Bawang International (Group) Holding Ltd And Another v Next Magazine Publishing Ltd

Judgment Date20 May 2013
Year2013
Judgement NumberHCA1109/2010
Subject MatterCivil Action
CourtHigh Court (Hong Kong)
HCA1109A/2010 BAWANG INTERNATIONAL (GROUP) HOLDING LTD AND ANOTHER v. NEXT MAGAZINE PUBLISHING LTD HCA1109A/2010 BAWANG INTERNATIONAL (GROUP) HOLDING LTD AND ANOTHER v. NEXT MAGAZINE PUBLISHING LTD HCA1109A/2010 BAWANG INTERNATIONAL (GROUP) HOLDING LTD AND ANOTHER v. NEXT MAGAZINE PUBLISHING LTD HCA1109A/2010 BAWANG INTERNATIONAL (GROUP) HOLDING LTD AND ANOTHER v. NEXT MAGAZINE PUBLISHING LTD HCA1109A/2010 BAWANG INTERNATIONAL (GROUP) HOLDING LTD AND ANOTHER v. NEXT MAGAZINE PUBLISHING LTD HCA1109A/2010 BAWANG INTERNATIONAL (GROUP) HOLDING LTD AND ANOTHER v. NEXT MAGAZINE PUBLISHING LTD

HCA 1109/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1109 OF 2010

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BETWEEN

BAWANG INTERNATIONAL (GROUP) 1st Plaintiff
HOLDING LIMITED
BAWANG (GUANGZHOU) COMPANY LIMITED 2nd Plaintiff

and

NEXT MAGAZINE PUBLISHING LIMITED Defendant
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Before : Hon Poon J in Chambers
Date of Hearing : 30 April 2013
Date of Decision : 30 April 2013
Date of Reasons for Decision : 20 May 2013

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R E A S O N S F O R D E C I S I O N

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1. On 30 April 2013, I allowed the defendant’s application for amendment of its defence and counterclaim and gave directions for filing of expert evidence on PRC law. I had indicated that I would give my reasons in writing, which I now do.

2. The 1st plaintiff is a publicly listed company in Hong Kong. The 2nd plaintiff is based in Guangzhou. The defendant is the publisher of Next Magazine, a widely circulated and popular magazine in Hong Kong.

3. On 14 July 2010, Next Magazine published an article stating that the Bawang shampoo, the plaintiffs’ products, sold in Hong Kong contained a carcinogen. The plaintiffs considered the article defamatory and commenced the present action on 21 July 2010. In paragraph 9 of the re-amended statement of claim, the plaintiffs pleaded :

“9A Moreover, the defendant knew and/or intended that the Words, or their gist, should be republished in the PRC[1] media, or should reasonably have anticipated that they would be so republished, and the defendant’s publication of the Words did lead to extensive media coverage, repetition and republication of the Words or their gist in PRC newspapers and internet sites. Within one day of the publication of the Words (by 15 July 2010), the Words or their gist had been republished in at least 53 PRC newspapers and internet sites, and within a week of the publication of the Words (by 21 July 2010), the Words or their gist had been republished in over 200 PRC newspapers and internet sites, a substantial number of which had nationwide circulation.”

4. The plaintiff claimed, among other things, loss of business and profits as a result of the publication and republication of the Words for the period between 15 July 2010 and 30 June 2011 in the tune of RMB448 million suffered by the 1st plaintiff out of which some RMB415 million is attributable to the 2nd plaintiff. As particularized, the bulk of the plaintiffs’ loss occurred in the Mainland.

5. At the hearing before me, Ms Sit, for the plaintiffs, confirmed that the plaintiffs relied on the republications in the Mainland as a consequence of the original publication in Hong Kong for the purpose of recovery of damage. They do not seek to rely on the republications as separate causes of action.

6. The defendants applied to amend the defence in order to raise an issue of PRC law relating to the recoverability of damage arising from the republications in the Mainland in these terms :

“11A. As to paragraph 9A:

(1) The second sentence of paragraph 9A is not admitted.

(1A) Even if, which is not admitted, there was extensive media coverage, repetition or republication of the Words or their gist in PRC newspapers and internet sites (hereinafter referred to as the ‘Republications’) (for the purpose of this pleading, the expression ‘PRC’ shall exclude Hong Kong and Macau) :

(a) The Republications took place in the PRC, and the bulk of any loss or damage which the plaintiffs might have suffered in consequence of the Republications (including expenses incurred to counteract and redress the effect of the Words as alleged in paragraph 10 and loss of business and profits as alleged in paragraph 11) would also have occurred in the PRC.

(b) Under PRC law :

(i) the Republications by persons or parties other than the defendant (hereinafter referred as the ‘Republishers’) constitute separate and independent causes of action for which the Republishers are legally liable to the plaintiffs :

(ii) the defendant is neither jointly, nor jointly and severally, liable with the Republishers to the plaintiffs in respect of the Republications :

(iii) in circumstances where the original...

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