February 3, 1900.]
I tell this truth Being afraid that you, gentleman, will be defrauded by him, I make the matter known and report it straightly by this note. I remain, sir,
HUT YANG. Shoes-maker,
*
What a tale of wickedness this doth unfold ?
OBSERVER.
SUPREME COURT.
26th January.
IN ORIGINAL JURISDICTION.
BEFORE HIS Onour W. Maigu GOODMAN (Acting Chief Justice) and A SPECIAL JURY.
ALLEGED LIBEL BY A CHINESE NEWSPAPER
---JUDGMENT FOR THE PLAINTiff.
In this case U. Nervegna, of Wyndham Street, merchant, claimed from Wong Shu Tong, of 14, Prava Central, as proprietor of the Tsuu Wan Yat Po, and Ng Sai Jung, of 39 Gough Street, as printer and publisher of the said newspaper, damages for libel.
The following composed the jury-Messrs. J. Orange (foreman), F. D. Goddard, D. W. Craddock, V. A. Caesar-Hawkins, John Thur. burn, A. Turner, and E. Osborne. It was agreed that the jurors should be remunerated at the rate of $10 a day each.
Mr. Slade (instructed by Messrs Mounsey and Brutton) appeared for the plaintiff, and Mr. Robinson and Mr. Francis, Q.C. (instructed by Mr. C. Ewens), appeared for the defendants, Mr. Robinson for the first defendant and Mr. Francis for the second.
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His Lordship, in summing up, said-Gentle men of the jury, this is an action of libel brought by Mr. Nervegna, a merchant carrying on business in this colony, against the first de. fendant, as one of the proprietors, and the second defendant, as the printer and publisher of a Chinese daily newspaper called the Tsun Wan Yat Po, claiming damages against the defendants for a paragraph which appeared in the issue of 9th June, 1899. The plaintiff alleges that the paragraph in question contains a false and defamatory libel reflecting upon his character and reputation as a merchant, and he has brought this action, I presume, to vindicate his character and to ask you to award him sub- stantial damages such as may make some repar- ation to him for the injury dous to his reputation and the pecuniary loss he alleges he has sns- tained by reason of the alleged libel. It appears that for a short time, the plaintiff acted as merchant Consul for Italy for the two pro. vinces of Kangtang and Kwangsi in China, till he was relieved at his own request by Lieutenant Guida about August, 1898. It also appears that he acted in a similar capacity, i.e. as merchaut cousul for Italy at Hongkong, until he was relieved by the present regular Italian Consul, Mr Volpicelli, about May or June, 1899. No evidence bas been given of any impropriety on the part of the plaintiff, either as a merchant or as Acting Consul, and he handed over his temporary ap. pointments to gentlemen in the regular Con- sular service of Italy in ordinary course and at his own wish. The plaintiff stated in his evidence that he had opened a branch of his business at Wachow, in November, 1898, and between November, 1898, and June, 1898; had made a profit over and above all expenses of $3,000. He also stated that he had had con siderable business transactions with the Kwong Tung Lun Tai firm at Canton and was negotiat- ing three contracts with them; dated, as to two of the written sold notes, June 2nd, 1899, and as to the third, dated June 6th, 1899, when, on 9th June, 1899, the paragraph complained of appeared in the defendant's newspaper. It was written in Chinese, but the translation is as follows:
"We learn that a certain merchant who had once acted as Italian consul at Canton at Ut, has in consequence of certain affairs been repri- manded and dismissed. Recently, the said mer- chant had conspired with the Chinese to work a certain coal mine, and relying on the proteo- tion of a foreign-flag resisted and refused to pay lekin. This the high autorities have found
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CHINA OVERLAND TRADE REPORT.
out from enquiries made, and decided to thor. onghly investigate the matter. It is not known what may happen afterwards.
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Passing to the question of special damage. I may point out that special damage is such a loss as the law will not presume to have fol- lowed from the libel, but which depends on the special circumstances of the case and must be claimed in the pleadings and proved at the trial.'
Paragraph 8 of the Petition deals with the alleged special damage in the case of the official Au Lap Sam at Wuchow, while paragraph ↑ deals with the special transactions with the Kwong Tung Lun Tai drm at Canton, and paragraph 10 deals with the refusal of that firm after the libel to have any farther transac- tions with the plaintiff. The evidence is fresh in your minds, the documents put in will be handed to you and you will bear in mind the remarks of counsel for both sides on the sub- ject. As regards the Kwong Tung Lun Tai firm you will remember their letter to the plaintiff in which the writer states that having seen the paragraph in ques-tion, 'I became much frightened lest should be involved in trouble. After thoroughly con- sidering the matters, I feel constrained to call your attention to it and to give you notice that my connections in all business transactions in which you and I are interested must cease from to-day with a view to avoid unforseen evils.' You have heard the plaintiff's evidence, and if that letter is genuine and all business has ceased between that firm and the plaintiff on account of the libel, to the loss and detriment of the plaintiff, undoubtedly he is entitled to special damage. When you have assessed general and special damage you will be able to arrive at the total damage you think will meet the justice and requirements of the case.
of damages and which also allows a plea that the libel was inserted without actual malice and without gross negligencs, and that Now, in the first place, it will be for you to fall apology was inserted at the earliest oppor decide whether that paragraph refers to the tunity, and a sum of money has been paid into plaintiff. In view of the evidence and of the Court by way of amends. The defendants have fact that Mr. Francis, the experienced counsel not taken advantage of this Ordinance. No for the second defendant, admitted that there such apology has been forthcoming and no must be a verdict against h a client (although he money has been paid into Court. Coming, argued it should be for a small amount only) now, to the question of damarges, this is spec- you will probably have no difficulty in deciding ially a matter for the jury to decido. In the whether the plaintiff was alluded to. It not, present case both general and special damages tbere is an eud of the cakes. But assuming are claimed. General damages are such as the that you find that the plaintiff was the party law will presume to be the natural and probable referred to in that paragraph, what are the facts? consequences of the defendant's conduct. Such The plaintiff has sworn that he was neither damages may be recovered wherever the im- reprimanded nor dismissed from the Consulship.mediate tendency of the words is to impair the He has sworn that he never had anything what plaintiff's reputation, although no actual pe. ever to do with working any coal mine with | cuuiary loss has in fact resulted. Such dam. Chinese or anybody else, although he has images under this head should be given as, in ported coal to Canton. As regards resisting your opinion, will fairly compensate the plain- or refusing to pay lekin, his evidence was astiff for the injury done to his reputation by the follows:-" I have protested against payment of libel....After the speeches of counsel on both a porterage charge which was not due and was sides, I may fairly leave the amount to you to in excess of the lekin and proper charges. I settle as regards general damages. have never relied on the protection of a foreign flag to avoid payment of lekin. I have always paid it at Capsuimun, duty, lekin, cbinglee (what ever that may mean) and I paid under protest porterage at Canton." He also states that his protests are still under consideration in Peking, No evidence has been called to contradict the plaintiff's statements, and in face of his uncon- tradicted evidence, what possible justification could there be to publish such a paragraph as appeared in the newspaper of 9th June about him? Is the paragraph true or false ? Is it defamatory or not? If you find the allegations are false and defamatory then it constitutes a libel and is actionable. A libel is u publication without justification or lawful excose c lculated to injure the reputation of another by exposing bim to hatred, contempt, or ridicule. It is for you to consider whether, under the circumstances in which this paragraph appeared, reasonable men who read it would be likely to understand it in a libellous sense. As regards the allegation that the publication was false and malicious, there are occasions when actual malice must be proved, as for instance where the occasion is a privileged one. The present case raises no question of privilege, and if the statement is false and defamatory the law infers malice un- less there is some justification for the publica- tion. No such justification has been proved or attempted to be proved in this case, and here- fore you will probably be of opinion that the paragraph in question is a libel giving rise to a claim for damages. It will be better to consi- der the question of liability and damages as 1 will regards the two defendants separately. take the case of the second defendant first. He is the printer and publisher of the paper, aud is liable for having published this libel, assuming that you find it to be a libel. The plaintiff has set out a somewhat elaborate innuendo or al. I am legation as to the meaning of the libel. inclined to think that this is a little overdone, and I would suggest to you to read the words in the light of the evidence, and attach such meaning es you think that reasonable meu reading them would be likely to attach to them. If the plaiutiffs shows a good cause of action, taking the words in their natural meaning, he is entitled to succeed erou if he cannot show they meant everything contained in the elabor- ate innuendo. In assessing damages you are, as that great judge, Baron Parke, laid down, entitled to look at the whole conduct of the time the libel was defendants from the published down to the time you give your verdict. Mr. Francis has called your attention to the insertion of Mr. Volpicelli's letter in the issue of the 16th June, 1899. It is for you to consider whether that insertion, accompanied by the editorial comment, is any pilliation of the libel. Was that the sort of corrective or antidote the plaintiff might fairly have expected to be ad- ministered to correct the poison of the libel? 'It may be,' says the editor, 'that the former letter from our friend (ie. the libel) is not true and complete.' That is a poor sort of corrective. | One would have looked for an expression of regret and withdrawal rather. Now in view of the fact that libels occasionally creep into respectable papers, a remedy is provided by Ordinance 5 of 1887 which allows offer of an apology to be giren in evidence in mitigation
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In the olden days the Press was more or less gagged. Now a newspaper can publish what it pleases, subject to take the legal consequence of any libel which it may contain.
As regards, therefore, the second defendant, if you find that he was the printer and publisher of the libel, and assess the damages, there can be no doubt of his liability. Passing to the case of the first defendant it has been argued that al though he is one of the proprietors of the paper yet that, having entered into a contract with the second defendant which it is alleged makes the second defendant lessee of the paper, on pay. ment of an annual sum of $2,000 to the pro pristors, the first defendant cannot be held civilly liable for any libel appearing in the paper. The document has been put in evidence, and it will be for you to judge whether it is a genuine and boni fide document. Assuming that it is, it remaius for me to lay down my views of the law in the circumstances. Lord Kenyon, in the case of Rex v. Walter, 3 Espinasses Report's, p. 21, said, “he was clearly of opinion that the proprietor of a newspaper was answerable criminally as well as civilly for the acts of his servants or agents for miscon duct in conducting a newspaper." civil liability no alteration has been made in the law from that date relieving a proprietor from such a liability. Then Lord Tenterden, ❘ in Rex v. Gutch and others, in 1829, reported in 1 Moody and Malkiu's Reports, p. 433, adopts at p. 437 the same view and says it is conformable to principle and common sense. "Surely," says he, "a person who derives proft ́from and who furnishes means for carrying on
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