Introduction

In “Should an anonymous informant or the middleman of an informant in civil proceedings be protected by the defence of absolute privilege in a defamation case?”, we discussed the Court of First Instance (“CFI”) and the Court of Appeal’s decision on Chang Wa Shan v Esther Chan Pui Kwan [2018] HKCFA 29, which examined whether the application of absolute privilege should be extended to cover a novel category of anonymous informant or the middleman of an informant. The Court of Final Appeal (“CFA”) handed down judgment in late 2018 which clarified such position. 

Background

To recap, this case is a defamation and malicious falsehood claim arising out of probate proceedings concerning the estate of the deceased late chairwoman of Chinachem Group, Nina Wang (“Wang”), in which Tony Chan (“Chan”) contended that he was the sole beneficiary of Wang’s estate in a later will, in place of the beneficiary under an earlier will, being Chinachem Charitable foundation Limited (“Chinachem”). In the said probate action Chan was represented by Haldanes, the responsible partner being Mr Johnathan Midgley (“Mr Midgley”); and two English counsels, Mr Ian Mill QC (“Mr Mill”) and Mr John McDonnell QC.

During the probate action the Defendant, a former assistant to and girlfriend of Gilbert Leung (“Mr Leung”), acted as a middleman between Chan’s legal team and an informant. She had, on behalf of an informant, provided Chan’s legal team with a document (the “Document”) purporting to be an investment proposal for the development of a land, which might impeach the credibility of Mr Leung called by Chinachem to give evidence on the relationship between Chan and Wang and cast doubts upon Mr Leung’s independence. 

In a telephone conversation between Mr Midgley, Mr Mill and the Defendant on 21 May 2009, the Defendant mentioned the name “Edmund Tsang” in response to what she thought was Mr Midgley’s questions, namely, “to whom had Mr Leung submitted the investment proposal in the Document” instead of “where [the Document] had come from” (the “Alleged False Statement”). Subsequently based on the Alleged False Statement, the following exchanges took place in court:

The Plaintiff was taken by surprise by the mention of his name in the probate trial, the subsequent media coverage of his alleged involvement and the backlash he experienced. After the Plaintiff successfully obtained identity of the informant, that is, the Defendant, the Plaintiff then commenced this defamation claim against the Defendant. The Defendant argued that the utterance of the name of the Plaintiff, was covered by absolute privilege. 

The Appeal

At the CFI, the defence of absolute privilege succeeded. The Plaintiff then appealed to the Court of Appeal (“CA”), which allowed the appeal in part and awarded the Plaintiff general damages for defamation. Both the Plaintiff and Defendant then sought leave to appeal to the CFA. Three questions were certified by the CA as being of great or general importance, the first two on the application of the Defendant and the third on the application of the Plaintiff:

1.        Whether the common law defence of absolute privilege in the law of defamation and malicious falsehood in Hong Kong covers or extends to, or should cover or extend to, occasions where the communications are between a solicitor or a barrister for court proceedings on the one hand, and a person who may not be a witness or potential witness but provides relevant information for possible use in those proceedings on the other hand.

2.        Whether, in a defamation or malicious falsehood matter, the plaintiff and the courts are entitled to use or rely on particulars of extrinsic facts never specifically pleaded in support of a specific innuendo meaning to support that innuendo meaning, on the sole ground that evidence on such extrinsic facts had in any case been received by the trial judge for a different reason or purpose.

3.        Whether damages resulting from an absolutely privileged republication can be recoverable as damages for defamation and/or malicious falsehood flowing from an original non-privileged publication by a defendant where such republication should have been within the reasonable contemplation of the defendant.

The Decision

The first question

The CFA concurred with the CA that the Alleged False Statement was not covered by absolute privilege. Lincoln v Daniels [1962] 1 QB 237 held that “the privilege attaching to evidence which a witness gave coram judice [in the presence of the judge] extended to the precognition or proof of that evidence taken by a solicitor. It is immaterial whether the proof is or is not taken in the court of proceedings”, and “the connection between the evidence and the precognition, the document and the draft, the actuality that is undeniable privileged and the foreshadowing of it – must be reasonably close”.

As such, noting that the Defendant was merely a middleman for an informer in relation to the Document and that even if the Defendant had been a potential witness to the probate action, it is likely she would have declined to do so in order to avoid being asked to identify the informant. Therefore, there was not sufficient connection between the subject-matter of the evidence and the precognition to extend absolute privilege to cover the Alleged False Statement, as it would not be a small adjustment of boundaries would cause the same to become wide and unclear.

The second question

The CFA held that to establish slander or innuendo, one has to plead facts which were known at the time of publication to the audience to whom the publication was addressed. However, the amended pleading referred to a general public perception, instead of identifying facts known to the persons to whom the alleged slander was uttered.

The CFA affirmed the decision of the CFI that the pleaded innuendo meanings failed because none of the assertions stood up in relation to the state of knowledge of Mr Midgley or Mr Mill as at 21 May 2009. They did not have the knowledge of any friendship between the Plaintiff and Mr Leung, or of any loyalty owed to Mr Leung by the Plaintiff. There was no reason to suppose that Mr Midgley or Mr Mill knew or believed that the case was unmeritorious. Therefore, the CFA held that both the slander claim and the defamation claim failed.

The third question

As the Plaintiff failed to plead the innuendo meanings, the Plaintiff may only put forward a claim for malicious falsehood based on s.24 of the Defamation Ordinance (Cap. 21 of the laws of Hong Kong). Taking into account that the Alleged False Statement was made to Mr Midgley and Mr Mill who have never heard of the Plaintiff before and where there was no suggestion that either of them had any sort of business dealings with him, such disclosure could not therefore give rise to any special damage. The Defendant would be liable for special damage only if (i) she is concurrently responsible for Mr Mill’s subsequent disclosure of the Plaintiff’s name in open court; and (ii) that disclosure fell within section 24(1)(b) of the Defamation Ordinance or special damage has been pleaded and proved; and (iii) she does not as to the measure of damages for that subsequent disclosure, enjoy the same absolute privilege as Mr Mill.

The CFA found that the naming of the Plaintiff by Mr Mill in open court, and any fair reporting of his words by the press, would have conveyed nothing “calculated to cause pecuniary damage to the plaintiff” in his business. However, as the CFA previously found that there was no defamation or malicious falsehood, the Plaintiff’s claim for damages would fail and the CFA therefore held that it would be unnecessary to deal with the third issue.

Conclusion

The CFA has clarified the position that absolute privilege should not be extended to communications between a solicitor or a barrister for court proceedings, and a person who may not be a witness or potential witness but provides relevant information for possible use in those proceedings. Whilst it is important to ensure proper administration of justice through freedom of speech and communication between an advocate and the provider of such a document on matters directly pertinent to the contents, purport and provenance of that document, the CFA notes that any extension should be exercised with caution and necessity must be shown so as to avoid blurring the boundaries of the application of absolute privilege.