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Jonathan Lu And Others v Paul Chan Mo Po And Another

Judgment Cited authorities 22 Cited in Precedent Map Related
Vincent
Judgment Date23 December 2016
Year2016
Judgement NumberCACV252/2015
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV251/2015 JONATHAN LU AND OTHERS v. PAUL CHAN MO PO AND ANOTHER

CACV 251/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 251 OF 2015

(ON APPEAL FROM HCA 370/2012)

_______________

BETWEEN
JONATHAN LU (盧冠中) 1st Plaintiff/1st Appellant
CAITLIN LU (盧亮臻) 2nd Plaintiff/2nd Appellant
CARL LU (盧光漢) 3rd Plaintiff/3rd Appellant

and
PAUL CHAN MO-PO (陳茂波) 1st Defendant/1st Respondent
FRIEDA HUI (許步明) 2nd Defendant/2nd Respondent

_______________

AND

CACV 252/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 252 OF 2015

(ON APPEAL FROM HCA 370/2012)

_______________

BETWEEN
JONATHAN LU (盧冠中) 1st Plaintiff/1st Respondent
CAITLIN LU (盧亮臻) 2nd Plaintiff/2nd Respondent
CARL LU (盧光漢) 3rd Plaintiff/3rd Respondent

and
PAUL CHAN MO-PO (陳茂波) 1st Defendant/1st Appellant
FRIEDA HUI (許步明) 2nd Defendant/2nd Appellant

_______________

Before : Hon Lam VP, Hon Kwan JA and Hon Poon JA in Court
Date of Hearing : 20-22 July 2016
Date of Further Written Submissions : 24 October, 7 & 21 November 2016
Date of Judgment : 23 December 2016

________________________

J U D G M E N T

________________________

The Court :

A. Introduction

A1. Overview

1. The 1st and 2nd plaintiffs are twin brother and sister. The 3rd plaintiff is their father. The 1st defendant is the Secretary for Development, formerly a member of the Legislative Council representing the Accountancy constituency. The 2nd defendant is his wife.

2. At the material times, the 1st and 2nd plaintiffs and the defendants’ daughter were Year 13 (final year) students for 2011-2012 at Chinese International School, a well known international school in Hong Kong (“CIS”). The 1st plaintiff was also the Head Boy for Year 13. The 3rd plaintiff was a member of the board of governors of CIS (“Board of Governors”).

3. In November 2011, rumours were circulating amongst the CIS community that the 1st plaintiff was suspected of having cheated in a test but got away with it because his father, the 3rd plaintiff, was a member of the Board of Governors.

4. What followed were several rounds of emails amongst some of the concerned parents, including the defendants, and between the parents and the school management in early December 2011. Meanwhile, two meetings with the school management took place. The first was on 8 December 2011 attended by seven parents including the defendants (“the 8 December Meeting”). They met with the school management to discuss their concerns. The second meeting was held on 14 December 2011 (“the 14 December Meeting”) where three Year 13 students, accompanied by their parents, related to the CIS’s senior school management what they observed to be certain suspicious behaviour of the 1st and 2nd plaintiffs at an economics test on 24 November 2011.

5. In the end, the CIS’s school management decided on 15 December 2011 not to take any action against the 1st and 2nd plaintiffs. Some concerned parents remained dissatisfied with the school’s decision and how the matter was handled by the school management.

A2. Action

6. The plaintiffs commenced the action below, suing the defendants for defamation arising from their publication of :[1]

(1) the 1 December Email between 1 and 6 December 2011, containing the 1st Offending Words;

(2) the 4 December 1st Email between 4 and 6 December 2011, containing the 4th Offending Words;

(3) the 4 December 2nd Email on 4 December 2011, containing the 5th Offending Words;

(4) the 6 December Email on 6 December 2011, containing the 6th Offending Words;

(5) the Summary on a date in December 2011 for the purposes of the 8 December Meeting attached to the 16 December Email dated 16 December 2011, containing the 2nd Offending Words; and

(6) the 16 December Email on 16 December 2011, containing the 3rd Offending Words.

7. The plaintiffs complained that the Emails and the Summary were defamatory of them. The sting of the Offending Words is, among other things, that :

(1) in respect of the 1st and 2nd plaintiffs, they repeatedly cheated in examinations at CIS; and

(2) in respect of the 3rd plaintiffs, he dishonestly and improperly intervened to cover up the cheating and influenced the school’s investigation into the cheating by abusing his position as a member of the Board of Governors.

8. The defendants admitted that they were the publishers of the Emails and the Summary. They however denied that the Offending Words were defamatory. Alternatively, they relied on the defence of qualified privilege. In reply, the plaintiffs pleaded malice.

A3. The Jury’s findings

9. After trial,[2] the jury first found that all the Offending Words were defamatory of the plaintiffs. They next found that the 4th Offending Words contained in the 4 December 1st Email, the 6th Offending Words contained in the 6 December Email, the 2nd Offending Words contained in the Summary and the 3rd Offending Words contained in the 16 December Email were all published with malice but the 1st Offending Words contained in the 1 December Email and the 5th Offending Words contained in the 4 December 2nd Email were not. They finally awarded damages to the 1st plaintiff in the sum of HK$100,000.00; the 2nd plaintiff, HK$50,000.00 and the 3rd plaintiff, HK$80,000.00.

A4. To J’s Decision

10. The matter then went back to To J for his determination on qualified privilege and costs of the action.[3]

11. By a decision handed down on 7 October 2015, the learned Judge found that the publication of the 1st Offending Words/1 December Email and the 5th Offending Words/4 December 2nd Email was protected by qualified privilege.

12. In respect of costs, the Judge ordered :

(1) the defendants shall pay 60% of the plaintiffs’ costs, other than the costs of the submissions on qualified privilege, with certificate for two counsel;

(2) the plaintiffs shall pay the defendants’ costs in respect of the submissions on qualified privilege with certificate for two counsel;

(3) all costs are to be taxed on party and party basis if not agreed (“Costs Order”).

A5. Appeals

13. Both parties appealed.[4]

14. In CACV 251/2015, the plaintiffs sought to set aside the Judge’s decision on qualified privilege and the Costs Order. In CACV 252/2015, the defendants sought to challenge the Judge’s directions to the Jury and their findings on malice.

B. Circumstances surrounding the publications

15. Since both qualified privilege and malice are fact-sensitive questions, we will in this section detail the relevant circumstances surrounding the publication of each of the Offending Words in order to give the proper context to our discussion on them later.

B1. Rumours preceding the publications

16. During an economics test held on 31 October 2011, Lok Lok, a student of Year 13, observed some suspicious behaviour on the part of the 1st and 2nd plaintiffs.[5] During another economics test held on 24 November 2011, Lok Lok and 3 other fellow students, Laura, Danielle and Joyce, observed certain suspicious behaviour of the 1st and 2nd plaintiffs as described by Lok Lok, Laura and Danielle in the taped transcript of the 14 December Meeting.[6] In gist, according to what they saw, the 1st and 2nd plaintiffs were suspected of cheating during the test.

17. As of 29 November 2011, rumours were circulating among CIS’s students and their parents that the 1st plaintiff was suspected of having cheated in a test but he got away with it because his father was a member of the Board of Governors.[7] The rumours were widespread. They had reached many parents including Michelle Chin, Rosa Ling, Anney Lay (Danielle’s mother) and Jenny Chua (Laura’s mother), and the 2nd defendant.[8]

18. The second defendant’s unchallenged evidence was that she learnt of the rumours from her daughter towards the end of November 2011.

B2. Emails before the 8 December Meeting

19. The rumours prompted the 2nd defendant to send an email (signed by her and the 1st defendant) to Ken Pemberton and his wife, Fanny Wong, parents of a Year 13 student, copied to the 1st defendant on 1 December 2011 at 11:36 pm (“the 1 December Email”). It read :

“ 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 misbehavior 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 has dealt with this matter (instead of sweeping it under the carpet) but they should do something openly to show that they are committed to uphold the moral and academic disciplines, and assert the core values of CIS.

I am writing this because we love CIS and we care about the image of CIS and the values that the school and the teachers instill in our kids. The last thing we wish to see is another bad report on CIS in the newspapers.

I really hope that...

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