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

Judgment Cited authorities 10 Cited in Precedent Map Related
Vincent
Judgment Date13 February 2014
Subject MatterCivil Action
Judgement NumberHCA370/2012
CourtHigh Court (Hong Kong)
HCA370/2012 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 (Open to Public)
Date of Hearing: 28 November 2013
Date of Decision: 13 February 2014

_______________

D E C I S I O N

_______________

INTRODUCTION

1. There are three summonses before the court: (1) the Defendants’ two summonses filed on 8 and 12 April 2013 respectively seeking to strike out certain paragraphs of the Plaintiffs’ witness statements relating to an anonymous email addressed to the Harvard University (“Harvard Email”); and (2) the Plaintiffs’ summons filed on 21 November 2013 seeking to amend their Amended Reply. Mr Dawes, counsel for the Plaintiffs, argued that I should hear the Defendants’ strike out applications before Plaintiffs’ amendment application as the Defendants’ summonses are first in time. While acceding to that request, it makes better sense to consider the Plaintiffs’ application first because whether to strike out the various parts of the Plaintiffs’ witness statements depends on whether, if at all and the extent to which, the Plaintiffs’ proposed amendment is allowed. I shall consider the applications in this order.

The background

2. This is a defamation action which has been ordered to be tried by a judge with a jury and scheduled to commence on 4 September 2014 with 15 days reserved.

3. The 3rd Plaintiff (“Carl”) is the father of the 1st and 2nd Plaintiffs, who are twin brother and sister (“Jonathan” and “Caitlin”, respectively). At the material time, Jonathan and Caitlin were studying Year 13 at Chinese International School (“CIS”), an international school in Hong Kong, of which their father, a well known businessman, was a member of the board of governors (“Board of Governors”). Jonathan was an exemplary student and the head boy in Year 13 who consistently achieved the highest academic standards throughout Year 7 to 13. He spearheaded the school’s first academic honour code and was very active in student activities. Caitlin was also an outstanding student. She had received, for example, the Head of Year Commendation for Years 10 and 11, the Head’s Commendation, Biology Subject Prize and Math Studies Subject prize for Year 12.

4. 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 Jonathan and Caitlin in CIS.

5. In November 2011, rumours were circulating among students of CIS and their parents that Jonathan 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.

6. From 1 to 6 December 2011, the Defendants sent emails to Ken Pemberton, whom they mistakenly believed was the president of CIS’s parent-teacher association, his wife and seven other parents about the incident (the “1st Offending Email”). The Plaintiffs considered the content of that email defamatory of the 1st to 3rd Plaintiffs (the “1st Offending Words”).

7. From 4 to 6 December 2011, the Defendants sent emails to some parents about another similar incident involving Jonathan and Caitlin a year ago (the “4th Offending Document”), the content of which the Plaintiffs considered as defamatory of Jonathan and Caitlin (the “4th Offending Words”).

8. In an email sent to two parents on 4 December 2011 (the “5th Offending Document”), the Defendants published words which the Plaintiffs considered as defamatory of Jonathan (the “5th Offending Words”).

9. In an email sent to another parent on 6 December 2011 (the “6th Offending Document”), the Defendants published words which the Plaintiffs considered as defamatory of the 1st to 3rd Plaintiffs (the “6th Offending Words”).

10. At a meeting on 8 December 2011 among the school management represented by its headmaster, Mr Ted Faunce, together with some staff members and parents of some of the students, including the 1st and 2nd Defendants, the 2nd Defendant distributed a “Summary of main points for the Meeting with Ted Faunce and his staff” (the “Offending Note”). The Plaintiffs considered the content of the Offending Note defamatory of the 1st to 3rd Plaintiffs (the “2nd Offending Words”).

11. On 14 December 2011, an anonymous email purporting to be signed by “CIS Parents” was received by the admission office of Harvard University. It contained statements that Jonathan “has recently been caught cheating in his Economics exam”, that it was a “repeated offence” and that he was not “expelled or severely reprimanded” because his father is “a member of CIS Board of Governors.”

12. On 15 December 2011, the headmaster wrote to three of the parents stating that the school management decided that there were no grounds for concluding that Jonathan had cheated. A copy of that letter was forwarded to the 2nd Defendant.

13. At the early hours of the following day, the Defendants sent an email attaching the Offending Note to the headmaster and copied to some of the parents (the “2nd Offending Email”), which the Plaintiffs considered as defamatory of the 1st to 3rd Plaintiffs (the “3rd Offending Words”).

14. On or about the same day, Jonathan was informed by the admission office of Harvard University that his application was deferred. His application was subsequently rejected in April 2012.

15. The Plaintiff issued a writ of summons against the Defendants on 7 March 2012 and filed an Amended Statement of Claim on 12 October 2012, seeking compensatory, aggravated and exemplary damages. The Defendants filed their Amended Defence on 2 November 2012 in which they deny attacking the reputation or integrity of the Plaintiffs by publishing the Offending emails and deny that the publications were designed to inflict damage on the Plaintiffs. They accept the Offending Words are untrue. In essence, their defence is qualified privilege. The Plaintiffs then filed their Amended Reply on 22 November 2012 alleging, inter alia, that the Defendants were reckless and malicious in publishing the Offending Words.

16. On 8 and 12 April 2013, the Defendants took out two summonses seeking an order that various parts of the Plaintiffs’ witness statements relating to the Harvard Email be expunged or struck out on the ground that they are irrelevant to the issues raised on the pleadings. At the hearing on 29 May 2013, Poon J indicated that it was not possible to deal with the Defendants’ applications as the Plaintiffs had failed to plead the relevant issue and he asked the Plaintiffs to formulate proper amendments before the issue can be decided. Hence, the Plaintiffs applied by summons dated 13 June 2013 to re-amend their Amended Reply by introducing issues relating to the Harvard Email and malice. Then on 21 November 2013, the Plaintiffs took out the present summons seeking to withdraw their earlier summons and to introduce a new Re-Amended Reply.

THE PLAINTIFFS’ SUMMONS TO AMEND THE AMENDED REPLY

17. The Plaintiffs sought to introduce a new sub-paragraph (5A) to paragraph 4 of their Amended Reply pleading the Harvard Email and particulars of the Defendants’ malice. The purposes of the proposed amendment are twofold: (1) to introduce the Harvard Email for the purpose of supporting the Plaintiffs’ claim for additional compensatory, aggravated or exemplary damages arising out of the republication of the Offending Words in the Harvard Email; and (2) to plead particulars of malice for the purpose of defeating the Defendants’ defence of qualified privilege.

The amendment relating to the Harvard Email

18. In proposed sub-paragraph (5A)(a) to (5A)(d), the Plaintiffs plead Jonathan’s ambition to study in Harvard University; that the Harvard Email containing strikingly similar offending words was received by the admission office of Harvard University on 14 December 2011; and that Jonathan’s application to Harvard University was deferred and then rejected in early April 2012. These facts are largely incontrovertible or not disputed. Then, in proposed sub-paragraph (5A)(g), the Plaintiffs claim damages or increased damages as a result of the repetition of the defamatory materials in the Harvard Email.

The applicable legal principles

19. In a claim for damages arising out of an alleged repetition or republication of a libel, the law is that a claimant may: (i) sue a defendant for both the original publication and for the republication as two separate causes of action; or (ii) sue a defendant in respect of the original publication only, and then seek to recover as a consequence of the original publication the damage which he suffered by reason of its repetition. In the present case, the Plaintiffs are proceeding under the second option.

20. There are no specific or special rules regarding republication which are peculiar to defamation. All issues fall to be decided in accordance with the normal principles in tort, including the rules governing novus actus interveniens. If a claimant is seeking damages for repetition by others of the defamatory statement originally published by the defendant, he has to establish a causative link between the tort, ie the making of the original defamatory statement, and the damage arising from its republication. He must therefore prove that such...

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