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Jonathan Lu And Others v Paul Chan Mo-po And Another

Judgment Cited authorities 19 Cited in Precedent Map Related
Vincent
Judgment Date07 October 2015
Year2015
Judgement NumberHCA370/2012
Subject MatterCivil Action
CourtHigh Court (Hong Kong)
HCA370A/2012 JONATHAN LU AND OTHERS v. PAUL CHAN MO-PO AND ANOTHER

HCA 370/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 370 OF 2012

____________

BETWEEN

JONATHAN LU (盧冠中) 1st Plaintiff
CAITLIN LU (盧亮臻) 2nd Plaintiff
CARL LU (盧光漢) 3rd Plaintiff
and
PAUL CHAN MO-PO (陳茂波) 1st Defendant
FRIEDA HUI (許步明) 2nd Defendant

____________
Before: Hon To J in Chambers
Dates of Written Submissions: 22 May and 12 June 2015
Date of Decision: 7 October 2015

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D E C I S I O N

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INTRODUCTION

Introduction

1. This is a defamation action tried by a judge with a jury. The trial before the jury concluded. This judgment is about the outstanding issue of qualified privilege and costs of the action.

2. The 1st and 2nd Plaintiffs are twin brother and sister. At the material time, they were studying Year 13 at Chinese International School (“CIS”). The 3rd Plaintiff is their father and a member of the board of governors of CIS (“Board of Governors”).

3. The 1st Defendant was, at the material time, a member of the Legislative Council of Hong Kong representing the Accountancy constituency. He was later appointed the Secretary for Development. The 2nd Defendant is his wife who is a director in a human resources consultancy. Their daughter studied in the same year as the 1st and 2nd Plaintiffs in CIS.

4. In November 2011, rumours were circulating among students of CIS and their parents that the 1st Plaintiff was suspected of having cheated in a test, but got away with it because his father was a member of the Board of Governors. The rumours were, according to the Defendants, sparked off by complaints made by two classmates.

5. One day towards the end of November 2011, while the 2nd Defendant was driving in her car with her daughter in Causeway Bay, her daughter saw the 3rd Plaintiff and his wife on the street. That prompted her daughter to tell the 2nd Defendant the rumours. Between 1 and 16 December 2011, the Defendants published five emails and one documents for the purpose of a meeting with the headmaster of CIS (the “summary”) to three senior members of the school management and 13 parents.

6. The Plaintiffs’ case is that these emails and the summary contained statements which were defamatory of the Plaintiffs (the six sets of “Offending Words”). The Defendants do not dispute they were the publishers of the emails and summary. Without pleading justification, they deny the Offending Words were defamatory of the Plaintiffs and put the Plaintiffs to strict proof. But, in the event that the Offending Words are found to be defamatory, they rely on qualified privilege.

7. At the end of an eighteen days’ trial, the jury returned the verdicts that (a) all the six sets of Offending Words were defamatory of the Plaintiffs[1]; (b) four of the six sets of Offending Words were published by the Defendant maliciously; and (c) awarded damages of $100,000, $50,000 and $80,000 to the 1st, 2nd and 3rd Plaintiffs respectively, in total sum of $230,000. In addition, the jury returned a number of special verdicts on facts based on questions put to them by counsel.

8. The jury did not find the 1st Offending Words contained in the email of 1 December 2011 (“1 December Email”) and the 5th Offending Words contained in the second email of 4 December 2011 (“4 December 2nd Email”) were published maliciously. Given the above verdicts, it becomes necessary for this court to decide whether as a matter of law the two emails were published on privileged occasions. That is a question of law for the judge alone and not the jury: Gatley[2]. During the adjournment, the parties agreed that this question be disposed of by written submission without a hearing.

9. At trial, the Defendants were represented by Mr Jason Pow and Mr Victor Dawes. However, the present submissions were prepared by Mr Benjamin Yu and Mr Victor Dawes. The Plaintiffs were represented throughout by Mr Robert Whitehead and Mr Lawrence Ng.

Some general legal principles

10. Counsel have no disagreement that the following well‑established principles apply to this case.

11. First, the burden of proving that the publication of defamatory material was made on an occasion of qualified privilege is on the defendant: Phipson on Evidence[3].

12. Second, whether this burden is discharged can only be answered by examining the pleaded defence. The defendant must plead the facts and circumstances which render the occasion of publication an occasion of qualified privilege. Mr Whitehead quoted Kwok Chin Wing v 21 Holdings Ltd[4] and Sinoearn International Ltd v Hyundai-CCECC Joint Venture[5] in support of the above proposition. In Kwok Chin Wing, Ma CJ (as he then was) said that this is necessary because “it is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial”[6]. This is echoed by Ribeiro PJ in Sinoearn International where he said pleadings “impose a necessary discipline and are fundamental to enabling every procedural facet of the adversarial system to operate fairly”[7]. Though the two cases were not concerned with defamation, the principles are basic principles of general application.

13. Third, the burden of proving a pleaded defence can only be discharged by way of evidence. This is also trite law. In Chau Hoi Shuen Solina Holly v SEEC Media Group Ltd[8], which is a case on defamation and qualified privilege, Cheung JA said:

“ … The defence as reformulated depends on his belief that the defamatory content does not constitute an actionable libel. Contrast the position of the main publisher, in order to meet the claim, he must establish his defence such as fair comment, qualified privilege etc by way of evidence.”

The burden is on the Defendants to prove the facts and circumstances necessary for the existence of the privilege: Gatley[9]. It shall then be for the judge to rule whether the occasion is privileged: Gatley[10].

14. Fourth, the question whether the occasion is privileged is a question of law solely for the judge and not for the jury. However, if there are questions of fact in dispute upon which this question depends, they must be left to the jury, but when the jury has found the facts, it is for the judge to decide whether the occasion is privileged: Hebditch v MacIlwaine[11]; Adam v Ward[12]; and Gatley[13].

15. Fifth, at common law privileged occasions can be classified into two categories: firstly, where the maker of the statement has a duty, whether legal, social or moral, to make the statement and the recipient has a corresponding interest to receive it; or secondly, where the maker is acting in pursuance of an interest of his and the recipient has such a corresponding interest or duty in relation to the statement, or where he is acting in a matter in which he has a common interest with the recipient: Adam v Ward[14]; Gatley[15]; and Duncan & Neill[16]. The duty or interest may be common to both the maker and the recipient of the statement, but this is not essential: Carter-Ruck[17]; and Gatley[18].

16. Sixth, in determining whether the defamatory matter was published on an occasion of privilege, the court shall take into account every circumstance associated with the origin and publication of the defamatory matter, in order to ascertain whether the necessary conditions are satisfied by which alone protection can be obtained: London Association for Protection of Trade v Greenlands[19] and Watts v Times Newspapers Ltd[20]; and Gatley[21]. It must make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication: Bashford v Information Australia (Newsletters) Pty Ltd[22].

17. Seventh, as a matter of general principle, the question of privilege is to be judged by reference to the circumstances known at the time the statement was made and the defendant cannot rely on information which subsequently comes to his attention to establish privilege: Gatley[23].

18. These principles are well settled and may be stated in relatively simple terms. The complexity lies in their application.

THE 1ST OFFENDING WORDS

The 1st Offending Words/1 December Email

19. The 1st Offending Words contained in the 1 December Email was sent by the 2nd Defendant to Ken Pemberton and his wife Fanny Wong on the mistaken belief that Ken Pemberton was the president of the parent-teacher association of CIS (“CISPTA”). It was then further sent to the headmaster (Dr Theodore Faunce), head of secondary (Mr Justin Alexander) and head of Year 13 (Mr Brian Mulcahy). It reads as follows:

“ Subject: Head Boy Cheating

Hi Ken and Fanny

I am the mom of a year 13, and I have heard from the grapevines that Jonathan Lu and his twin sister were caught cheating at the Econ exam but apparently he managed to get away without any consequence … And that is because their daddy sits on the Board of Governors and the mom is somebody … And that that was not the first and only time that they cheated, and it has never occurred to them that cheating is a serious misbehaviour that may cost them their future (the saddest thing is that these kids might believe that having ‘influential and powerful’ parents means that they are above the law, like their ‘counterparts’ in the Mainland)…

This story (and variations of it) is travelling fast and wide within the CIS community. It is highly undesirable (to use the slightest words) and it sends a very unhealthy message to our young kids. I have heard that some parents are contemplating to bring it to the Press if the school authority is not handling it properly. I am sure the school authority...

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