曾漢珠 v. 王國量

DCCJ 3917/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3917 OF 2003

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JUDGMENT

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1. The Plaintiff’s pleaded case is that she was an experienced accountant and was first engaged in theaccounting profession in 1977.

2. In June 2003, the Plaintiff was engaged as a teacher at Caritas Francis Hsu College and the Defendant was a student in the same college who attended her accountancy class.   In this action, the Plaintiff claims against the Defendant an injunction and damages in respect of words spoken by the Defendant to complain against her at a student forum.   The words alleged to have been spoken against the Plaintiff by the Defendant as pleaded by the Plaintiff were “I like to complain on Ms. Florence Tsang Hon Chu’s teaching.  Actually, she does not teach us the course materials and she spent 40 minutes out of a 50 minutes class period to speak rubbish and talk about God and Jesus etc.”

3. The Plaintiff pleaded in the Statement of Claim that as a result, the Plaintiff was put to mental distress, sudden sadness, frustration and loss of confidence before the school and in her teaching career.  The Plaintiff was also afraid that people in the school would laugh at her.  The Plaintiff amended her Statement of Claim and added “the Defendant further accused the Plaintiff in the Student Forum that she announced in the class that some students had evil spirit inside their body.”

4. The Plaintiff claims the following:-

“(I)   An injunction to restrain the Defendant from further slandering on her professional office; and

(II)  Damages for lowering her reputation, including mental distress and intentional damages of the amount of HK$500,000.00 or whatever the Court thinks fit, based on the following particulars:

Compensation for loss of confidence	HK$200,000.00
Suffering from Mental Distress (and sadness, frustration and loss of sleep)	HK$50,000.00
Compensation for loss of present job	HK$250,000.00 ”

5. In her evidence, the Plaintiff stated that the words allegedly spoken against her were untrue.  

6. In this action neither the Plaintiff nor the Defendant were legally represented.

7. The Defendant in his Defence stated he attended a Student Forum organized by the school.   The purpose was for students to express their views related to the lessons taught and it was designed for open discussion between students and the school authority, and staff.   At the Student Forum, the students were invited to make their comments.   It was in the Student Forum that he gave his comments in relation to the Plaintiff as follows:

“指出原告人在執教成本會計堂上時常講題外話並且同時交出三盒錄音帶作為証據，當面遞交予校長作內部參考和調查。…… 原告人曾漢珠在成本會計堂執教時，時常聲稱自己是基督教教徒和介紹學生參加教會之外，更聲稱某些同學上堂表現惡劣和成績欠佳是因為「邪靈入體」，而表現優良的同學是皆因其教導有方和有跟隨參加其所屬教會的活動，本人認為原告人在成本會計堂上浪費大量時間作出以上行為導致學生們不能汲取學科知識。”

8. The words spoken by the Defendant at the Student’s Forum were words spoken in a transient form.   It was not in a permanent form.    In relation to the tapes handed to the headmaster, they were allegedly recording of the Plaintiff’s lessons to support the Defendant’s assertions.   However the contents of the tapes were not known and they were allegedly recordings of the Plaintiff’s own words.  There is no reference to the tapes in the Plaintiff’s Statement of Claim, being the Plaintiff’s pleaded case.    All in all, the Plaintiff’s case against the Defendant pleaded in the Statement of Claim refers to words spoken by the Defendant in the Student’s Forum on 16 June 2003.

9. The Plaintiff’s action is based on slander, namely the publication to a third person words or matter containing an untrue imputation against her reputation in a transient form namely spoken and not in written form.  

10. The Defendant himself admitted to having spoken the words stated in his Defence.   The Defendant raises two lines of Defence being Fair Comment and Qualified Privilege.  

Plaintiff’s Case

11. The Plaintiff’s case is that she heard the Defendant speak the words she had alleged in a Student Forum which was attended by students and staff and school authority.   After speaking those words alleging that she spent a lot of time speaking on irrelevancies in class and talking about Jesus and the fact that she was a Christian, as pleaded by her, she said that she saw the Defendant hand three audio tapes to the Headmaster which were allegedly recordings of her class.  She also pleaded in her Amended Statement of Claim that the Defendant accused her that she announced in class that some students had evil spirit inside their body.  It is not in dispute that the Student’s Forum was for students to express their views.    She stated that she did not hear the Defendant state that she spent about 40 minutes out of a 50 minutes class speaking on irrelevancies.  She stated that after the Student’s Forum she went back to the staff room and a colleague, Olivia Lui told her that she heard the Defendant say that out of a 50 minutes class she spent 40 minutes on irrelevancies.   She was not able to call her colleague Olivia Lui to give evidence.   She stated that she had never spoken about religion in class.   She had not stated that any of the students were demon possessed.  She said no one in class knew she was a Christian.   She brought three students to a Christian meeting in May 2003.  In June 2003 she brought one student to another meeting.  The Defendant asked to come along.   After the meeting she told one student about the difference between the Holy Spirit and an evil spirit.  She did not say anything about anyone being demonized in class.   She stated that the allegations of the Defendant were untrue.  

12. She stated that she learnt that it was another Accounts teacher Mr. Tsui who instigated the Defendant to make those comments in the Student Forum.  She stated that Mr. Tsui was a new teacher and wanted to use the remarks of the Defendant at the Student Forum to create a bad impression on her so that her contract would not be renewed and he might have a chance of securing another contract in the school.    She also alleged that Dr. Rosanna Chan (hereinafter referred to as “Dr. Chan”) the Dean of Students, had tried to persuade her not to continue her action against the Defendant.   Dr. Chan had tried to mediate between her and the Defendant and according to Dr. Chan the Defendant was willing to apologise to her but the Plaintiff required the Defendant to pay her $5,000 to compensate her for the fee she paid her Counsel to draft the Statement of Claim.   The Defendant refused to pay this sum so that there was no compromise.  She stated that Dr. Chan also told her that the Defendant was incited to make his comments at the Student Forum by others.   However under cross-examination by the Plaintiff on this, Dr. Chan, a witness of the Defendant, denied that she had told the Plaintiff that the Defendant was incited by others to make these remarks against the Plaintiff at the Student Forum.  

13. The Plaintiff stated that she resigned from the school because she did not want to remain in the school.  She felt her colleague’s view of her was affected by these expressions by the Defendant.   She was not dismissed by the school.   Her evidence is that she was, even at the time of her resignation, well thought of by the school, and resignation was a matter of personal choice, a voluntary act.

14. The Plaintiff said that she had been seeing a psychologist all along.  She produced a Psychological Progress Report prepared by Dr. Alex C. Lo related to her psychological condition.   She stated that the Defendant had disparaged her in front of about 1000 staff and students.   She suspected that his motive was to challenge the teachers and if the teachers did nothing he would be free to do whatever he wanted.  

15. The Plaintiff stated that she had taught the students on matters unrelated to course material such as matters of her reflections and experiences on life.  She stated that the students enjoy this.    

16. The Plaintiff did not call any other evidence.   She stated that she did not want to owe anyone any favours so she did not call them to give evidence.

17. The Defendant gave evidence.   He already admitted in his Defence that he had stated certain comments and words about the Plaintiff at the Student Forum in order to make known to the school authority his views to bring improvement to the school lessons.   He stated that he did not only make comments on the Plaintiff but he made comments on other teachers as well.   He stated that the Student Forum was a privileged environment and he should not be subject to litigation for the comments because of that.  He denied that he stated that out of a 50 minutes class, the Plaintiff spent 40 minutes speaking on irrelevancies.   He stated under cross-examination that the comment that the Plaintiff stated that some students were demon possessed was a comment that To Man Wai a fellow student said that the Plaintiff stated in class.   He stated however that he also heard the Plaintiff say that after examination in the examination hall of the College. 

18. The Defendant stated that apart from the comments he made about the Plaintiff at the Student Forum, he had not made any comments about the Plaintiff anywhere else.   There is no likelihood that he would do so as he had left the school soon after that event.   Hence there is no basis for the grant of an injunction to restrain him from further comments against the Plaintiff.

19. The Plaintiff in cross-examination of the Defendant, sought to establish that the signature in the witness statement of To Man Wai, a witness statement submitted by the Defendant is not an authentic signature as the English name of To Man Wai is Billion To.   Hence his signature could not be “V. To”.   The Defendant stated that To Man Wai’s English name known to him is Vicki To.   He did not know that To Man Wai’s English name was Billion To.   He had always known the English name of To Man Wai as Vicki To.  

20. There is no way of verifying what is the true English name of To Man Wai as he was not called to give evidence.   It was only the evidence of the Plaintiff as against that of the Defendant and I am not able to make a finding that To Man Wai’s English name is not Vicki To.  It is a serious allegation that the Defendant produced a witness statement where the signature of the maker is not authentic as seems to have been suggested by the Plaintiff.  Cogent evidence is required to support this allegation.  In my view there is insufficient evidence for such a strong allegation. I find that the Plaintiff has not been able to establish that the signature of To Man Wai is not authentic.

21. The Plaintiff cross-examined the Defendant and said that he should have made his views about her teaching known privately through the channel of staff evaluation.  This is an evaluation channel open to any student in the last three weeks of a 14 weeks course.  Instead, the Defendant used the Student Forum to slander her.    The Defendant stated in reply that he had also used the staff evaluation channel to make his view known.  

22. The Plaintiff again in cross-examination referred to the witness statement of To Man Wai where it is stated that the Plaintiff,

“曾指一些同學 “邪靈入體”包括王國量先生及一位洋名為 Gerald的同學”

23. The Plaintiff sought to link up the Gerald referred to in the witness statement of To Man Wai as being the student named Gerald Fung.   The Plaintiff stated that she received an e-mail from Gerald Fung which she read out.  In this e-mail the said Gerald Fung stated that the Plaintiff had not stated that he was demon-possessed.   The Defendant stated that the “Gerald” referred to, in To Man Wai’s witness statement was a “Gerald” but not “Gerald Fung”.   The Plaintiff stated that there was no other “Gerald” in the school apart from “Gerald Fung”.  The Defendant stated the “Gerald” he knew was “Gerald” and not “Gerald Fung”.   However there is no means of verification whether there is only one “Gerald” and whether the statement writer referred to “Gerald Fung” or another “Gerald”.  As To Man Wai did not give evidence, the identity of “Gerald” referred to in his witness statement could not be ascertained.

24. I asked the Defendant whether he heard the Plaintiff state the words he alleged she spoke and, if so where and when.  The words were,

“更聲稱某些同學上堂表現惡劣和成績欠佳是因為「邪靈入體」” (hereinafter referred to as “‘邪靈入體’phrase”)

25. The Defendant stated that it was so long ago that he could not remember.   There were different classrooms where they held the class given by the Plaintiff.   The Plaintiff immediately jumped in to say that all her classes attended by the Defendant were held in the same classroom.    The Defendant at another point said that the Plaintiff stated the words in the school hall after an examination in March and April.   The Plaintiff immediately stated that examinations are not held in March and April and denied the evidence of the Defendant.   In the course of this cross-examination I had the sense that the Plaintiff did not say the “‘邪靈入體’phrase” either in the examination hall after an examination as alleged by him or in a classroom.  I had the distinct sense that the Defendant was not truthful when he said that he personally heard the Plaintiff state those words in an examination hall.

26. He called Dr. Chan to give evidence.   Dr. Chan stated that she was the Dean of Students at Caritas Francis Hsu College from 8 September 2002 to 31 August 2005.   She stated that the Students Affairs Department organized a Student Forum every semester as an informal channel to obtain opinion from students for the purpose of improvement.   The Student Forum is for open discussion.  All students and staff were invited to attend.   In the Forum, high levels of school authority will attend and after comments are made the school authority may make enquiries for further communication in order to gain views for improvement.   She submitted the leaflet which was a circular inviting students to attend the Student Forum marked Exh D1.   The relevant parts of the circular state,

“Student Open Forum

學生論壇

一個所有學生都應該出席的校內公開論壇 。到時校方管理層 、教學單位及教學支援單位的教職員均會出席與你真誠對話 。你可藉此機會更了解學校及表達你的意見。……”

27. Dr. Chan stated she could not remember the precise words spoken at the Student Forum as it was so long ago.   She stated that adverse views of teachers including herself were expressed.   She stated that she did not take these comments to heart because it was for the purposes of improvement.  The Student Forum lasts one hour.  A senior staff of the Students Affairs Department chaired the meeting.   The head of the school was invited to speak and report on the development plans of the school.   Then the students would be invited to express their views.   None of the comments are recorded or written down.   There is no record of meetings.

Finding on Facts

28. The Plaintiff’s evidence was that she was well thought of by the school authority even at the time of her resignation from her teaching post at the school.   She resigned because she felt her colleagues’ opinion of her teachers may be affected by the Defendant’s words.   However there is no objective evidence of such.   Since the school authority did not dismiss her, and the Plaintiff stated that the school authority thought well of her even at the time of her resignation, it must be the case that the school authority was not affected by the comments of the Defendant at the Student Forum.

29. The Plaintiff did not hear the Defendant say that out of a 50 minutes class, the Plaintiff spent 40 minutes on irrelevancies.  The Plaintiff based this allegation on hearsay, as she stated that her colleague Olivia Lui told her that the Defendant stated those words at the Students Forum.  The Defendant denied that he said those words.   The Plaintiff did not call Olivia Lui to give evidence.  I am not able to give weight to this hearsay evidence in the face of denial by the Defendant.  Hence, I find that the Plaintiff has not been able to establish that the Defendant spoke these words at the Student Forum, “that out of a 50 minutes class the Plaintiff spent 40 minutes on irrelevancies”.      

30. As regards the Plaintiff’s pleaded case that the Defendant stated in theStudent Forum that the Plaintiff did not teach the course materials and spoke rubbish and talked about God and Jesus in class, these are based on the recollection of the Plaintiff.   The Statement of Claim was drafted 16 July 2003 when the Student Forum occurred one year or more earlier.  It is not easy to remember precise words spoken particularly as appears to have been the case, that the Plaintiff was rather shocked and upset by the words immediately when she heard them.  The Defendant himself admitted in his Defence the exact words spoken by him about the Plaintiff at the Student Forum.  The words admitted in his Defence to have been spoken by him should in my view be a more accurate record of what he spoke at the Student Forum and therefore I prefer the Defendant’s version of his comments spoken at the Student Forum to the evidence of the Plaintiff related to this.   I therefore find that the Defendant spoke the words admitted by him in his Defence at the Student Forum.   The words admitted by the Defendant to have been spoken by him and pleaded in the Defence relate to a theme somewhat like that alleged by the Plaintiff.    I accepted the Defendant’s case that the words spoken by him at the Student Forum were those pleaded by him in his Defence.  

Words the Defendant Admitted he Spoke

31. These are,

“指出原告人在執教成本會計堂上時常講題外話並且同時交出三盒錄音帶作為証據，當面遞交予校長作內部參考和調查。…… 原告人曾漢珠在成本會計堂執教時，時常聲稱自己是基督教教徒和介紹學生參加教會之外，更聲稱某些同學上堂表現惡劣和成績欠佳是因為「邪靈入體」，而表現優良的同學是皆因其教導有方和有跟隨參加其所屬教會的活動，本人認為原告人在成本會計堂上浪費大量時間作出以上行為導致學生們不能汲取學科知識。”

32. In my view, from the evidence of the parties, I find it likely that during class the Plaintiff spoke on matters other than the course subject.   The Plaintiff herself stated that she spoke on her experiences of life and the students loved it.   In my view the fact that the Defendant submitted three tapes of recording of the Plaintiff’s classes to illustrate his comments related to the Plaintiff’s teaching shows that the Defendant wanted to convey what the situation was.   Were he not honest in his intentions he would not have submitted recordings of the Plaintiff’s classes which could clearly show whether his comments were true or not.  However as regards whether the Plaintiff spent substantial time (“大量時間”) in class talking on irrelevant material, wasting time to the extent that the students could not absorb knowledge related to the lesson topic, that is not certain.

33. The Plaintiff had denied that she stated the words,

“更聲稱某些同學上堂表現惡劣和成績欠佳是因為「邪靈入體」”.

34. I find from the evidence of the parties that it is unlikely that the Plaintiff has said those words in class.  In my view it is highly likely she said these words when she was with the Defendant and other students in a more private situation.  I come to this finding because the Plaintiff stated the Defendant and others went with her to a Christian meeting in June.  She said that on her way out from the meeting, she talked to them about the difference between the Holy Spirit and evil spirits.  However stating this in private is substantially different from stating this in public.

Cause of Action

35. Paragraph 3.6 on page 79 of Gatley on Libel and Slander, states,

“In English law libel is always actionable per se, that is to say the claimant is not required to show any actual damage, . . . whereas in slander, with four exceptions, the cause of action is not complete unless there is “special” damage, i.e. some actual temporal loss.   The four exceptional cases are:

(1)  …

(2)  …

(3)  Where the words are calculated to disparage the claimant in any office, profession, calling, trade or business held or carried on by him at the time of publication.

(4)  …”

36. Of the four exceptions cited above, only (3) is likely to be applicable to this case.   The Plaintiff has to prove that the Defendant stated the words in question, which are calculated to disparage the Plaintiff in her calling as a teaching carried by her at the time of publication.  

Meaning of “calculated to disparage”

37. Paragraph 4.16 at page 127 of Gatley on Libel and Slander (hereinafter referred to as “Gatley”) state that,

“Though “calculated to” may have the subjective sense of “intended to bring about a certain result” it is often used in the law in the broader, objective sense of “likely to produce a result” . . .and this seems the most likely sense under s.2” of the Defamation Act 1952.

38. In the same way, in common law it seems to me that the broader meaning of “likely to produce a result” must also apply.

39. The Plaintiff’s claim for compensation for loss of the present job is not sustainable, as she did not lose her job as a consequence of the words spoken by the Defendant.   She chose to resign.

40. It would seem that the other items of claims sought by the Plaintiff in her Statement of Claim such as damages arising from the lowering of her reputation, compensation for loss of confidence, mental distress, are not items of special damage.   Hence for her claim to be actionable per se, the Plaintiff’s action has to come under an the exception to the general principle that an action for slander is not actionable per se without proof of special damage unless the Plaintiff can prove that the words alleged to be defamatory were likely to have the result of disparaging the Plaintiff in her calling as a teacher.

41. The natural and ordinary meaning of the words would be taken.    The burden of proof is on the Plaintiff to satisfy the Court that the words in their natural and ordinary meaning were likely to bring about the result that the Plaintiff’s reputation as a teacher would be disparaged.  

42. It is for the Court to say whether the words alleged to be defamatory is fairly capable of a construction, which would make it slanderous or in other words, they are likely to produce the result that the Plaintiff would be disparaged in her calling as a teacher, carried on by her at the time of publication of the words by the Defendant in the Students Forum.  

43. The words found by me to have been spoken by the Defendant refer to the fact that the Plaintiff often spoke on matters other than the lesson topic during class.   In class she often state that she is a Christian and recommend students to attend Church activities.   As far as these words are concerned, I do not find them to be slanderous.   However, in relation to the allegation that the Plaintiff stated the “某些同學上堂表現惡劣和成績欠佳是因為「邪靈入體」 ” in class, in relation to students that did not perform or behave well, I am of the view that this is slanderous.   The remark that students who perform poorly or behave badly are demon possessed is disparaging of such students.   To state that a teacher makes such remarks in class is to impute that the teacher does not respect students and disparages students of this category.   The explanation espoused in these words for poor behaviour and poor performance is not a commonly held view and would appear strange, simplistic and ingenuous to those who do not hold this view.   The statement that the Plaintiff stated this in class to all students imputes that the Plaintiff has poor judgment and little common sense to understand how this statement would come across if spoken in a class of students and does not possess enough sense to know that this is not the setting for a statement of that nature.   Further it imputes that the Plaintiff lacks understanding and knowledge of the diversity of opinion as regards the causes for problems of behaviour and poor performance in students.  The statement that the Plaintiff said this in class in my view disparages the reputation of the Plaintiff in her calling as a teacher. 

44. The allegation that the Plaintiff “浪費大量時間作出以上行為導致學生們不能汲取學科知識”, is slanderous as it imputes the failure of the teacher to perform her responsibilities through talking on irrelevant material, wasting time and failing to teach the lesson topic.  The end result is that the students failed to absorb the knowledge of the lesson topic.   In my view this statement disparages the reputation of the Plaintiff in her calling as a teacher.

The Defence of the Defendant

45. The Defendant raised two lines of defence.  The first is “Fair Comment” and the second is “Qualified Privilege”.   

The Defence of Fair Comment

46. Gatley in paragraph 12.2 states that,

“To succeed in the defence, the Defendant must show that the words are comment and not a statement of fact.”

47. From the contents of the words spoken by the Defendant about the Plaintiff at the Student Forum apart from the words, “本人認為原告人在成本會計堂上浪費大量時間作出以上行為導致學生們不能汲取學科知識”, which were comment the rest and the words were statement of facts.   The Defence of Fair Comment is not applicable to statements of facts.   In my view, this defence is not available to the Defendant.

Defence of Qualified Privilege

48. Statements published on an occasion of qualified privilege are “protected for the common convenience and welfare of society” as stated by Parke B. in Toogood v Spyring (1834) 1 C.M. & R. 181 at 193.   

49. Para 14.4 in Gatley states the reason for this defence citing various authorities as follows:-

“It was in the public interest that the rules of our law relating to privileged occasions and privileged communications were introduced, because it is in the public interest that persons should be allowed to speak freely on occasions when it is their duty to speak, and to tell all they know or believe, or on occasions when it is necessary to speak in the protection of some (self or) common interest.”

“In such cases no matter how harsh, hasty, untrue, or libellous the publication would be but for the circumstances, the law declares it privileged because the amount of public inconvenience from the restriction of freedom of speech or writing would far out-balance that arising from the infliction of a private injury.”

“It may be unfortunate that a person against whom a charge that is not true is made should have no redress, but it would be contrary to public policy and the general interest of business and society that persons should be hampered in the discharge of their duty or the exercise of their rights by constant fear of actions for slander.”

50. However the learned author states in the same paragraph that,

“If the defendant is malicious, that is, if he uses the occasion for some other purpose than that for which the law gives protection, he will not be able to rely on the privilege.” 

51. Under the common law, there are two broadly classified categories of qualified privilege.   First, where the maker of the statement has a duty (whether legal, social or moral) to make the statement and the recipient has a corresponding interest to receive it.  Second, where the maker of the statement is acting in pursuance of an interest of his and the recipient has such a corresponding interest or duty in relating to the statement, or where he is acting in a matter in which he has a common interest with the recipient (see Gatley para 14.6).    

52. The learned author quotes words of Lindley L.J. in Stuart v Bell [1892] 2 Q.B. 341, CA referring to qualified privilege, states, citing Lord Atkinson in Adam v Ward [1917] A.C. 309 at 334,

“A privileged occasion is . . . an occasion where the person who makes a communication has an interest, or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it.   This reciprocity is essential.”   

53. In relation to what is a moral duty for the purposes of qualified privilege, the learned author Gatley in paragraph 14.10, cites Lindley J in Stuart v Bell:

“In considering the question whether the occasion was an occasion of privilege, the court will regard the alleged libel and will examine by whom it was published, to whom it was published, when, why, and in what circumstances it was published and will see whether these things establish a relation between the parties which gives rise to a social or moral right or duty, and the consideration of these things may involve the consideration of questions of public policy.”

54. The learned author of Gatley states that,

“It is for the judge to determine whether an occasion is privileged and therefore to decide whether the defendant was under a duty to make the communication.  The judge will have no difficulty in determining whether there was a legal duty to make the communication, but there is no sure and unfailing criterion of what does or does not constitute a moral or social duty; indeed, as was pointed out by Erle C.J. in Whiteley v Adams, “Judges . . . have all felt great difficulty in defining what kind of social or moral duty will afford a justification.”

55. The learned author Gatley, referred to Hunt v Great Northern Ry. [1891 2 QB 189 at 191, CA where Lord Esher M.R. states,

“A privileged occasion arises if the communication is of such a nature that it could be fairly said that those who made it had an interest in making such a communication, and those to whom it was made had a corresponding interest in having it made to them.  When those two things co-exist theoccasion is a privileged one.”

56. Paragraph 14.13 of Gatley states,

“Where the statement is made in purported discharge of a duty, it is essential that the person receiving it should have a legitimate interest in doing so.”

57. The definition of the word “interest” is very wide.   In para 14.13, Gatley states,

“The word ‘interest’ is not used in any technical sense.  It is used in the broadest popular sense, as when we say that a man is ‘interested’ in knowing a fact – not interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news.” (per Higgins J. in How v Lees (1910) 11 C.L.R. 361 at 398)

“So long as the interest is of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it, it will come within the rule.”

58. Having discerned the aforesaid principles we now apply the facts of the Student Forum to it.   The independent evidence of Dr. Rosanna Chan related to the purpose of the Student Forum shows that it is a means to create an informal channel to obtain opinion from students for the purpose of improvement.   All students and staff are invited to attend.   The Student Forum is for open discussion.  After comments are made the school authority may make enquiries for further communication in order to gain views for improvement. 

59. The Student Forum Circular marked Exh D1 further clarifies the purpose of this forum.   It states that it is an internal forum of the school for open discussion where students will find worthwhile to attend.  At the forum the management of the school will attend.   Teachers and teacher’s assistants would attend to communicate frankly with the students.   Students could use this opportunity to increase their knowledge about the school and express their views.  

60. It is clear that the Student Forum is a forum where there is a duty between student and teaching staff for open and frank communication and there is an interest on the part of the school authorities to receive the communication for improvement of the School.  

61. From the aforesaid, there is reciprocity of duty for communication between the students and staff and an interest on the part of the school authority to receive the communication for communication.   Authorities like London Association v Greenlands [1916] 2 A.C. 15 at 27, Kith v Lauder (1905) 8 F, 356 show that mutual protection associations which where groups of people combine together in order to provide the necessary information for carrying on business are occasions of qualified privilege.   In a way, the Student Forum consists of a group of people getting together for the purpose of improving the school’s effectiveness would have a similar purpose.  

62. I therefore find that the Student Forum is a forum of qualified privilege.   This finding means that even were the words found to have been spoken by the Defendant to be slanderous, since they are spoken in a Student Forum the qualified privilege protects the student who make comments in the Student Forum.  If such comments are slanderous there is protection unless the Plaintiff could prove malice on the part of the Defendant.   Malice is not easy to prove. 

Malice

63. The Plaintiff pleaded in her Reply that the Defendant was deliberately malicious in the “attack” made against her at the Student Forum.   Where malice is proved to be the cause of the words spoken, the defence of qualified privilege is lost.   However it is the Plaintiff’s burden to prove that malice was the reason for the slanderous remarks and the burden is not a light one.

64. Gatley in paragraph 16.2 at page 509 referred to the traditional approach related to ‘malice” put clearly by Bankes J. in South v Streatfleld [1913] 3 K.B. 764 as follows:

“The principle upon which the law of qualified privilege rests is this: that where words are published which are both false and defamatory the law presumes malice on the part of the person who publishes them.  The publication may, however, take place under circumstances which create a qualified privilege.  If so, the presumption of malice is rebutted by the privilege, and …… the plaintiff has to prove express malice on the part of the person responsible for the publication.  The effect of proving express malice is sometimes spoken of as defeating the privilege ……  Although the occasion remains a privileged occasion, the privilege afforded by the occasion ceases to be an effective weapon of defence ……  Qualified privilege is a defence only to the extent that it throws on the plaintiff the burden of proving express malice.  Directly the plaintiff succeeds in doing this the defence vanishes, and it becomes immaterial that the publication was on a privileged occasion.”

65. The summary of the speech of Lord Diplock in Horrocks v Lowe, [1975] A.C. 135, HL, which restated the law in the context of qualified privilege is cited in paragraph 16.3 of Gatley.   I set it out as follows:

“(1)	Improper motives
	(a)	There is some special reason of public policy for giving immunity in all cases of qualified privilege.  If the maker of a statement uses the occasion for some other reason he loses the protection of the privilege.
	(b)	The defendant is entitled to be protected unless some dominant improper motive on his part is proved.
	(c)	(i)    The usual motive relied on is that of injuring the claimant, but there may be others.
		(ii)   Knowledge that a statement will injure the claimant does not destroy the privilege if the defendant was using the occasion for its proper purpose.
(2)	Absence of honest belief
	(a)	If it can be proved that the defendant did not believe that what he published was true, that is generally conclusive evidence of express malice, “for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another”.  The burden of proof, at least where conduct extraneous to the privileged occasion is not relied on, is not a light one.
	(b)	If the defendant publishes untrue matter recklessly, without considering or caring whether it be true or not, he is treated as if he knew it to be false, but carelessness, impulsiveness or irrationality in arriving at a belief is not to be equated with indifference to truth.
	(c)	There are exceptional cases where a person may be under a duty to pass on defamatory reports made by another even if he believes them to be untrue: he is not then malicious.
(3)	Positive Belief
	(a)	Positive belief in the truth of what is published will usually protect the defendant unless he can be proved to have misused the occasion.  Judges and juries should be slow to draw the inference that he has misused the occasion, and the defendant’s desire to use the occasion for its proper purpose must be shown to have played no significant part in his motives if malice is to be found.
	(b)	Where the defendant believes in the truth of what he has published and conduct extraneous to the privileged occasion is not relied on, the claimant can only succeed if he shows that the publication contains irrelevant matter, and that it can be inferred that the defendant did not believe it to be true or realised that it was irrelevant, and brought it in for some improper motive.  Judges and juries should be slow to draw this inference, too.”

66. According to Gatley, as stated in paragraph 16.4, the “claimant will succeed in proving the existence of express malice if she can show that the defendant was not using the occasion honestly for the purpose for which the law gives protection, but was actuated by some indirect motive not connected with the privilege.”

67. In paragraph 16.15 at page 520 of Gatley states:

“Where words are published on an occasion of qualified privilege the mere proof that they are untrue is not malice, nor even evidence of malice, but proof that the defendant was aware that what he published was not true is normally conclusive evidence of malice.   The burden of proof here is squarely upon the claimant: honesty is presumed and the claimant has the burden of negativing it.”    

68. Gatley in paragraph 16.17 states:

Unreasonable belief or carelessness in arriving at belief is not malice.  This is supported by the statement of Lord Diplock in Horrocks v Lowe hereunder:

“. . . In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach.   But despite the imperfection of the mental process by which the belief is arrived at it may still be ‘honest,’ that is, a positive belief that the conclusions they have reached are true.   The law demands no more.”

69. Further down in the same paragraph, the learned author states,    

“In Horrocks v Lowe the defendant made a speech which was defamatory of the plaintiff on a privileged occasion, a meeting of the local borough council.  The judge found that while the defendant believed that everything he said was true and justifiable, his state of mind was one of “gross and unreasoning prejudice”.   The Court of Appeal and the House of Lords held that this did not amount to malice.”

70. I have to assess whether the Plaintiff has discharged her burden of proof of the Defendant’s malice.   

71. I am of the view that the Plaintiff’s attempts to show that the signature of the witness statement of To Man Wai is not authentic has not succeeded.  She alleged that the fact that the Defendant taped her lessons secretly is evidence of malice.  I do not see that to be the case.  Although the Defendant should not have taped the lessons without notifying the Plaintiff, I am of the view that the fact that he taped the lesson is not necessarily motivated by malice.  He handed the tapes to the school authority in the Student Forum.  The motive for doing so appears to have been for the purpose of justifying his words spoken in the Student Forum.  The Plaintiff sought to suggest that the Defendant should not have made his comments through the public means of the Student Forum when he had the private channel of submitting his evaluation of her teaching through written staff evaluation to the school authority.  She suggested that the fact that he made his comments at the Student Forum was due to malice.  I am of the view that making use of the Student Forum to state his views and grievances is not of itself suggestive of malice on the Defendant’s part.  

72. The Plaintiff alleged that the Defendant was incited to speak those words in the Student Forum by another Accounts teacher called Mr. Tsui.  However I find this is speculative and hearsay and there is no other evidence to support this and I do not accept it.

73. The Plaintiff stated that the comments were not factually true.   From my finding of facts, I made a finding that the words “更聲稱某些同學上堂表現惡劣和成績欠佳是因為「邪靈入體」”, were not spoken in class but on a private occasion between the Plaintiff and a few students.  In so far as that is concerned there is a discrepancy from the allegation of the Defendant that the Plaintiff spoke those words in class.  The Defendant stated that it was To Man Wai who told him that the Plaintiff spoke the words.  When the Defendant was asked whether he heard the Plaintiff speak the “某些同學上堂表現惡劣和成績欠佳是因為「邪靈入體」”stated that and if so when and where he at first said he could not remember then he said that it was in the school hall of the class after examination.   I came to the finding that the Plaintiff spoke these words in the school hall could not be true.  I have to find whether the Defendant was reckless in saying that the Plaintiff said these words in class when he did not hear the Plaintiff do so himself.  I found that the Plaintiff said these words on a private occasion and not in a class.   The Defendant would be reckless in making the statement that the Plaintiff said those words in class, if he made this statement without caring whether it was true or not.  The Plaintiff had not cross-examined the Defendant on what basis for him to say that the Plaintiff had made such a statement in class.  Not being a lawyer, the Plaintiff did not know how to cross-examine the Defendant.  There is no evidence to contradict the Defendant’s assertion that To Man Wai told him that he heard the Plaintiff make that statement in class.  There is no cross-examination of the Defendant as regards whether he believed in the truth of the statement that he made.   “If the Defendant published this untrue statement without considering or caring whether it be true or not, he is treated as if he knew it to be false, but carelessness, impulsiveness or irrationality in arriving at a belief is not to be equated with indifference to truth” (paragraph 16.3 of Gatley).     In my view, there is no direct evidence on whether the Defendant failed to consider or care whether the statement is true or not when he published it.   In my view, it is highly likely that he was careless or impulsive when making this statement and this is not to be equated with indifference to truth. 

74. “Qualified privilege is a defence only to the extent that it throws on the Plaintiff the burden of proving express malice.  Directly the Plaintiff succeeds in doing this, the defence vanishes and it becomes immaterial that the publication was on a privileged occasion” (see South v Streatfield, paragraph 16.2 of Gatley).     It seems to me that when the Defendant started speaking at the Student Forum, the Defendant genuinely sought to make his honest views known. This could be seen in his production of three tape recordings of lessons given by the Plaintiff.  By so doing he must have intended that the truth of the situation be made known.  However, I am of the view he was careless and impulsive when he spoke about the fact that the Plaintiff made the statement in class about the cause of poor performance and behaviour in students being demon possession, I believe he was careless and impulsive in making this statement.   I find however that the Plaintiff has not succeeded in establishing that the Defendant was reckless or expressly malicious when making this statement.    Lord Diplock in Horrocks v Lowe, aforesaid, states that “Judges and juries should be slow to draw the inference that he (defendant) has misused the occasion, and the defendant’s desire to use the occasion for its proper purpose must be shown to have played no significant part in his motives if malice is to be found.”   

75.  Having come to my finding aforesaid, I find that the Plaintiff has not established malice on the part of the Defendant.   I find therefore that the Defendant was protected by qualified privilege when he made the statements he did at the Student Forum.  On the other hand I find that the Plaintiff did not make the statement in class that students that perform poorly or are badly behaved are demon possessed.  

76. As a matter of comment the Plaintiff’s application for an Injunction even if she succeeded in establishing slander which she has not been able to do, is bound to fail as there is no evidence that the Defendant continued the same comments after the one occasion in the Student Forum.

77. I wish to reiterate the legal position that an occasion of Qualified Privilege is not an occasion for reckless dishonest comments.   It is an occasion for freedom of expression but the expression must not be motivated by malice.

78. I dismiss the Plaintiff’s claim with costs of the action to the Defendant to be taxed if not agreed.