Introduction

Absolute privilege protects persons who have acted innocently and in good faith from the vexation of defending unmeritorious actions in defamation.  No action shall lie against witnesses, parties, lawyers, jurors and judges (collectively, the “Five Absolute Privilege Categories”) in respect of their words spoken or written in the ordinary course of legal proceedings before the courts.  To prevent abuse of absolute privilege, the courts have been cautious when it comes to any invitation for incorporating a new absolute privilege category is high.

The recent Court of Appeal decision of Chang Wa Shan v Esther Chan Pui Kwan [2017] 5 HKC 372 examined whether the Five Absolute Privilege Categories should be extended to cover a novel category of anonymous informant or the middleman of an informant.

Background

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”). Chan’s claim eventually failed and his purported last will was held to be a forgery.

The Plaintiff in this defamation action was a businessman and property developer who had been an associate of Gilbert Leung in land development.  Gilbert Leung was a witness of Chinachem in the probate trial. The Defendant was a former assistant to and girlfriend of Gilbert Leung who had subsequently signed an agreement with Chan and provided information, documents and other assistance to Chan’s legal team before and during the probate trial. 

During the said probate trial, the Defendant 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 Gilbert Leung called by Chinachem to give evidence on the relationship between Chan and Wang and cast doubts upon  Gilbert Leung’s independence.  During a telephone conversation with Chan’s legal team, the Defendant falsely claimed that the Document was provided by the Plaintiff (the “Alleged False Statement”).  Consequently, Chan’s counsel submitted the Plaintiff’s name when they disclosed the provenance of the Document in the probate trial, which was widely reported by the media the following day.

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.  At the Court of First Instance, the defence of absolute privilege succeeded.  The Plaintiff’ then appealed to the Court of Appeal.

Judgment

Court of First Instance

The Court of First Instance emphasized that frank and full disclosure is crucial for the proper administration of justice as well as to facilitate an advocate’s proper discharge of his duty and function, especially in cross-examination.  However, the trial judge did not express a view on the more general question as to whether absolute privilege shall be extended to all persons who professed to be able to provide information for use in cross-examination in civil proceedings.

Court of Appeal

The Court of Appeal allowed the appeal in part and awarded the Plaintiff general damages for defamation. It refused to extend the absolute privilege category to cover a novel category of anonymous informant or the middleman of an informant propounded by this case.

In deciding whether to extend the immunity outside the recognised Five Absolute Privilege Categories, the Court of Appeal considered the balance between the two competing public interests in: (1) the Plaintiff being able to bring a defamation claim to vindicate his reputation; and (2) the advocate being able to freely obtain relevant information from an informant in order to facilitate an effective cross-examination at trial.  

Despite the acknowledgement of a trial judge’s power and safeguards to prevent abuse of absolute privilege, the Court of Appeal is reluctant to extend such immunity in the absence of cogent justification as any abrogation of the fundamental rights in granting an absolute privilege would be disproportionate to what was no more than necessary to accomplish the proper administration of justice.

Implication

Whilst it is important to ensure proper administration of justice that requires 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, there is a risk that such freedom may be jeopardised if the informant was inhibited by fear of subsequent litigation. 

Both the Plaintiff and Defendant sought leave to appeal to the Court of Final Appeal (CFA). The Plaintiff was granted leave to appeal to the extent that he was awarded general damages of HK$30,000 for slander and malicious falsehood.  Both the Plaintiff and Defendant were granted leave to appeal the following questions of great general or public importance:

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; and
2. 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.

This is a complex and novel area of law and hopefully the CFA will clarify the position on whether the Five Absolute Privilege Categories should be extended.