause of action for the second publication, O
that in the magazine, it is difficult to understand why the
cause of action in respect of the first to damages in respect
P of the second publication.’ P
53. It may be, as Mr Barca suggests, that what the Court of
Q Appeal in Slipper was recognizing implicitly was that it Q
would have been open to the plaintiff to sue on any of the
reviews, as distinct causes of action, insofar as they simply
R R
republished the words of the libel itself. ... He cited
particular passages in the judgments of Stocker LJ, at
S pp 295G-296E and Slade LJ, at pp 300F-300H and 302D- S
303A. The latter made reference to the BBC being in a
position reasonably to foresee that newspaper reviews
T would repeat the defamatory sting. It seems as though T
U U
V V
- 6 -
A A
the analysis should be in terms of foreseeability and novus
B B
actus interveniens. If this were not so, submits Mr Barca,
all a claimant would ever need to do in respect of
C ‘republications’ would be to claim damages by way of C
aggravation. There would never be any need to go
through the disciplines of establishing a separate cause of
D action in its own right.” D
E 8. Mr Chow further submitted that the doubt expressed by E
Eady J is consistent with the reasoning by Gray J in Collins Stewart Ltd v
F F
The Financial Times Ltd (No 2) [2006] EMLR 5, at paras 26-27 :
G G
“26. Such is the relatively generous ambit of recovery of
compensatory damages in a libel action. What is the
H position where a claimant is the subject of a series of H
articles? There are various possibilities. Assume that
the defendant publishes three defamatory articles referring
I to the claimant, articles A, B and C. If articles B and C I
add to the damage caused by the publication of the original
J
article A and are not defensible, then I think that articles B J
and C should in principle generally be made the subject of
separate complaint as separate causes of action. To do so
K would make matters simpler and clearer for the jury (or K
judge) if and when it comes to assessing damages. If on
the other hand articles B and C, whilst defamatory of and
L L
damaging to the claimant, do not repeat the libel which
was contained in article A, it appears to me to be
M objectionable in principle to allow the claimant to rely on M
articles B and C in connection with damages recoverable
for the publication of article A. Articles B and C would be
N separate torts giving rise to separate claims for damages. N
If on the other hand articles B and C consist in part of the
O
repetition of the libel contained in article A and in part of O
other distinct libels on the claimant, formidable problems
will in my opinion arise in disentangling the recoverable
P and the irrecoverable damage in respect of article A. P
27. My starting point is therefore that there are sound reasons
Q both of principle and of practice why a claimant, whether Q
an individual or a corporation, should not be permitted to
seek to recover increased damages in respect of the
R publication by the defendant of article A by reasons of the R
publication by that defendant of subsequent articles B and
S C which are not themselves the subject of complaint.” S
T T
U U
V V
- 7 -
A A
B
9. Now is not the occasion for me to come to a definitive view B
on these seemingly conflicting authorities. It would be sufficient for the
C C
purpose of the defendant’s application if the view of Eady J is reasonably
D
arguable. And I think it is. D
E 10. Mr Chow next submitted that if it is permissible for the E
plaintiffs to seek to recover, as a consequence of the original publication,
F F
the loss or damage which they have allegedly suffered in the Mainland by
G reason of the Republications (rather than as separate causes of action), G
PRC law, being the lex loci delicti, is the law with the most significant
H H
relationship with the occurrence and with the parties in relation to the issue
I of damage allegedly sustained by the plaintiff in the Mainland : Boys v I
Chaplin [1971] AC 356, per Lord Hodson at pp 377, 378 and 382 and per
J J
Lord Wilberforce at pp 391-392; Red Sea Insurance Co Ltd v Bouygues SA
K [1995] 1 AC 190, per Lord Slynn at p 206. K
L L
11. I agree with Mr Chow that it is reasonably arguable that the
M extent of the defendant’s liability for the plaintiffs’ loss and damage M
suffered mostly in the Mainland is governed by PRC law as the lex loci
N N
delicti.
O O
12. For the above reasons, I allowed the defendant’s amendment
P application. It follows that its application for expert evidence on PRC P
law should be allowed. And I so ordered.
Q Q
R R
S
(J Poon) S
Judge of the Court of First Instance
High Court
T T
U U
V V
- 8 -
A A
Ms Eva Sit, instructed by Herbert Smith Freehills, for the plaintiffs
B B
Mr Anderson Chow SC leading Ms Queenie Lau, instructed by Deacons,
C C
for the defendant
D D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
BAWANG INTERNATIONAL (GROUP) HOLDING LTD AND ANOTHER v. NEXT MAGAZINE PUBLISHING LTD
A A
HCA 1109/2010
B B
IN THE HIGH COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C
COURT OF FIRST INSTANCE
D D
ACTION NO 1109 OF 2010
E ------------------------ E
F
BETWEEN F
BAWANG INTERNATIONAL (GROUP) 1st Plaintiff
G G
HOLDING LIMITED
H BAWANG (GUANGZHOU) COMPANY LIMITED 2nd Plaintiff H
I I
and
J J
K NEXT MAGAZINE PUBLISHING LIMITED Defendant K
L L
------------------------
M M
Before : Hon Poon J in Chambers
N Date of Hearing : 30 April 2013 N
Date of Decision : 30 April 2013
O O
Date of Reasons for Decision : 20 May 2013
P P
----------------------------------------------------
REASONS FOR DECISION
Q ---------------------------------------------------- Q
R 1. On 30 April 2013, I allowed the defendant’s application for R
amendment of its defence and counterclaim and gave directions for filing
S S
of expert evidence on PRC law. I had indicated that I would give my
T reasons in writing, which I now do. T
U U
V V
- 2 -
A A
B
2. The 1st plaintiff is a publicly listed company in Hong Kong. B
nd
The 2 plaintiff is based in Guangzhou. The defendant is the publisher
C C
of Next Magazine, a widely circulated and popular magazine in Hong
D
Kong. D
E 3. On 14 July 2010, Next Magazine published an article stating E
that the Bawang shampoo, the plaintiffs’ products, sold in Hong Kong
F F
contained a carcinogen. The plaintiffs considered the article defamatory
G and commenced the present action on 21 July 2010. In paragraph 9 of the G
re-amended statement of claim, the plaintiffs pleaded :
H H
“9A Moreover, the defendant knew and/or intended that the
I Words, or their gist, should be republished in the PRC1 I
media, or should reasonably have anticipated that they
would be so republished, and the defendant’s publication
J of the Words did lead to extensive media coverage, J
repetition and republication of the Words or their gist in
K PRC newspapers and internet sites. Within one day of K
the publication of the Words (by 15 July 2010), the Words
or their gist had been republished in at least 53 PRC
L newspapers and internet sites, and within a week of the L
publication of the Words (by 21 July 2010), the Words or
their gist had been republished in over 200 PRC
M M
newspapers and internet sites, a substantial number of
which had nationwide circulation.”
N N
4. The plaintiff claimed, among other things, loss of business
O O
and profits as a result of the publication and republication of the Words for
P
the period between 15 July 2010 and 30 June 2011 in the tune of RMB448 P
million suffered by the 1st plaintiff out of which some RMB415 million is
Q Q
attributable to the 2nd plaintiff. As particularized, the bulk of the
R
plaintiffs’ loss occurred in the Mainland. R
S S
T T
1
For the purpose of para 9A, PRC means the Mainland.
U U
V V
- 3 -
A A
B
5. At the hearing before me, Ms Sit, for the plaintiffs, confirmed B
that the plaintiffs relied on the republications in the Mainland as a
C C
consequence of the original publication in Hong Kong for the purpose of
D
recovery of damage. They do not seek to rely on the republications as D
separate causes of action.
E E
6. The defendants applied to amend the defence in order to raise
F F
an issue of PRC law relating to the recoverability of damage arising from
G the republications in the Mainland in these terms : G
H
“11A. As to paragraph 9A: H
(1) The second sentence of paragraph 9A is not admitted.
I (1A) Even if, which is not admitted, there was extensive I
media coverage, repetition or republication of the
Words or their gist in PRC newspapers and internet
J J
sites (hereinafter referred to as the ‘Republications’)
(for the purpose of this pleading, the expression ‘PRC’
K shall exclude Hong Kong and Macau) : K
(a) The Republications took place in the PRC, and
L the bulk of any loss or damage which the L
plaintiffs might have suffered in consequence of
the Republications (including expenses incurred
M to counteract and redress the effect of the Words M
as alleged in paragraph 10 and loss of business
N and profits as alleged in paragraph 11) would N
also have occurred in the PRC.
O (b) Under PRC law : O
(i) the Republications by persons or parties other
P
than the defendant (hereinafter referred as the P
‘Republishers’) constitute separate and
independent causes of action for which the
Q Republishers are legally liable to the Q
plaintiffs :
R (ii) the defendant is neither jointly, nor jointly R
and severally, liable with the Republishers to
the plaintiffs in respect of the Republications :
S S
(iii) in circumstances where the original
publication of the Words by the defendant
T and the Republication by the Republishers T
U U
V V
- 4 -
A A
together cause the same damage but the act
B B
of either could not or would not on its own be
sufficient to cause the entire loss and damage
C suffered by the plaintiffs in the PRC, the C
defendant would only be liable to the
plaintiffs for its own original publication of
D the Words and the extent of its liability would D
only be for a proportional share of such loss
and damage as may be determined by the
E E
People’s Court in the PRC (taking into
account matters such as the degree and extent
F of fault, considerations of causation and F
remoteness, principle of fairness and policy
considerations), and the defendant is entitled
G to rely on this principle to limit its liability G
even if the plaintiffs choose to sue only the
H defendant but not the Republishers. H
(c) It is noted that the plaintiffs are suing only in
I respect of the original publication of the Words I
in Hong Kong and are not seeking to claim in
respect of the Republications in the PRC as
J separate causes of action. J
(d) To the extent that the plaintiffs are suing the
K defendant in respect of the original publication of K
the Words but seek to recover as a consequence
of that original publication the loss or damage
L L
which they have allegedly suffered in the PRC
by reason of the Republications, the extent of the
M defendant’s liability for such loss or damage M
would be matters of substance and not procedure
and thus is governed by PRC law as being the lex
N loci delicti or as having the most significant N
relationship with the occurrence and the parties.
O (2) Save as aforesaid, paragraph 9A is denied.” O
P 7. Mr Chow, SC, for the defendant, argued that doubt has been P
cast on the proposition that the claimant has a choice between suing on the
Q Q
further publication as a separate cause of action or treating the further
R publication as increasing the damage flowing from the first : Gatley on R
Libel and Slander, 11th Edn, para 6.36. Slipper v BBC [1991] 1 QB 283
S S
is usually regarded as the authority in support of the above proposition,
T where Bingham LJ (as then was) treated the further publication as T
U U
V V
- 5 -
A A
B
increasing the damage flowing from the first as a legitimate claim even B
though in that case, the film reviews in question could not amount to
C C
publication or republication of the libel and therefore could not found a
D
separate cause of action. Bingham LJ’s view is now open to doubt : see D
Bautrina v Times Newspaper Ltd [2010] EMLR 18, per Eady J at paras 51-
E E
53 :
F “51. Mr Barca raises a fundamental point of principle in F
relation to how the law now appears to treat claims for
additional damage where the later publications have not been
G G
sued upon as giving rise to a separate cause of action. He
referred, in particular, to the words of Bingham L.J. (as he then
H was) in Slipper, which was concerned with damage flowing from H
the reviews of the television programme. At p 296G-H, his
Lordship accepted that the plaintiff could not found a cause of
I action on the film reviews as amounting to publication or I
republication of the libel by the BBC. Nevertheless, he went on
to acknowledge the legitimacy of a claim in respect of the
J J
damage caused by those reviews as part of the damage alleged to
flow from the libelous publication itself.
K K
52. Mr Barca queries the juridical basis of the proposition that
a claimant can recover damages flowing from a publication in
L respect of which he could not establish primary liability on the L
part of the defendant. It is difficult to reconcile these two
propositions as a matter of causation. Attention is drawn by the
M learned editors of Gatley (in fn 281 on p 203) to observations M
made in the Queensland case of Timms v Clift [1998] 2 Qd R 100
N Qd CA, at 108: N
‘If, as was held, the plaintiff had no right to recover in
O respect of the cause of action for the second publication, O
that in the magazine, it is difficult to understand why the
cause of action in respect of the first to damages in respect
P of the second publication.’ P
53. It may be, as Mr Barca suggests, that what the Court of
Q Appeal in Slipper was recognizing implicitly was that it Q
would have been open to the plaintiff to sue on any of the
reviews, as distinct causes of action, insofar as they simply
R R
republished the words of the libel itself. ... He cited
particular passages in the judgments of Stocker LJ, at
S pp 295G-296E and Slade LJ, at pp 300F-300H and 302D- S
303A. The latter made reference to the BBC being in a
position reasonably to foresee that newspaper reviews
T would repeat the defamatory sting. It seems as though T
U U
V V
- 6 -
A A
the analysis should be in terms of foreseeability and novus
B B
actus interveniens. If this were not so, submits Mr Barca,
all a claimant would ever need to do in respect of
C ‘republications’ would be to claim damages by way of C
aggravation. There would never be any need to go
through the disciplines of establishing a separate cause of
D action in its own right.” D
E 8. Mr Chow further submitted that the doubt expressed by E
Eady J is consistent with the reasoning by Gray J in Collins Stewart Ltd v
F F
The Financial Times Ltd (No 2) [2006] EMLR 5, at paras 26-27 :
G G
“26. Such is the relatively generous ambit of recovery of
compensatory damages in a libel action. What is the
H position where a claimant is the subject of a series of H
articles? There are various possibilities. Assume that
the defendant publishes three defamatory articles referring
I to the claimant, articles A, B and C. If articles B and C I
add to the damage caused by the publication of the original
J
article A and are not defensible, then I think that articles B J
and C should in principle generally be made the subject of
separate complaint as separate causes of action. To do so
K would make matters simpler and clearer for the jury (or K
judge) if and when it comes to assessing damages. If on
the other hand articles B and C, whilst defamatory of and
L L
damaging to the claimant, do not repeat the libel which
was contained in article A, it appears to me to be
M objectionable in principle to allow the claimant to rely on M
articles B and C in connection with damages recoverable
for the publication of article A. Articles B and C would be
N separate torts giving rise to separate claims for damages. N
If on the other hand articles B and C consist in part of the
O
repetition of the libel contained in article A and in part of O
other distinct libels on the claimant, formidable problems
will in my opinion arise in disentangling the recoverable
P and the irrecoverable damage in respect of article A. P
27. My starting point is therefore that there are sound reasons
Q both of principle and of practice why a claimant, whether Q
an individual or a corporation, should not be permitted to
seek to recover increased damages in respect of the
R publication by the defendant of article A by reasons of the R
publication by that defendant of subsequent articles B and
S C which are not themselves the subject of complaint.” S
T T
U U
V V
- 7 -
A A
B
9. Now is not the occasion for me to come to a definitive view B
on these seemingly conflicting authorities. It would be sufficient for the
C C
purpose of the defendant’s application if the view of Eady J is reasonably
D
arguable. And I think it is. D
E 10. Mr Chow next submitted that if it is permissible for the E
plaintiffs to seek to recover, as a consequence of the original publication,
F F
the loss or damage which they have allegedly suffered in the Mainland by
G reason of the Republications (rather than as separate causes of action), G
PRC law, being the lex loci delicti, is the law with the most significant
H H
relationship with the occurrence and with the parties in relation to the issue
I of damage allegedly sustained by the plaintiff in the Mainland : Boys v I
Chaplin [1971] AC 356, per Lord Hodson at pp 377, 378 and 382 and per
J J
Lord Wilberforce at pp 391-392; Red Sea Insurance Co Ltd v Bouygues SA
K [1995] 1 AC 190, per Lord Slynn at p 206. K
L L
11. I agree with Mr Chow that it is reasonably arguable that the
M extent of the defendant’s liability for the plaintiffs’ loss and damage M
suffered mostly in the Mainland is governed by PRC law as the lex loci
N N
delicti.
O O
12. For the above reasons, I allowed the defendant’s amendment
P application. It follows that its application for expert evidence on PRC P
law should be allowed. And I so ordered.
Q Q
R R
S
(J Poon) S
Judge of the Court of First Instance
High Court
T T
U U
V V
- 8 -
A A
Ms Eva Sit, instructed by Herbert Smith Freehills, for the plaintiffs
B B
Mr Anderson Chow SC leading Ms Queenie Lau, instructed by Deacons,
C C
for the defendant
D D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V