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How Did Chan Mo-Po and His Wife Get Away With Defamation Suit? The Court of Appeal Explains the Law of Qualified Privilege

2017-01-01

In Jonathan Lu and Others v Paul Chan Mo-Po and Another [2016] HKCA 622, the Court of Appeal examined comprehensively the principles on qualified privilege as a defence to the claim of defamation, and provided guidance on what constitute malice to defeat the defence.

At common law, the defence of qualified privilege is available if the person communicating the defamatory statement has a legal, moral or social duty or interest in making it, and the recipient has a corresponding interest in receiving the same. However, the defence would fail if the maker of the statement is actuated by malice in making the statement.


The Facts

The Defendants were found liable in 2014 for defaming the Plaintiffs – twin classmates (the 1st and 2nd Plaintiffs) of the Defendants’ daughter, and their father (the 3rd Plaintiff). In December 2011, the Defendants sent 6 emails to the school management and several other parents, which contained allegations that both the 1st and 2nd Plaintiffs had cheated in an examination at the Chinese International School (“CIS”), but they went unpunished because the 3rd Plaintiff was a member of the board of governors of CIS. The 2nd Defendant claimed to have sent the emails, which were jointly signed by the 1st Defendant, after hearing about the cheating rumours from their daughter.

The Plaintiffs launched the lawsuit in March 2012 upon failure to obtain an apology from the Defendants. The jury found that the offending words employed in all 6 emails were defamatory but only 4 of them were actuated by malice. In a subsequent decision given by High Court Judge Mr Justice To in October 2015, it was accepted that the other 2 non-malicious emails were protected by the defence of qualified privilege. A total sum of HK$230,000 was awarded to the Plaintiffs, but since the Plaintiffs were not wholly successful in their action, the Defendants were only ordered to pay 60% of such costs. Both parties were dissatisfied and appealed, and two key issues were presented before the Court of Appeal: what constitutes common interest (so that the defence could be invoked) and what amounts to malice on the part of the maker of the statement (so as to defeat the defence).


Common Interest

The Plaintiffs argued that the Trial Judge had erred in deciding that there was common interest and reciprocity between the Defendants and the recipients in publishing and receiving the 2 emails so as to enable the Defendants to invoke the defence of qualified privilege.  The Court of Appeal sought to clarify the conditions under which a person making a defamatory statement can invoke the defence of qualified privilege.  The Court took the view that whether an occasion is privileged should be determined objectively.  Subject to the actual circumstances surrounding the occasion, it is still possible to establish qualified privilege as a defence in the absence of an attempt to verify the defamatory statement.  Absence of pre-existing relationship between the publisher of the statement and recipients is not fatal – the Court would examine all the circumstances by factual inquiry.

Upon reviewing the circumstances of the case, the Court of Appeal acknowledged that, as a common feature among secondary schools in Hong Kong, the Defendants were encouraged to participate in school affairs, including matters of academic integrity. The 2 emails involved legitimate concerns that the parents had in common regarding misconduct of students. Hence, there was common interest.  It was held that the Defendants successfully established the defence of qualified privilege not only in respect of the 2 emails but also all the other offending emails.


The Trial Judge’s Misdirection on Malice

Another crucial issue of the case is the directions given by the Trial Judge on the question of knowledge of falsity and recklessness as heads of malice.  The Court took the view that mere lack of belief in the truth of what is published is not equivalent to knowledge of falsity, the latter of which is almost conclusive evidence that the publisher acted with improper motive.   The Court also highlighted that recklessness as a ground, short of wilful blindness, is insufficient to destroy the defence of qualified privilege.  It had to operate with other factors such as unreasoning prejudice or anger in establishing malice. 

Upon reviewing the principles on malice, the Court of Appeal held that the Trial Judge’s directions were flawed and inadequate.  The next question is whether there should be a re-trial of the case.  The Court found that there was no evidence of the Defendants not believing in the truth of the emails throughout the incident.  They had not acted with wilful blindness and the Court did not find evidence of any overwhelming unreasoning prejudice on the part of the Defendants in view of their genuine concerns over the interest of the students in general.  Accordingly, there was no evidence on which a properly directed jury can make a finding of malice and judgment was entered for the Defendants instead of ordering a re-trial. 


Conclusion

The decision illustrates the difficulty in maintaining a defamation suit unless there is clear evidence of malice on the part of the maker of the statement. The existence of common interest between the parties of communication would be determined factually from the circumstances surrounding the occasion. Where malice is invoked to defeat the defence of qualified privilege, such findings would not be taken lightly as honesty is presumed on the part of the defendant and a mere lack of knowledge of the truth, although people may regard that as obstinate, is not sufficient to destroy the defence. 




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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2017


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