DEFAMATION AND LIBEL ORDINANCE, 1887

DEFAMATION AND LIBEL ORDINANCE, 1887

No. 1 of 1887.

AnOrdinance to amend the law respecting defamatory words
and libel.

[22nd February, 1887.]

1. This Ordinance may be cited as the Defamation and
Libel Ordinance, 1887.

2. In this Ordinance,

(a) ' Information includes indictment.

(b) ' Newspaper and ' proprietor ' have the same rnean-
ings respectively as in the Printers and Publishers Ordin-
ance, 1927; and ' newspaper ' includes any other periodical
publication.

(c) ' Report of the Legislative Council includes any
report, paper, vote or other proceeding of the Council.

* See No. 41 of 1932, Third Schedule.
As amended hy Lnw Rev. Ord., 1937.





3. In any action for defamation it shall be competent to
the defendafit (after notice in writing -of his inte 1 ntion to do
so duly given to the plaintiff within a reasonable time before
the trial of the cause) to give in evidence in mitigation of
damages that he made or offered an apology to the plaintiff for
such defamation before the commencement of the action, or as
soon afterwards as he had an opportunity. of doing so in case
the action has been commenced before there was an opportunity
of making or offering such apology-

4. In an action for a libel contained in any public news-
paper it shall be competent to the defendant to set up as a
defence that the libel. was inserted in the newspaper without
actual malice and without gross negligence, and that before
the commencement of th e action, or at the earliest opportunity
afterwards, he inserted in the newspaper a full apology for
the libel, or if the newspaper in which the libel appeared is
ordinarily published at intervals exceeding one week, had offered
to publish the said apology in any newspaper. to be selected by
the plaintiff in the action.. -and to such defence to. the action
it shall be competent to the plaintiff to reply generally denying
the whole of such defence: Provided that it shall not be
competent to any defendant in such action to set up any defence
as aforesaid without at the same time making a 'payment of
money into court by way of amends, and every such defence so
filed without such payment into court shall be deemed a nullity
and may be treated as such by the-plaintiff in the action.

[s. 5, tep. Law Revision Ordinance, 1937.]

6. Every person who maliciously publishes any defamatory
libel, knowing the same to be false, shall be liable to imprison-
ment, without hard labour, for any term not exceeding two
years, and, in addition, to pay such fine as the court may
award.

7. Every person who maliciously publishes any defamatory
libel shall be liable to imprisonment, without hard labour, for
any term not exceeding one year, and to pay such fine as the
court may award.

8-(1) On the trial of ariv information for a defamatory
libel, the defendant having pleaded such plea as is hereinafter





mentioned, the truth of the matters charged may be inquired
into, but shall. not amount.to a defence, unless it was for the
public benefit that the matters charged should be published,

(2) To entitle the defendant to give evidence of the truth
of the matters charged as a defence to the information, it shall
be necessary for him, in pleading to the' information, to allege
the truth of the matters charged in the manner now required
in alleging a Justification to an action of defamation, and further
to allege that it was for the public benefit that the matters
charged should be published, and the particular fact or facts
by reason whereof it was for the public benefit that the matters
charged should be published, to which plea the prosecutor shall
be at liberty to reply generally denying the whole thereof.

(3) If after Such plea the defendant is convicted on the
information, it shall be competent to the court, in pronouncing
sentence, to consider whether the guilt of the defendant is
aggravated or mitigated by the plea and by the evidence given
to prove or to disprove the same: Provided that the truth of
the matters charged in the alleged libel complained of by the
information shall in no case be inquired into without such plea
of justification: Provided, also, that in addition to such plea
it shall be competent to the defendant to plead a plea of not
guilty: Provided, further, that nothing in this Ordinance shall
take away or prejudice any defence under a plea of not guilty
which it is now competent to the defendant to make under such
plea to any information for defamatory words or libel. .

9. Whenever, on the trial of any information for the
publication of a libel, under the plea of not guilty, evidence has
been given which establishes a presumptive case of publication
against the defendant by the act of any.other person by his
authority, it shall be competent to the defendant to prove that
the publication was made without his authority, consent, or
knowledge, and that the publication did not arise from want of
due care or caution on his part.

10.-(1) In the case of any information at the instance of
a private prosecutor for the publication of any defamatory libel,
if Judgment is given for the defendant, he shall be entitled to
recover from the prosecutor the costs sustained by the defendant
by reason of the information, and, upon a special plea of
justification to the information, if the issue ~s found for the





prosecutor, he shall be entitled to recover from the defendant
the costs sustained by the prosecutor by reason of such plea.

(2) Costs so to be recovered by the defendant or prosecutor
respectively shall be taxed by the proper, officer of the court
before which 'the information is tried.

11. It shall be lawful for any person who is a defendant
in any civil or criminal proceeding, in whatever manner
commenced for or on account or in respect, of the publication
by such person or by his servant of any report of the Legislative
Council by or under the authority of such Council, to bring
before the court in which such proceeding has been commenced,
or before a judge, first giving twenty-four hours' notice of his
intention to do so to the plaintiff or prosecutor in such proceed-
ing, a certificate under the hand of the Governor, or of the
presiding member of such Council for the time being, or of
the Clerk of Councils, stating that the report in respect whereof
the proceeding has been commenced was published by such
person or by his servant by order or under the authority of such
Council, together with an affidavit verifying such certificate ;
and the court or judge shall thereupon immediately stay such
proceeding, and the same, and every writ or process issued,
shall be and shall be deemed and taken to be finally put an end
to, determined, and superseded.

12. In case of any civil or criminal proceeding to be com-
menced for or on account or in respect of the publication of any
copy of any such report it shall be lawful for the defendant, at
any stage of the proceeding, to lay before the court or judge the
report, and the copy, together with an affidavit verifying the
report, and the correctness of the copy; and the court or judge
shall thereupon immediately stay such proceeding, and the same,
and every writ or process issued therein, shall be and shall
be deemed and taken to be finally put an end to, determined,
and superseded.

13. It shall be lawful in any civil or criminal proceeding
to be commenced for printing any extract frorn or abstract of
any such report to give in evidence, in a civil case in support
of any allegation in defence, and in a criminal case under the
general issue, the report, and to show that the extract or abstract
was published bond fide and without malice; and if such is the





opinion of the jury, a verdict of not guilty shall be entered for
the defendant.

14. A fair and accurate report in any newspaper of proceed-
ings publicly heard before any court shall, if published contem-
poraneously with such proceedings, be privileged: Provided
that nothing in this section shall authorize the publication of
any blasphemous or indecent matter.

15.-(1) A fair and accurate report published in any news-
paper of the proceedings of a public meeting, or (except where
neither the public nor any newspaper reporter is admitted) of
any meeting of a body, board, or authority formed or constituted
under the provisions of any Ordinance or of any committee
appointed by any such body, board, or authority, or of
any meeting of any commissioners authorized to act by
Letters Patent, Act of Parliament, Ordinance, warrant under
the Royal Sign Manual, or other lawful warrant or authority,
select committees of the Legislative Council, and justices of the
peace in licensing sessions assembled,. and the publication, at
the request of any Government office or department or of
the Commissioner of Police, of any notice or report issued
by thern or him for the information of the public, shall be
privileged, unless it is proved that such report or publication
was published or made maliciously: Provided that nothing in
this section shall authorize the publication of any blasphemous
or indecent matter: Provided, also, that the protection intended
to be afforded by this section shall not be available as a defence
in any proceedings if it is proved that the defendant has been
requested to insert in the newspaper in which the report or
other publication complained of appeared a reasonable letter or
statement by way of contradiction or explanation of such report
or other publication, and has refused or neglected to insert the
same: Provided, further, that nothing in this section shall be
deemed or construed to limit or abridge any privilege now by
law existing or to protect the publication of any matter not
of public concern and the publication of which is not for the
public benefit.

(2) For the purposes of this section, ---public meeting
means any meeting bond fide and lawfully held for a lawful
purpose, and for the furtherance or discussion of any matter

As amended by Law Rev. Ord., 1937,





of public concern, whether the admission thereto is general or
restricted.

16. A magistrate, on the hearing of a charge against a
proprietor, publisher, or editor, or any person responsible for
the publication of a newspaper, for a libel published therein,
may receive evidence as to the m atters charged in the libel being
true, and as to the report being fair and accurate and published
without malice, and as to the publication being for the public
benefit, and as to any matter which, under this or any other
Ordinance or otherwi~e, might be given in evidence by way
of defence by the person charged on his trial on information,
and if the magistrate is of opinion that there is a strong or
probable presumption that the jury on the trial would acquit
the person charged he may dismiss. the case.

17. If a magistrate, on the hearing of such a charge -is of
opinion that, though the person charged is shown to 6ve been
guilty, the libel was of a trivial character, and that the offence
may be adequately punished by virtue of the powers of this
section, he shall cause the charge to be reduced into- writing
and read to the person charged, and then address a question
to him to th ' e following effect:-' Do you desire to be tried
by a jury or do you consent to the case being dealt. with
summarily? ' and if such person assents to the case being dealt
with summarily, the magistrate may summarily convict him
and adjudge him to pay a fine not exceeding two hundred and
fifty dollars.

18. At the trial of an action for a libel contained in any
newspaper the defendant shall be at liberty to give in evidence
in mitigation of damages that the plaintiff has already recovered
(or has brought actions for) damages, or has received or a-greed
to receive compensation in respect of a libel or libels to the
same purport or effect as the libel for which such action has
been brought.

19.-(1) No criminal prosecution shall be commenced against
any proprietor, publisher, editor, or any person responsible for
the publication of a newspaper for any libel published therein
without the order of a judge in chambers being first had and
obtained.





(2) The application for such order shall be made on notice
to the accused person, who shall have an opportunity of being
heard against such application.

20.-( 1 ) It shall be competent for the Supreme Court, on
an application by or on behalf of two or more defendants in
actions in respect to the same, or substantially the same, libel
brought by one and the same person, to make an order for the
consolidation of such actions; and after such order has been
made, and before the trial of the said actions, thedefendants
in any new actions instit uted in respect to the same, or sub-
stantially the same, libel shall also be entitled to be joined in
a common action on a joint application being made by such
neiv defendants and the defendants in the actions already
consolidated.

(2) In such consolidated action the jury shall assess the
whole amount of the damages, if any, in one sum, but a separate
verdict shall be taken for or against each defendant in.the same
way as if the actions had been tried separately; and if the jury
have found a verdict against the defendant or defendants in
more than one of the actions so consolidated, they shall proceed
to apportion the amount of damages which they have so found
between and against the said last-mentioned defendants; and
similar provisions shall apply if the trial is before a judge
without a jury. The judge at the trial, if he awards to the
plaintiff the costs of the action, shall thereupon make such order
as lie may deem just for the apportionment of such costs between
and against such defendants.

[s. 21, rep. No. 19 of 1917.]

22. Every person charged with the offence of libel before
any coprt of criminal jurisdiction, and the wife or husband of
the person so charged, shall be competent, but not compellable,
witnesses on every hearing at every stage of such charge.

23. Words spoken and published which impute unchastity
or adultery to any woman or girl shall not require special
damage to render them actionable : Provided that, in any action
for words spoken and made actionable by this Ordinance, a
plaintiff shall not recover more costs than damages, unless the.

judge at the trial certifies that there was reasonable ground for c. 51, s. 1.
bringing the action.

24. Nothing in this Ordinance shall apply to an ex officio Saving as to
information filed by the Attorney General or to any information ex ot;,cio
informations.
by the Registrar of the Supreme Court, by the direction of the
court, at the instance of some private individual.

[Originally No. 5 of 1887. No. 18 of 1929. Law Rev. Ord., 1937.] Short title. Interpretation. 44 & 45 Vict. C. 60, s. 1. Ordinance No. 25 of 1927. Admissibility in evidence, in mitigation of damages in action for defamation, of apology. 6 & 7 Vict. C. 96, s. 1. Right of defendant in action for libel to plead absence of malice, etc. and apology. 6 & 7 Vict. C 96, s. 2. 8 & 9 Vict. C. 75, s. 2. Publishing libel known to be false. 6 & 7 Vict. c. 96, s. 4. Publishing defamatory libel. 6 & 7 Vict. c. 96, s. 5. Trial of information for defamatory libel. 6 & 7 Vict. C. 96, s. 6. Evidence to rebut prima facie case of publication by agent. 6 & 7 Vict. C. 96, s. 7. Right of prosecutor and of defendant to costs on prosecution for private libel. 6 & 7 Vict. C. 96, s. 8. Stay of proceeding against person for publication of papers printed by order of Legislative Council upon certificate and affidavit of authority to publish. 3 & 4 Vict. C. 9, s. 1. Stay of proceeding when commenced in respect of copy of authenticated report, etc. 3 & 4 Vict. c. 9, s. 2. Defence in proceeding for printing extract from report, etc. 3 & 4 Vict. c. 9, s. 3. Privilege of newspaper report of proceedings in court. 51 & 52 Vict. C. 64, s. 3. Privilege of newspaper report of proceedings of public meeting and of certain bodies and persons. 51 & 52 Vict. C. 64, s. 4. Inquiry by magistrate as to libel being true, etc. 44 & 45 Vict. C. 60, s. 4. Provision as to summary conviction for libel. 44 & 45 Vict. C. 60, s. 5. Power to defendant to give certain evidence in mitigation of damages. 51 & 52 Vict. C. 64, s. 6. Order of judge required for prosecution of newspaper proprietor, etc. 51 & 52 Vict. c. 64, s. 8. Consolidation of actions. 51 & 52 Vict. C. 64, s. 5. Person charged may give evidence. 51 & 52 Vict. C. 64, s. 9. [cf. No. 14 of 1906.] Words imputing unchastity to woman or girl per se actionable. 54 & 55 Vict. c. 51, s. 1. Saving as to ex officio informations.

[Originally No. 5 of 1887. No. 18 of 1929. Law Rev. Ord., 1937.] Short title. Interpretation. 44 & 45 Vict. C. 60, s. 1. Ordinance No. 25 of 1927. Admissibility in evidence, in mitigation of damages in action for defamation, of apology. 6 & 7 Vict. C. 96, s. 1. Right of defendant in action for libel to plead absence of malice, etc. and apology. 6 & 7 Vict. C 96, s. 2. 8 & 9 Vict. C. 75, s. 2. Publishing libel known to be false. 6 & 7 Vict. c. 96, s. 4. Publishing defamatory libel. 6 & 7 Vict. c. 96, s. 5. Trial of information for defamatory libel. 6 & 7 Vict. C. 96, s. 6. Evidence to rebut prima facie case of publication by agent. 6 & 7 Vict. C. 96, s. 7. Right of prosecutor and of defendant to costs on prosecution for private libel. 6 & 7 Vict. C. 96, s. 8. Stay of proceeding against person for publication of papers printed by order of Legislative Council upon certificate and affidavit of authority to publish. 3 & 4 Vict. C. 9, s. 1. Stay of proceeding when commenced in respect of copy of authenticated report, etc. 3 & 4 Vict. c. 9, s. 2. Defence in proceeding for printing extract from report, etc. 3 & 4 Vict. c. 9, s. 3. Privilege of newspaper report of proceedings in court. 51 & 52 Vict. C. 64, s. 3. Privilege of newspaper report of proceedings of public meeting and of certain bodies and persons. 51 & 52 Vict. C. 64, s. 4. Inquiry by magistrate as to libel being true, etc. 44 & 45 Vict. C. 60, s. 4. Provision as to summary conviction for libel. 44 & 45 Vict. C. 60, s. 5. Power to defendant to give certain evidence in mitigation of damages. 51 & 52 Vict. C. 64, s. 6. Order of judge required for prosecution of newspaper proprietor, etc. 51 & 52 Vict. c. 64, s. 8. Consolidation of actions. 51 & 52 Vict. C. 64, s. 5. Person charged may give evidence. 51 & 52 Vict. C. 64, s. 9. [cf. No. 14 of 1906.] Words imputing unchastity to woman or girl per se actionable. 54 & 55 Vict. c. 51, s. 1. Saving as to ex officio informations.

https://oelawhk.lib.hku.hk/items/show/1427

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