JONATHAN LU AND OTHERS v. PAUL CHAN MO-PO AND ANOTHER

HCA 370/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 370 OF 2012

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D E C I S I O N

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INTRODUCTION

Introduction

1. This is a defamation action tried by a judge with a jury.  The trial before the jury concluded.  This judgment is about the outstanding issue of qualified privilege and costs of the action.

2. The 1^st and 2^nd Plaintiffs are twin brother and sister.  At the material time, they were studying Year 13 at Chinese International School (“CIS”).  The 3^rd Plaintiff is their father and a member of the board of governors of CIS (“Board of Governors”).

3. The 1^st Defendant was, at the material time, a member of the Legislative Council of Hong Kong representing the Accountancy constituency.  He was later appointed the Secretary for Development.  The 2^nd Defendant is his wife who is a director in a human resources consultancy.  Their daughter studied in the same year as the 1^st and 2^nd Plaintiffs in CIS.

4. In November 2011, rumours were circulating among students of CIS and their parents that the 1^st Plaintiff was suspected of having cheated in a test, but got away with it because his father was a member of the Board of Governors.  The rumours were, according to the Defendants, sparked off by complaints made by two classmates.

5. One day towards the end of November 2011, while the 2^nd Defendant was driving in her car with her daughter in Causeway Bay, her daughter saw the 3^rd Plaintiff and his wife on the street.  That prompted her daughter to tell the 2^nd Defendant the rumours.  Between 1 and 16 December 2011, the Defendants published five emails and one documents for the purpose of a meeting with the headmaster of CIS (the “summary”) to three senior members of the school management and 13 parents.

6. The Plaintiffs’ case is that these emails and the summary contained statements which were defamatory of the Plaintiffs (the six sets of “Offending Words”).   The Defendants do not dispute they were the publishers of the emails and summary.  Without pleading justification, they deny the Offending Words were defamatory of the Plaintiffs and put the Plaintiffs to strict proof.  But, in the event that the Offending Words are found to be defamatory, they rely on qualified privilege.

7. At the end of an eighteen days’ trial, the jury returned the verdicts that (a) all the six sets of Offending Words were defamatory of the Plaintiffs[1]; (b) four of the six sets of Offending Words were published by the Defendant maliciously; and (c) awarded damages of $100,000, $50,000 and $80,000 to the 1^st, 2^nd and 3^rd Plaintiffs respectively, in total sum of $230,000.  In addition, the jury returned a number of special verdicts on facts based on questions put to them by counsel.

8. The jury did not find the 1^st Offending Words contained in the email of 1 December 2011 (“1 December Email”) and the 5^th Offending Words contained in the second email of 4 December 2011 (“4 December 2^nd Email”) were published maliciously.  Given the above verdicts, it becomes necessary for this court to decide whether as a matter of law the two emails were published on privileged occasions.  That is a question of law for the judge alone and not the jury: Gatley[2].  During the adjournment, the parties agreed that this question be disposed of by written submission without a hearing.

9. At trial, the Defendants were represented by Mr Jason Pow and Mr Victor Dawes.  However, the present submissions were prepared by Mr Benjamin Yu and Mr Victor Dawes.  The Plaintiffs were represented throughout by Mr Robert Whitehead and Mr Lawrence Ng.

Some general legal principles

10. Counsel have no disagreement that the following well‑established principles apply to this case.

11. First, the burden of proving that the publication of defamatory material was made on an occasion of qualified privilege is on the defendant: Phipson on Evidence[3]. 

12. Second, whether this burden is discharged can only be answered by examining the pleaded defence.  The defendant must plead the facts and circumstances which render the occasion of publication an occasion of qualified privilege.  Mr Whitehead quoted Kwok Chin Wing v 21 Holdings Ltd[4] and Sinoearn International Ltd v Hyundai-CCECC Joint Venture[5] in support of the above proposition.  In Kwok Chin Wing, Ma CJ (as he then was) said that this is necessary because “it is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial”[6].  This is echoed by Ribeiro PJ in Sinoearn International where he said pleadings “impose a necessary discipline and are fundamental to enabling every procedural facet of the adversarial system to operate fairly”[7].  Though the two cases were not concerned with defamation, the principles are basic principles of general application.

13. Third, the burden of proving a pleaded defence can only be discharged by way of evidence.  This is also trite law.  In Chau Hoi Shuen Solina Holly v SEEC Media Group Ltd[8], which is a case on defamation and qualified privilege, Cheung JA said:

“ … The defence as reformulated depends on his belief that the defamatory content does not constitute an actionable libel. Contrast the position of the main publisher, in order to meet the claim, he must establish his defence such as fair comment, qualified privilege etc by way of evidence.”

The burden is on the Defendants to prove the facts and circumstances necessary for the existence of the privilege: Gatley[9].  It shall then be for the judge to rule whether the occasion is privileged: Gatley[10].

14. Fourth, the question whether the occasion is privileged is a question of law solely for the judge and not for the jury. However, if there are questions of fact in dispute upon which this question depends, they must be left to the jury, but when the jury has found the facts, it is for the judge to decide whether the occasion is privileged: Hebditch v MacIlwaine[11]; Adam v Ward[12]; and Gatley[13].

15. Fifth, at common law privileged occasions can be classified into two categories: firstly, 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; or secondly, where the maker is acting in pursuance of an interest of his and the recipient has such a corresponding interest or duty in relation to the statement, or where he is acting in a matter in which he has a common interest with the recipient: Adam v Ward[14]; Gatley[15]; and Duncan & Neill[16]. The duty or interest may be common to both the maker and the recipient of the statement, but this is not essential: Carter-Ruck[17]; and Gatley[18].

16. Sixth, in determining whether the defamatory matter was published on an occasion of privilege, the court shall take into account every circumstance associated with the origin and publication of the defamatory matter, in order to ascertain whether the necessary conditions are satisfied by which alone protection can be obtained: London Association for Protection of Trade v Greenlands[19] and Watts v Times Newspapers Ltd[20]; and Gatley[21].  It must make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication: Bashford v Information Australia (Newsletters) Pty Ltd[22].

17. Seventh, as a matter of general principle, the question of privilege is to be judged by reference to the circumstances known at the time the statement was made and the defendant cannot rely on information which subsequently comes to his attention to establish privilege: Gatley[23].

18. These principles are well settled and may be stated in relatively simple terms.  The complexity lies in their application.

THE 1^ST OFFENDING WORDS

The 1^st Offending Words/1 December Email

19. The 1^st Offending Words contained in the 1 December Email was sent by the 2^nd Defendant to Ken Pemberton and his wife Fanny Wong on the mistaken belief that Ken Pemberton was the president of the parent-teacher association of CIS (“CISPTA”).  It was then further sent to the headmaster (Dr Theodore Faunce), head of secondary (Mr Justin Alexander) and head of Year 13 (Mr Brian Mulcahy).  It reads as follows:

“ Subject:

Head Boy Cheating

Hi Ken and Fanny

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 misbehaviour 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 Ken, being the Chair of the PTA, would bring this up with Ted, and do something asap to contain the damages brought about by the matter and the way it has been handled.”

The defence pleaded

20. The Defendants pleaded qualified privilege in paragraph 20 of the Amended Defence.  That paragraph begins as follows:

“ Each of the occasions of publication of the 1 December Email, 4 December 1^st Email, 4 December 2^nd Email, 6 December Email, Summary and 16 December Email by the 1^st and/or 2^nd Defendants was an occasion of qualified privilege.”

The particulars are set out in 33 sub‑paragraphs (sub-paragraphs (1) to (31) including two added sub-paragraphs (6A) and (15A). In sub‑paragraph (31), the concluding sub-paragraph, the Defendants pleaded:

“ In the premises, the Defendants and each of the recipients of the 1 December Email, 4 December 1^st Email, 4 December 2^nd Email, 6 December Email, Summary and 16 December Email had common and corresponding duties and/or interests in the issues raised in the publications complained of in this action.”

21. Mr Whitehead complains that this “wrapped up” plea is wholly unsatisfactory.  It makes no distinction whatsoever between the circumstances associated with the origin and publication of each of the two emails.  It fails to take into account the different circumstances under which each of the emails was published and the different recipients of each of the two emails and is contrary to the second principle set out in paragraph 12 above.  He goes on to submit that having failed to make any distinction between the circumstances associated with the origin and publication of each of the two emails, the Defendants have failed to prove the facts and circumstances necessary for the existence of the privilege.

22. With respect, Mr Whitehead is adopting too mechanical an approach to the principles which he rightly set out in paragraphs 11 to 17 above.  What were the circumstances associated with the origin and publication of each of the two emails are matters of plea for the Defendants. Whether there is any distinction between the circumstances depends on the facts of the case.  If the publication of the two emails arose out of the same factual circumstances, there could be no distinction.  The question is whether on such of the pleaded circumstances as proved the court is satisfied that the two emails were published on a privileged occasion.

23. The particulars pleaded in paragraph 20 are more or less in chronological order.  Sub-paragraphs (1) to (15) are related to factual background, which are largely non-controversial and relevant to both of the two emails.  Sub‑paragraph (15A) pleads the publication of the various emails, including the two emails, to the various recipients.  The two emails were published within less than three days.  The subject matter is identical. They arose out of the same factual background and circumstances as pleaded in sub-paragraphs (1) to (15A), which are not in dispute.  There is hardly any distinction in the circumstances in which the two emails were published.  I do not consider the plea inadequate and as such justify the conclusion that the Defendants have failed to prove that the two emails were published on a privileged occasion.

24. Mr Whitehead argues that the question of whether the 1 December Email was published on a privileged occasion must be judged by the circumstances known on 1 December 2011 at 11:36 pm and that particulars pleaded concerning matters subsequent are entirely irrelevant and must be disregarded.  I have no disagreement to these propositions.  Sub-paragraphs (16) to (30) are related to events which occurred after 1 December 2011 and should rightly be excluded for the present purpose.  In fact, Mr Yu does not rely on any of the facts pleaded in those sub‑paragraphs.

25. In essence, the Defendants’ pleaded circumstances in relation to the 1^st Offending Words are the non-controversial factual background about the parties, the school, the teaching staff, the two economics tests, the rumours, and circumstances leading to the publication of the 1 December Email, etc.  Sub-paragraphs (6), (6A), (14), (15) and (15A) are particularly relevant.  These sub-paragraphs read as follows:

“ (6) The 1^st and 2^nd Defendants, Ken Pemberton and Fanny Wong, Eric Wong and Jenny Chua, Danny and Anney Lay, Christina Wong, Rosa Ling, Michelle Chin, Elite Tsui, Matthew and Mary Bersani, and Teresa Ko are all parents of Year 13 students of CIS.

(6A) Barbee Chuidian is the President of the Chinese International School Parent-Teacher Association (“CISPTA”).

(14) The 2^nd Defendant considered that there were 3 particular issues of concern which ought to be properly addressed by the school management of CIS, namely, (1) the said rumours would send a very unhealthy message to the students and erode the confidence that the students had in the school management, (ii) they would tarnish the image of CIS, and (iii) the school management had failed to do anything to stop the rumours from circulating and openly make it clear that the school was fully committed to uphold moral and academic disciplines and assert the core values of CIS.

(15) Accordingly, the 2^nd Defendant, with the support of the 1^st Defendant, sent the 1 December Email to Ken Pemberton and Fanny Wong (Ken Pemberton being the former President of the CISPTA but whom the Defendants thought was still the President at the time when the 1 December Email was sent) in the hope that Ken Pemberton would bring up the aforesaid concerns with Dr Theodore Faunce and that the school would act to contain the damage to the reputation of CIS and handle the whole issue appropriately.

(15A)  The 1 December Email, 4 December 1^st Email, 4 December 2^nd Email and 6 December Email were subsequently sent or forwarded by the Defendants to the President of the CISPTA, relevant staff or teachers of CIS and a number of parents of Year 13 students of CIS with the hope that the school management would properly address the aforesaid legitimate concerns and act to contain the damage to the reputation of CIS.”

26. Where a defendant seeks to rely on the defence of qualified privilege, he is required to specifically raise this defence and should allege and prove the facts and circumstances which he claims bring him within the protection of the privilege: Gatley[24]; Stallworthy v Geddis[25]; and Pierce v Ellis[26]. The defendant need only prove the facts and circumstances necessary for the existence of the privilege, and it will then normally be for the judge to rule whether there is reciprocity of duty or interest or other ground of privilege: Gatley[27].  On the above authorities, I am satisfied that the pleaded defence meets the requirements of pleading.

Proving qualified privilege or common interest – the legal principles

27. The Defendants’ case of qualified privilege is based on existence of a common interest between them and the recipients.  To determine whether in any given case the publication is made on an occasion of qualified privilege, the court takes a three stage approach.  The first step for the court is to ascertain and make a close scrutiny of the background leading to and surrounding the publications, the situation and relations between the parties to the communication: Bashford v Information Australia (Newsletter) Pty Ltd[28]. Next, the court determines whether the defendants had an interest in publishing the defamatory material complained of; and whether the recipients had a duty or an interest in receiving the same.  The defendant need only prove the facts and circumstances necessary for the existence of the privilege, and it will be for the judge to rule whether there is reciprocity of duty or interest or other ground of privilege: Gatley[29].   Lastly, if the court finds there is such a common interest or duty, it shall be a policy judgment for the court to decide if the publication is protected by privilege.  As the defence of qualified privilege is founded on public policy, the court balances the public interest in making and receiving the publication against the public interest in ensuring that the plaintiff’s reputation is not falsely besmirched.

28. Mr Yu submits that once the court has evidence of the background and circumstances leading to and surrounding the publication, the situation of the parties and of the relations of all concerned, the court may come to its decision on whether the publication was made by the defendant pursuant to a duty or an interest; and whether it was made to the recipient who had a corresponding interest or duty.  He submits that is a question for the court which does not require evidence.

29. Mr Whitehead disagrees with the above proposition.  He argues that it is simply wrong for the Defendants to ask the court to decide the question of privilege without reference to evidence or to the answers provided by the jury in respect of the asserted privilege.  He further submits that Mr Yu’s contention is plainly contradictory to the concessions made by Mr Pow on the Defendants’ behalf at trial that the jury findings on primary facts are important for resolving the question of qualified privilege.

30. Mr Whitehead is certainly correct to say that the question of privilege cannot be decided without reference to evidence or to the answers provided by the jury in respect of the asserted privilege, if by “evidence” he means evidence or facts other than those found by the jury.  In a paper submission without a hearing in which I have no opportunity to clarify counsel’s submission, it troubles me reading his further argument that Mr Yu’s contention is inconsistent with the concession made by Mr Pow, because that suggests the word “evidence” is to be read synonymously with the jury’s findings.  If that is what Mr Whitehead means, I, with respect, disagree.

31. First, I do not think Mr Pow made the concession which Mr Whitehead suggests he made.  It is clear from Mr Pow’s submission on Day 14 when he addressed the court about the list of questions to be put to the jury, he had in mind that the court should take into account “evidence not in dispute between the parties” when deliberating on the issue of qualified privilege.  He said[30]:

“ My Lord, of course there will be in the course evidence which is not in dispute which your Lordship can take hold of in the course of your consideration, even though it is not – because the facts may not be so minutely pleaded, but then there will be evidence not in dispute between the parties, and when there is evidence given but not disputed by the parties, your Lordship can then take on as relevant to your deliberation on qualified privilege.”

Were I to understand Mr Pow as making the concession as alleged by Mr Whitehead, I would have sought clarification, as such a concession would be wrong as a matter of law and a trespass on my function as judge of the law.

32. In determining the issue of qualified privilege, it is the court’s duty to consider all material or relevant facts, not just the jury’s answers to questions put to them.  As stated in the second principle[31], it is the pleadings that define the issues in a trial and dictate the course of the proceedings both before and at the trial.  It is for the Defendants to plead the facts and circumstances which he claims bring him within the protection of the privilege and to prove those facts.  Then it will be for the judge to rule whether there is reciprocity of duty or interest or other ground of privilege Gatley[32]. The Defendants pleaded sub‑paragraphs (1) to (15A) in paragraph 20 of the Amended Defence, which I find was adequate.  In their reply, the Plaintiffs only put the Defendants to strict proof.  They did not advance any positive case of their own.  It was on that basis, Mr Pow drafted the questions for the jury to answer, which were agreed by Mr Whitehead.  In drafting those questions, Mr Pow also fairly took into account disputes of facts not pleaded by the Plaintiffs.

33. This list of questions was only drafted at the close of the parties’ case after counsel had an idea what facts were relevant and what evidence was in dispute.  The golden rule in drafting such a list is to put in as few questions as possible so as not to unduly burden the jury. Only questions relating to facts in dispute will be put to the jury.  Facts which are not in dispute would not be included in the list.  That being the basis on which the list of questions was put to the jury, it could not be right that the court should turn a blind eye to any other relevant facts not in dispute.  Facts not in dispute include evidence put forward by the Defendants and not cross-examined by the Plaintiffs; evidence put forward by the Plaintiffs and their witnesses which were adopted or relied on by the Defendants.  These facts are incontrovertible.  It is my duty to take these facts into account in my deliberation.

34. As stated in the fourth principle, there is a differentiation in function between the judge and the jury.  The respective functions of the judge and jury where privilege is claimed have been succinctly explained by Lord Esher MR in Hebditch v MacIlwaine[33] as follows:

“ The question whether the occasion is privileged, if the facts are not in dispute, is a question of law only, for the judge, not for the jury. If there are questions of fact in dispute upon which this question depends, they must be left to the jury, but, when the jury have found the facts, it is for the judge to say whether they constitute a privileged occasion.”

In Adam v Ward[34], Lord Finlay also said:

“ It is for the judge, and the judge alone, to determine as a matter of law whether the occasion is privileged, unless the circumstances attending it are in dispute, in which case the facts necessary to raise the question of law should be found by the jury.”

In Reynolds v Times Newspapers[35], Lord Nicholls said:

“ Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge.”

35. Thus the defendant need only prove the facts and circumstances necessary for the existence of the privilege, and it will then normally be for the judge to rule whether there is a reciprocity of duty or interest or other ground of privilege: Gatley[36].  Where precisely is the line to be drawn between the function of the judge and the jury depends on what the authorities meant by “fact” or “primary fact”.  I have cited three authorities above.  There is no reason to think that the courts used the term “fact” and “primary fact” otherwise than interchangeably.  In Herald & Weekly Times v Popovic[37], Gillard AJA defined “primary facts” in this context as “the actual happening of a particular event, what was said or done, but not the inferences or conclusions to be drawn from those primary facts”.  I think that helpfully clarifies the situation.  Once the court has evidence of the “primary facts”, namely circumstances leading to and surrounding the publication, the situation of the parties, the relations of all concerned, and the specific findings, if any, of the jury, the court may draw inferences as to existence of common interest or other grounds to come to its decision on whether the publication was by the defendant pursuant to a duty or an interest.  The court does not need to hear evidence about the existence of such duty or interest.  Of course, the defendant may also adduce evidence to show that an interest or duty exists as in Winstanley v Bampton[38]. But as noted by Gatley[39], such evidence may not carry much impact unless given by a witness other than the defendant himself, as the defendant’s belief that he had an interest or duty in making the statement or communicating the information is irrelevant to the question whether the occasion is privileged: Stuart v Bell[40]; and Hebditch v MacIlwaine[41].

36. As I mentioned earlier, the defence of qualified privilege is founded on public policy.  If, on the basis of its finding on primary facts and the inference which it draws, the court is satisfied that the publisher has a duty or interest to publish and the recipients have a corresponding interest or duty to receive the publication, the court shall make a policy judgment.  The court balances the public interest in making the publication against the public interest in ensuring a reputation is not falsely besmirched.  Public interest speaks for itself.  At the heart of this public interest in making the publication is the common interest of the publisher in publishing the communication and the recipients in receiving it.  This proposition is well illustrated by the following three authorities quoted by Mr Yu.

37. Mr Yu referred me to the case of Hansen v Hansen[42] as authority for the proposition that a defendant may act for the protection of the interest of a family member by making a statement to another, eg the school.  In that case, the Supreme Court of Minnesota held that a letter sent to the county superintendent of schools by the father of a pupil in a district school, containing charges of impropriety by another pupil upon the school grounds during school or recess hours, is protected by qualified privilege.

38. Mr Whitehead distinguishes that case from the present case on the basis that the recipient of the letter in Hansen v Hansen was a proper person to whom to make a report of such impropriety and the letter was sent to no one else.  The superintendent was a person in authority and has an interest to receive the information and a duty to act on it for the protection, benefit and well being of students in the school district for which he was responsible.  The 13 parents to whom the 1 December Email was published were not.  I have no doubt that Hansen v Hansen is distinguishable on that basis from the present case, but it does not detract from the court’s finding that for the protection and benefit of his child the plaintiff parent has a legitimate interest in matters about another student’s conduct in the school where his child was studying.  I think such interest must also be held by other parents who had children studying in the same school.  Hence, independent of the superintendent, this interest must be one which is held in common as among all the parents.  Thus the distinction relied on by Mr Whitehead is one without a difference.  I would take a step further.  I think this common interest can be extended to matters such as academic integrity, school reputation and school’s attitude towards academic dishonesty.

39. In Bridgman v Stockdale[43], an invigilator published an oral remark to the class of students that one of them had cheated.  It was held that the publication of the remark was covered by qualified privilege.  The court identified the common interest between the invigilator and his class of student as a “common interest to ensure that the examination was carried out properly and fairly and to ensure that one person did not have an advantage over the others”.

40. Mr Whitehead argues that the common interest found to exist in that case was that of the invigilator’s and the whole of the class.  With respect, as with Hansen v Hansen, this distinction is one without difference.  It is significant to note that the court recognised the existence of a common interest in academic integrity between the invigilator and his class.  Similarly, it certainly cannot be said that without the invigilator, academic integrity is not a common interest among the students.  If that is a recognisable common interest among students in the class, it must also be a recognisable common interest among the parents of those students.

41. In Gibbs v Jalbert[44], a self-appointed guardian of a student who suffered unfair treatment by the teacher at an examination, published a complaint letter to the teacher, the principal, the area superintendent, the school board and the area teachers’ association about the conduct of the teacher.  The British Columbia Court of Appeal held that the nature or extent of the underlying interest was an interest that the community has in ensuring that teachers of its youth are fit to teach.  Hence, communication of information indicating that a teacher was not fit to teach is relevant and protected by qualified privilege.  As Mr Whitehead submits, this case is very different from the present case.  There was no dispute between the parties that the occasion upon which the defendant wrote the offending letter was one which attracted a qualified privilege.  The type of interest is also very different from the one which Mr Yu advances in the present case.  This case does not help the Defendants.

42. I now turn to examine the authorities referred to by Mr Whitehead, which he says should govern the present situation.  First, in Guise v Kovelis[45], the defendant accused the plaintiff in a loud voice in a club of cheating at cards.  The High Court of Australia held that there was no privilege, as the defendant could have reported the matter to the committee which managed the club.  Mr Whitehead refers me to the following passage in the judgment of Latham CJ[46]:

“ The defendant could have told the plaintiff, without making any defamatory allegation, that he would report his conduct to the committee. If the defendant had then, honestly believing that the plaintiff was a crook, said so to the committee, the common interests of the members of the club, and even of potential visitors, would have been adequately protected …

  The basis of the privilege in question is social welfare and I am not prepared to hold that it is conducive to social welfare to lay down a rule that a member of a club who is doubtful of the honesty, or is satisfied of the dishonesty, of another person who is in the club on a particular occasion is privileged in expressing his opinion to members of the club in general.  To hold the contrary would amount to granting a licence to officious and interfering mischief-makers.”

  (Emphasis added by Mr Whitehead)

He argues that similarly in the present case, the Defendants could have reported the matter from the outset directly to the headmaster, but they did not.

43. Guise v Kovelis is a straightforward case of outright defamation.  The accusation was made by the defendant, who was an onlooker at a card game, indiscriminately and loudly to all who were present in the premises, many of whom had nothing to do with the card game and some were not even members of the club.  In the present case, the communication was made to a selected number of parents of Year 13 and teachers for the purpose of addressing certain concerns which the jury has found.  Had the defendant discretely discussed with a number of members of the club for the purpose of taking collective action with the committee, the conclusion reached by the court might have been different.  Guise v Kovelis is clearly distinguishable on the facts from the present case.  It has no bearing to the question of the parents’ common interest in academic integrity in the school where their children are studying.

44. Next, Mr Whitehead referred me to the case of Ryan v Premachandran[47], which he submits is on all fours with the present case.  In that case, the parent of two students in a primary school sent an email to the plaintiff principal and 14 parents of the school stating that the principal was an incompetent, dishonest and untrustworthy person to remain in the office and calling upon her to quit.  In rejecting the defence of qualified privilege, Nicholas J of the New South Wales Supreme Court said[48]:

“ 84. The recipients were not persons with authority over, or responsible for, the plaintiff’s performance as the principal. Thus they were not persons to whom a complaint about her conduct might properly be directed as having the relevant interest in knowing of its existence, or were persons capable of acting so as to further or protect the defendant’s interest. In other words, in my opinion, it cannot be said that the defendant was under a social or moral duty to make the publication to the recipients or had an interest to protect in doing so, or that they had a relevant interest in knowing of defamatory statements relating to his personal concerns in support of his call for the plaintiff’s resignation.

85.    Furthermore, in my opinion, the defendant did not show the existence of any occasion or exigency which warranted publication of his grievances against the plaintiff …”

(Emphasis underlined by Mr Whitehead)

Again, Mr Whitehead argues that the Defendants could have reported the matter from the outset directly to the headmaster, but they did not.

45. Despite the apparent similarity, upon a close scrutiny the circumstances of that case are materially different from those of the present case.  The principal subject matter complained of by the defendant in that case was the principal’s conduct in relation to her management of the selective school test in class 6 in 2008.  The defamatory emails in that case were sent to parents of some of the students of class 5C in 2007 by the defendant on the assumption that those students would have moved to class 6 in 2008 with his own children, but he did not attempt to prove that they did: see paragraphs 80 to 82 of the judgment.  For that reason, Nicholas J held in paragraph 83 of the judgment that the defendant failed to prove that the interests in sending and receiving the defamatory assertions corresponded, namely, that all recipients were parents of children in class 6.

46. However, Nicholas J went on to hold, obiter, in the passage quoted by Mr Whitehead, that even if the element of common interest were proved, the parents were not persons with authority over or responsible for the plaintiff’s performance, to whom the defamatory materials should be published.  Likewise, Mr Whitehead argues that the 13 parents in the present case were in no different position from those 14 parents in that case.  They were not persons with authority who would be able to address the 2^nd Defendant’s concerns.

47. With respect, I think Ryan v Premachandran is distinguishable from the present case.  The interest in that case is about competency of the principal and whether she should stay in office, not academic integrity, school reputation and school’s attitude about academic dishonesty.  The principal’s competency is clearly not a matter which the parents had authority over.  The surrounding circumstances in the present case are wholly different.  There is the CIS Community, the parent-school partnership and CISPTA which even according to the headmaster has an interest in academic integrity and had dealt with such issue in the past as a general concern.  The headmaster and head of secondary welcome parental involvement and contributions.  They were thankful to the Defendants for bringing the school’s attention to the existence of the damaging rumours.  There was common interest and common concern among the parents in academic integrity and school reputation.  In fact, Ryan v Premachandran marginally supports Mr Yu’s proposition in that the court assumed the existence of a common interest among the parents in academic matters such as administration of tests, which could well be extended to academic integrity and the school’s attitude towards academic dishonesty.

48. The principle to be drawn from the analysis of the above authorities is that once the court has evidence of the circumstances leading to and surrounding the publication, the situation of the parties and of the relations of all concerned, the court can decide on the question of the existence of a common interest by drawing inference from primary facts without the need for actual evidence of that common interest.  That is the principle behind these authorities I mentioned at the beginning of this subsection.  I should add that authorities on qualified privilege are highly fact sensitive.  They must be read in the light of their particular facts.  On the other hand, these authorities are to be applied liberally and not as straightjackets.

Surrounding circumstances

49. Having set out the general background of this case in paragraphs 2 to 5 and the essence of the Defendants’ plea of privileged occasion in paragraph 25, I now turn to make a close scrutiny of the more detailed surrounding circumstances leading to the publication of the 1 December Email and the 4 December 2^nd Email.

50. The jury found by its special verdict that one of the students of Year 13, Lok Lok, observed some suspicious behaviour on the part of the 1^st and 2^nd Plaintiffs during the first economics test on 31 October 2011; that Lok Lok and three other students, namely, Laura, Danielle and Joyce, observed certain suspicious behaviour of the 1^st and 2^nd Plaintiffs during the second economics test on 24 November 2011; and that as of 29 November 2011, there was a lot of rumours circulating among the students of CIS that the 1^st Plaintiff was suspected of having cheated in a test but got away with it because his father was a member of the Board of Governors of CIS.  The jury also found that such rumours reached the 2^nd Defendant and four parents of students of Year 13, namely, Michelle Chin, Rosa Ling, Anney Lay (Danielle’s mother) and Jenny Chua (Laura’s mother).

51. The following factual circumstances are also relevant. Though these are not specific finding of the jury, these facts are not controversial.  The evidence in support of these facts came from either the sworn testimony of the plaintiffs’ witnesses or defence witnesses which was not disputed.

52. According to the headmaster and the head of secondary, the rumour was wide spread[49]. This is self evident from the first paragraph of the 1 December Email, which is never disputed by the Plaintiffs.  This state of affairs is also confirmed by CIS’s circular dated 16 December 2011. It is also significant that it was never suggested in cross-examination of any of the defence witnesses who attested to the existence of the widespread rumours that this was not the case.

53. I also note Mr Whitehead objection that the allegation about the nature of the rumours in the 1 December Email is more serious than what was pleaded in sub-paragraph (13).  But that does not detract from the thrust in Mr Yu’s submission that there were rumours about academic dishonesty which need to be handled. As was mentioned in the 1 December Email, there were different variants of the rumours.  In my view, the disparity between the pleading and the email has little significance for the present purpose.

54. There was established in CIS a parent‑teacher association, the CISPTA. The headmaster confirmed that issues relating to values, including academic honesty, had been aired throughout the years in council meetings of CISPTA.  He also confirmed that if a parent heard rumours of the sort in this case, it was entirely correct for the parent to bring it to the chairman of CISPTA for him to raise with the school management as a general concern for the well-being of the school, but not if it has to do with bringing an individual infraction.

55. CIS has always tried its best to be open‑minded and welcomes parental involvement and contributions.  The parent-school relationship is so close that the headmaster described it as a partnership and had reduced that relationship into a written parent-school partnership agreement.

56. During the course of the operation of this very successful school and the development of this parent‑school partnership, an identity or relationship recognised as the “CIS Community” evolved among the students (past and current), their parents and their teachers. The headmaster also confirmed that there is within this CIS Community a strong sense of belonging and wide concern for the well-being of the school in general.

The common interest

57. Mr Yu advanced the following as the common interest which the Defendants had in publishing the two emails and which the recipients had in receiving them:

(1)  the preservation of the image and reputation of CIS;

(2)   ensuring that CIS inculcate and instills in the students the importance of academic integrity (“academic integrity”); and

(3)   ensuring that CIS take a responsible attitude and appropriate actions as regards cheating in examinations or rumours of such behaviour (“school’s attitude towards academic dishonesty”).

58. Before embarking on the issue of common interest, there are three important points to note.  First. it is important to distinguish between this common interest which Mr Yu argues was held by the Defendants in common with the 13 parents from the various concerns which the 2^nd Defendant held (or were found not to have held) ought to be addressed by the school management (question 3(e) to the jury), and the hope which the Defendants held (or were found not to have held) when sending the 1 December Email to Ken Pemberton and the 4 December 2^nd Email to the head of Year 13 and Anney Lay (question 3(f)).  Second, it is important to note that the concerns and hope were those of the Defendants’ only, not of the 13 parents; while the common interest is an interest which the Defendants say they held in common with the 13 parents.  Obviously, the contents of the common interest, concerns and hope were not identical.  Third, it is important to bear in mind the differentiation between the function of the judge and the function of the jury.  What were the concerns and hope held, or not held, by the Defendants are primary facts to be found by the jury.  What was the common interest and whether it was held by the Defendants with the 13 parents is a question for the court to decide based on the primary facts and inference to be drawn from those facts.  While the jury’s finding that the Defendants did hold such concerns and hope supports the existence of common interest, a negative finding has an adverse impact against the existence of common interest but does not necessarily exclude its existence.

59. It is not in dispute that CIS is an expensive and prestigious school.  If there is no direct evidence of such, this fact could readily be inferred from the background of the 3^rd Plaintiff, the Defendants and parents who gave evidence.  Parents who send their children for education in this school must have been attracted by its reputation and the quality of the education it has to offer.  They must have high regard for the reputation of CIS and would jealously protect that reputation.  I think any parent in any school, not to mention parents who send their children to this expensive and prestigious school, would consider academic integrity a basic value to instill in their children and would treasure it dearly.  Naturally, they would be concerned about the school’s attitude towards academic dishonest.  Mr Yu’s submission is so full of common sense and realism that it needs little persuasion.

60. Mr Yu’s submission is also supported by authorities. In Hansen v Hansen[50], for instance, the Supreme Court of Minnesota found a parent has a legitimate interest in matters about another student’s conduct in the school where his child was studying.  As I have mentioned, all the more, that parent and, likewise, other parents, would have a legitimate interest in matters about academic integrity of their children and that other students in the school and about the school’s attitude towards academic dishonesty[51]. In Bridgman v Stockdale[52], the court found there was a common interest in academic integrity between the invigilator and his class.  Certainly, it cannot be said that without the invigilator, academic integrity is not a common interest among the students themselves.  Applying Hansen v Hansen, academic integrity must be a common interest among the students as well as among their parents.  The same must also be true for the reputation of the school and its attitude towards academic dishonesty.

61. I find it difficult to understand how the 3^rd Plaintiff as a member of the Board of Governors of CIS could have instructed his legal team to contest so rigorously that academic integrity, reputation of CIS and the school’s attitude towards academic dishonesty is not a common interest shared among parents, like him, who have children studying in CIS.  I am equally puzzled why the 1^st Plaintiff as the head boy who was honoured with the task of drafting the honour code and the 2^nd Plaintiff as one of the top student of this reputable school would likewise do the same.  This issue is one which is better conceded than contested.  Respecting the position they adopt, I continue to deal with their counsel’s submission below.

Common interest: with the three senior members of school management 

62. The 1 December Email was published to three senior members of school management and 13 parents.  The three senior members of the school management are the headmaster, the head of secondary and head of Year 13.  There is no argument that these three persons have no interest in CIS’s reputation, academic integrity, the school’s attitude in dealing with academic dishonesty and have no interest to receive the 1 December Email.  Indeed, it was admitted by the headmaster that there were harmful rumours circulating at the material times and issues affecting the reputation of CIS is a matter of legitimate concern within the CIS Community, ie including the school management.

63. The existence of an interest held in common between the Defendants, the 13 parents and the three senior members of the school management is best demonstrated by the headmaster’s email to the 2^nd Defendant after the meeting on 8 December 2011 in which he thanked the 2^nd Defendant for organizing the meeting and said that he deeply appreciated the quality of the conversation and the parents’ genuine concern for the school and students.  The headmaster said he looked to all of the parents as constructive partners at that most difficult moment in the life of the school.  He even asked for the 2^nd Defendant’s thoughts or advice.  All these show that the school management, the Defendants and the 13 parents had a legitimate interest and concern in academic integrity, the image and reputation of CIS, and the school’s attitude towards academic dishonesty.

Common interest: with the thirteen parents 

64. Mr Whitehead argues that of the 13 parents, eight had no duty or interest to receive the communication.  I do not think that could be right.  All of the 13 recipients are parents of a student of Year 13.  Six of them are parents of the four reporting students who observed suspicious behaviour of the 1^st and 2^nd Plaintiffs during the two economics tests.  Among the six, one was also a parent representative of Year 13.  One parent was a former president of CISPTA and a current committee member, Ken Pemberton.  One was the current president of CISPTA, Barbee Chuidian.  The remaining five, including Fanny Wong, who is Ken Pemberton’s wife, may not have a child who was in any way involved in the two economics tests but are parents of a Year 13 student and were actively involved in parent-school relationship of CIS.  These parents must have, at least, a general interest in the well-being of CIS and its students.

65. The existence of this common interest among the parents is best seen through the eyes of the headmaster.  As the headmaster said, academic honesty is a matter which could be properly brought by parents to the president of CISPTA for him to raise with the school management.  He admitted that academic integrity was aired in many council meetings of CISPTA.  He confirmed that bringing a general concern for the well‑being of CIS regarding academic integrity to CISPTA is entirely correct.

66. Not only that, the headmaster confirmed that CIS promotes a close parent-school relationship and welcomes parental involvement and contributions.  There is an interactive relationship between the school and the parents.  The headmaster was of the view that anything that deals with the reputation of the school is a proper subject of parents’ concern.  He agreed that parents of a Year 13 student would equally be interested and concerned about issues of academic integrity among students within that year.  Parents are in a position to provide inputs or feedbacks relating to matters of interest to the school and other parents, such as academic integrity, reputation of CIS, damage which the rumours may cause to the students, and the school’s attitude in dealing with academic dishonesty.

67. The headmaster also admitted that the parents, as members of the CIS Community, have a strong sense of belonging and concern for the well-being of the school.  The parents who gave evidence said that they shared the same concerns as the 2^nd Defendant.  Thus, these parents have a common interest with the 2^nd Defendant to collectively advance their concerns on academic integrity; image and reputation of the school; the school’s attitude towards academic dishonesty; and to contain the damage which the rumours may cause to the students.  This is particularly so for the six parents whose daughters saw the suspicious conduct of the 1^st and 2^nd Plaintiffs during the two economics tests.

68. Very significantly, as mentioned in paragraph 63 above, after the meeting on 8 December 2011, the headmaster wrote to the 2^nd Defendant unreservedly thanking her for organizing the meeting and expressing his appreciation for her and the parents’ genuine concern for the school and students and said he looked to all of the parents as constructive partners.  The headmaster even asked for the 2^nd Defendant’s thoughts or advice.  The same sentiments were expressed by the head of secondary and the head of Year 13.  These three senior members of CIS have the management of the school.  They bear the interest of the school at their hearts. They are witnesses called by the Plaintiffs.  If they all sang high praises of the 2^nd Defendant and the 13 parents for their concern and interest in the well-being of CIS, and there is no suggestion that they were being hypocritical, I am bound to accept their evidence.

69. Two very important surrounding circumstances against which the Defendants’ and the 13 parents’ evidence of their common interest could be tested are the jury’s findings that the four reporting students observed certain suspicious behaviour on the part of the 1^st and 2^nd Plaintiffs during the two economics tests and that as of 29 November 2011 there was a lot of rumours circulating among the students of CIS that the 1^st Plaintiff was suspected of having cheated in a test but got away with it because his father was a member of the Board of Governors.

70. The genuineness of the Defendants’ concerns and interest could not be doubted in the light of the jury’s unanimously finding that they issued the 1 December Email to Ken Pemberton and Fanny Wong in the hope that Ken Pemberton would bring up their concerns with the headmaster; that the school would act to contain the damage to the reputation of CIS and that the school would handle the whole issue appropriately.  Their genuineness and concerns are also supported by the jury’s finding that the Defendants subsequently forwarded the 1 December Email to the other 11 parents with the hope that the school management would properly address their concerns and act to contain the damage to the reputation of CIS.

71. The genuineness of the 13 parents’concerns and interest in academic integrity, reputation of CIS and the school’s attitude towards academic dishonesty was evidenced by their contemporaneous emails among themselves, their participation in meetings, their constructive dialogue with the headmaster leading to the meeting with the headmaster on 8 December 2011, the headmaster’s emails thereafter, the support they gave to their daughters who gave evidence in court and by some of them giving testimony in this action.

72. In his address to the jury, Mr Whitehead commented on the Defendants’ failure in calling some of the parents to testify.  Such criticism is misplaced.  Whether to call any witness or a particular witness is a matter for counsel who had conduct of the defence. In my view, Mr Pow acted most properly in not calling all the parents to testify as it would serve no purpose to repeat the evidence.  Of the parents who testified, I am very impressed by their candour, their commitment to CIS, their concerns for and interest in academic integrity, reputation of CIS, the school’s attitude towards academic dishonesty and in containing the damage caused by the rumours.

73. Mr Whitehead submits that the jury’s finding that the 2^nd Defendant did not hold the third concern, ie that the school management had failed to do anything to stop the rumours and openly make it clear that the school was fully committed to uphold academic disciplines and assert the core values of CIS, is fatal to the Defendants’ case of common interest and qualified privilege because if the 2^nd Defendant did not hold such belief, she simply had no duty or interest in sending the 1 December Email to Ken Pemberton and Fanny Wong.

74. With respect, I disagree.  First, as was explained in paragraph 58 above, the jury’s finding about the 2^nd Defendant’s three concerns is not to be equated with the common interest shared among the Defendants and the 13 parents.  The jury’s finding could not in any way detract from the fact that the Defendants and these parents shared the same common interest in academic integrity, reputation of CIS and the school’s attitude towards academic dishonesty.  Second, I cannot overlook the importance of the jury’s finding that the 2^nd Defendant held the other two concerns, which is nevertheless corroborating evidence that she and the 13 parents shared the same common interest.  Third, I am satisfied with the candour of the parents who gave evidence.  Their testimony and what they did evince the existence of that common interest.  Fourth, the testimony of the three senior members of school management, in particular the headmaster, is the best and most compelling evidence of the existence of that common interest.

75. For all of the above reasons, I find that academic integrity, preservation of the image and reputation of CIS and the school’s attitude towards academic dishonesty was an interest held in common among the Defendants, the three senior members of school management and the 13 parents at least at or around the time of publication of the 1 December Email and the 4 December 2^nd Email.  Unfortunately, though, as the saying goes, the road to hell is paved with good intention.  Over-enthusiasm in the pursuit of this common interest has allowed malice to brew in the mind of the 2^nd Defendant.

Common interest: with Ken Pemberton

76. Referring to sub-paragraph (15) of paragraph 20 of the Amended Defence, Mr Whitehead argues the fact that the Defendants were mistaken and thought Ken Pemberton was the president of CISPTA does not help them because it is well-established that “A will be liable if, intending to send to B a letter in which he has defamed B, he sends it by mistake to C, or if, intending to send to B a letter in which he has defamed C, he sends it in mistake to D, even though in the latter case the letter would have been published on a privileged occasion had it been  received and read by B.”  That proposition of the law is unchallengeable: Gatley[53].

77. However, the 1 December Email was not sent by the Defendants to Ken Pemberton solely on the basis of his mistaken identity as the president of CISPTA.  It was also sent to him and his wife, Fanny Wong, in their capacity as parents of a Year 13 student.  In sub‑paragraph (6), the Defendants pleaded that Ken Pemberton and Fanny Wong among other recipients are parents of Year 13 students.  In sub‑paragraph (15A), they pleaded that the emails were sent to these parents, which must include Ken Pemberton, with the hope that the school management would properly address the Defendants’ legitimate concerns.  In sub‑paragraph (31), they pleaded duty and common interest.  In my view, the Defendants have put in an effective alternative plea to cover the publication to Ken Pemberton in his capacity as a parent of a Year 13 student, who as I have found shared the common interest with the Defendants.

Common interest: with the president of CISPTA

78. Mr Whitehead argues further that even if the 1 December Email had been sent to the president of CISPTA, the latter would nevertheless have no duty or interest to receive the same because it is the headmaster’s unchallenged evidence that CISPTA has no jurisdiction in matters concerning student discipline or academic dishonesty; that the Defendants committed an error in judgment to send the 1 December Email to the president of CISPTA; and that it would be inappropriate for the Defendants to raise an individual case with CISPTA.  That argument applies equally to the publication to the actual president of CISPTA.

79. Despite the above, the headmaster unequivocally confirmed that issues relating to values, including academic integrity, have always been aired throughout the years in council meetings of CISPTA and that it was entirely correct for a parent to bring such issue to the CISPTA chairman for him to raise with school management, provided it has nothing to do with individual infraction.  Reading the 1 December Email, coupled with the jury’s finding of the 2^ndDefendant’s two concerns and lack of malice, I have no difficulty to find that the purpose of the email was to raise the issue of academic integrity for the well-being of CIS, the school’s attitude towards academic dishonesty, to bring to the attention of the school the existence of the rumours and the need to contain the damage.  The main purpose was not to target the 1^st and 2^nd Plaintiffs individually.  The president of CISPTA, Barbee Chuidian to whom the 1 December Email was sent, surely has an interest in common with the Defendants to receive the information.  In addition, Barbee Chuidian is also the parent of a Year 13 student.  She also has a common interest in that capacity to receive the communication.

No qualified privilege to publish or receive a rumour

80. My finding above that there was a common interest among the Defendants and the 13 parents would be adequate to dispose of the issue of common interest.  However, Mr Whitehead has made numerous other rigorous attacks on this issue which I do not consider relevant or substantiated.  Out of respect, I shall deal with some of them briefly here.  That I do not mention any other attacks does not mean I have not taken them into consideration.

81. Mr Whitehead says that the Defendants have no duty or interest to spread false rumours and the recipients have no duty or interest to receive false rumours.  He quotes the following passage of Scrutton LJ in Watt v Longsdon[54]:

“ It cannot … be the duty even of a friend to communicate all the gossip the friend hears at men’s club or women’s bridge parties to one of the spouses affected”

  (Emphasis underlined by Mr Whitehead)

He also emphasises that because of absence of a plea of justification, the 1^st Offending Words are presumed to be false.

82. With greatest respect to Mr Whitehead, such submission must be dismissed as an obvious mis‑statement of the law of qualified privilege and of quoting a dictum grossly out of context.  The defence of qualified privilege is to give protection to a publisher from liability for defamation in making statements of fact about another which are defamatory and in fact untrue, if they were made in privileged occasion: Gatley[55].  Falsity is not an issue for qualified privilege.  If the proposition advanced by Mr Whitehead is correct, a defence based on qualified privilege will never succeed if justification is not pleaded and proved.  If the publisher can only succeed by proving justification, what would be left of this defence of qualified privilege?  It takes me no time to be alerted that there is something seriously wrong about Mr Whitehead’s submission of the law.

83. In Watt v Longsdon, someone made a defamatory statement to a company alleging the plaintiff, its managing director abroad, of, among other things, immorality.  Without verifying the truthfulness of that statement or communicating with the plaintiff, the defendant who was a director and liquidator of the company, showed it to the chairman of the board of directors of the company and then to the plaintiff’s wife.  The court held that the publication to the chairman was covered by qualified privilege but not that to the plaintiff’s wife because there was no common interest between the defendant and the wife about the plaintiff’s morality issues.  The full text of the passage from which Mr Whitehead extracted the above quotation starts at 149 and reads as follows:

“ The communication to Mrs Watt stands on a different footing. I have no intention of writing an exhaustive treatise on the circumstances when a stranger or a friend should communicate to husband or wife information he receives as to the conduct of the other party to the marriage. I am clear that it is impossible to say he is always under a moral or social duty to do so; it is equally impossible to say he is never under such a duty. It must depend on the circumstances of each case, the nature of the information, and the relation of speaker and recipient. It cannot, on the one hand, be the duty even of a friend to communicate all the gossip the friend hears at men’s club or women’s bridge parties to one of the spouses affected. On the other hand, most men would hold that it was the moral duty of a doctor who attended his sister in law, and believed her to be suffering from a miscarriage, for which an absent husband could not be responsible, to communicate that fact to his wife and the husband.”

(My emphasis underlined)

84. It is obvious from the above passage that the dictum quoted by Mr Whitehead was made in the context of the learned judge’s discussion about the existence of a moral or social duty with respect to the publication to the plaintiff’s wife.  Immediately before that dictum, Scrutton LJ said whether such duty exists must depends on the circumstances of each case, the nature of the information and the relation of the speaker and recipient.  Following that was the dictum quoted by Mr Whitehead where the learned judge gave, on the one hand, an example where there was no moral or social duty and, on the other hand, another example where there was such a duty under a different set of circumstances.  In the dictum quoted by Mr Whitehead, the words “on the one hand” and the example on the other hand were left out.  Whether there was a duty, as the learned judge had pointed out in the preceding sentence, depends on all the circumstances.  The court’s finding that the same publication to the chairman was protected by privilege, a very important point not mentioned by Mr Whitehead, totally destroys his argument.  His argument as Mr Yu puts it, is “obviously a bad one”.  The great judge was quoted grossly out of context.

No interest to publish an accusation without any inquiry

85. Mr Whitehead submits, quoting Cambridge v Makin[56], that the Defendants had no interest to publish what was simply an accusation made without any proper factual basis and without any inquiry.  In that case, Tugendhat J found that the publication of a defamatory email to a certain group of interpreters was not protected by qualified privilege.  The learned judge held that the defendants had no duty to publish the email to those who had no right to vote at the annual general meeting and who had no interest in receiving it because it was simply an accusation made without any proper factual basis, without any inquiry and without giving the claimant the opportunity to rebut it.  Mr Whitehead therefore suggests that qualified privilege could not be established unless there has been an attempt at verification. 

86. With respect, I am not aware of any such legal principle.  This supposed principle is inconsistent with the purpose of the defence of qualified privilege which I have mentioned above.  Mr Whitehead has not quoted any other authority which is directly on the point.  He only relies on Cambridge v Makin.  I do not find it necessary to refer to the facts of that case, which were very complicated, and in any event irrelevant.  That case went on appeal.  A similar argument as that advanced by Mr Whitehead was flatly rejected by the Court of Appeal.  Tomlinson LJ said[57]:

“ The judge did not say that absence of verification by the appellant or an absence of an attempt on his part to verify necessarily involved that the defence of qualified privilege must fail. Nor did the judge say that had the appellant made an attempt to verify his allegation that would have ensured the success of his qualified privilege defence … In Kearns, as I have already observed, the argument which the court rejected was to the effect that qualified privilege could never attach, even within an established relationship, unless there had been an attempt at verification.”

Tomlinson LJ also went on to reiterate that one cannot be prescriptive and that it would be idle to hope for the law of privilege to be reduced to a set of mechanical rules.  It is amply clear that there is no such legal principle that qualified privilege could never attach unless there had been an attempt at verification. 

No pre-existing relationship between the Defendants and Ken Pemberton and Fanny Wong

87. Mr Whitehead says that at the time of publication of the 1 December Email, Ken Pemberton and Fanny Wong were total strangers to the Defendants and had never met whether at school functions or

socially.  He therefore submits that if there is no pre‑existing relationship between the parties prior to the publication, the defendant may be required to plead and prove additional facts, including in some cases the result of inquiries he has made, to show that in the circumstances the publication was protected by qualified privilege: Duncan & Neill[58].

88. I have no disagreement with the above proposition. It is not Mr Whitehead’s suggestion that absence of such pre-existing relationship is fatal to the defence of qualified privilege.  As was held by the English Court of Appeal in Kearns v General Council of the Bar[59], qualified privilege is more easily established in a case where the communicator and communicatee have a pre-existing relationship than where they had no.  Simon Brown LJ said[60]:

“ To my mind an altogether more helpful categorisation is to be found by distinguishing between, on the one hand, cases where the communicator and the communicatee are in an existing and established relationship (irrespective of whether within that relationship the communications between them relate to reciprocal interests or reciprocal duties or a mixture of both) and, on the other hand, cases where no such relationship has been established and the communication is between strangers (or at any rate is volunteered otherwise than by reference to their relationship) … Once the distinction is made in this way, moreover, it becomes to my mind understandable that the law should attach privilege more readily to communications within an existing relationship than to those between strangers.”

89. I agree with Mr Yu’s submission. The test is, most importantly, reduced to the same denominator that the parties essentially need to show a common or reciprocal interest based on the nature of information shared.  The test is not whether they have met or were familiar with each other.  The ultimate question is whether what was done was warranted by the occasion and all the circumstances surrounding the publication, including the question of reasonableness of conduct, the quality of the information, verification, and relation between the parties.

90. I have fully set out in paragraphs 64 to 75 above the surrounding circumstances based on which I find there was a common interest among the Defendants and the 13 parents: the CIS Community, the parent‑school partnership, the widespread rumours, the 2^nd Defendant’s two concerns as found by the jury, etc.  Those considerations are also relevant for this issue.  Mr Whitehead’s attack is on absence of verification of the rumour by the Defendants.  I have also found as a matter of law that verification is not a condition for raising the defence of qualified privilege.  Though there was no verification as such, according to the 2^nd Defendant, she believed in what her daughter told her. Her daughter has told her the source of information.  It is not unreasonable to trust her daughter whom she knows.  Besides, the jury also found in the Defendants’ favour that the four reporting students saw some suspicious conduct on the part of the 1^st and 2^nd Plaintiffs during the two economics tests.  The 2^nd Defendant’s trust on her daughter was not misplaced.  Her conduct in publishing the two emails cannot be regarded as unreasonable.  I find the absence of pre-existing relationship between the Defendants and Ken Pemberton and Fanny Wong not fatal to the Defendants’ defence.  The same applies to publication to any of the other 11 parents.

The 1^st Offending Words were beyond what was germane and reasonably appropriate to the occasion

91. Mr Whitehead submits that qualified privilege does not extend to extraneous matters which the defendant may have made at the same time as it gives no protection to irrelevant libels or something beyond what was germane and reasonably appropriate to the occasion: Adam v Ward[61].  He argues that the Defendants had no duty or interest to publish in the heading of the 1 December Email, “Head Boy Cheating” and in the body of that email that both the 1^st and 2^nd Plaintiffs were “caught cheating”, that it was “not the first and only time they cheated” and that they “managed to get away” with cheating without any consequence because the 3^rd Plaintiff was “on the Board of Governors”.

92. Mr Yu does not dispute that a statement is not protected by privilege if it is irrelevant and unconnected with the privileged occasion.  However, he submits that the approach adopted by the Plaintiffs in picking out certain isolated words in the heading and body of the email to suggest that they are not protected by privilege is erroneous.  It is well established law that the meaning of the words complained of must be read in the context of the whole article.  The whole publication must be taken together, and if the sting of one part is removed by the conclusion, bane and antidote must be taken together: Gatley[62]. Further, a heading or headline is not to be read out of context: Charleston v News Group Newspapers Ltd[63]. The words complained of by Mr Whitehead were written for the purpose of drawing the attention of the reader to the existence of the relevant rumours.  Reading the email as a whole, I am unable to find the parts complained of by Mr Whitehead as extraneous matter which went beyond what was germane and reasonably appropriate to the occasion.

Adverse inference

93. Mr Whitehead pushed rigorously at trial and again in these submissions that adverse inference be drawn against the 1^st Defendant for failing to give evidence.  He put in four pages of fully loaded arguments with authorities on this issue.  Mr Yu put in another four pages in reply.  It is unnecessary for me to reproduce those arguments.  There are only two crisp issues.  There are two essential requirements before adverse inference could be drawn.  First, there must be a definite adverse inference capable of being drawn; and, second, a lack of reasonable explanation for not giving evidence.  The legal principle applicable to drawing adverse inference for a party’s failure to give evidence has been summarised by Lam J, as he then was, in Natuzzi Spa v De Coro Ltd[64] as follows:

“ From the Australian cases cited by His Lordship, I derive these two propositions that are pertinent for present purposes,

(a) An inference can be drawn in a civil case if the evidence give rise to a reasonable and definite inference that is more probable than the other conflicting inferences;

(b)   But the facts proved must provide a reasonable basis for a definite conclusion before one enters the realm of inference.  The court should not make a finding on the basis that one guess is more probable than another.”

94. The only point made by Mr Whitehead under this theme is that by reason of the 1^st Defendant’s failure to give evidence, he has failed to adduce any evidence in support of his plea that the 1 December Email was sent to the president of CISPTA, relevant staff or teachers of CIS and the 13 parents “with the hope that the school management would properly address the foresaid legitimate concerns and act to contain the damage to the reputation of CIS”.  Hence, Mr Whitehead argues, by failing to adduce any evidence in support of his plea, the inevitable consequence is that his defence of qualified privilege must fail.

95. The question is: what adverse inference is to be drawn.  As rightly submitted by Mr Yu, the point made by Mr Whitehead is a matter of evidence and not a matter of drawing adverse inference.  The evidence to support this plea has been more than adequately addressed by the 2^nd Defendant.  What is fatal to Mr Whitehead’s argument is that he has failed to even specify the content of the specific adverse inference which he says could reasonably be drawn from the 1^st Defendant’s failure to give evidence.  The two conditions set out in Natuzzi Spa v De Coro Ltd are not met.  It is difficult to see how one can even begin to draw any adverse inference by reason of the 1^st Defendant’s failure to give evidence.

96. Besides, more importantly, in answer to question 3(f) in relation to the 1 December Email, the jury found that the Defendants did send that email to Ken Pemberton and Fanny Wong in the hope that Ken Pemberton would bring up Defendants’ concern with the headmaster; that the school would act to contain the damage to the reputation of CIS; and would handle the whole issue appropriately.  Also, in answer to question 3(h), the jury did find that the 1 December Email was subsequently sent or forwarded by the Defendants to the president of CISPTA and a number of parents of Year 13 students with the hope that the school management would properly address the Defendants’ concerns and act to contain the damage to the reputation of CIS.  Obviously, the plea was accepted by the jury.  That puts an end to Mr Whitehead’s objection.

97. Furthermore, Mr Whitehead has failed to show that the second requirement for raising adverse inference has been met.  There is no factual basis for Mr Whitehead’s assertion that no satisfactory explanation had been given for the 1^st Defendant’s decision not to give evidence.  In his closing speech to the jury on Day 15 of the trial, Mr Pow told the jury[65]:

“ Mr Whitehead will say Paul Chan (1^st Defendant) didn’t even come forward to give evidence to deny this. The question is: why did he need to do so? When we have contemporaneous jury bundle 3 to show it was Danny who said it in relation to higher authority. If saying so, he didn’t even threaten to go to higher authority, he was just worrying that, if nothing is properly done, people – the whole incident may invoke interference from higher authority. That was his worry, not his threat. And it was Danny Lay’s threat, at most, if you call it a threat.

  And Frieda (2^nd Defendant) was there.  She gave evidence.  Teresa Ko was there.  She didn’t remember anything suggesting that Paul Chan had done what the school has alleged.  Frieda explained that they’re running a joint defence.  Why do we need to call Paul just for him to come up and deny it?  You decide.  Is that a reasonable explanation?”

98. In my summing up of the evidence to the jury on Day 18, I also told the jury[66]:

“ Though all the emails were written or sent by Mrs Chan(2^nd Defendant), what the 1^st defendant did, what Mr Chan did, was just to lend his name, and he accepts full joint liability with his wife. So it does not matter who of the two of them wrote and who did what, and who wrote what, it does not really matter. He assented, or adopted, whatever, his wife said or did.

As a matter of law he is entitled to dissociate himself if he wants to. He is entitled to dissociate himself from his wife’s actions, and tell you that even if his wife acted with malice, he knows nothing about that, he is not malicious. He is entitled to do that but he is not doing that. So far as his position is concerned, he accepts full, joint liability.

…

  But you have heard Mrs Chan’s evidence, or explanation, why Mr Chan was not called.  Because Mrs Chan said she herself is the person, only person involved. Mr Chan only lent his name, gave her support, it has nothing to do with the evidence in this case, and no question about liability, as I have explained to you.”

99. As the jury found that the two sets of Offending Words were not published maliciously, it must imply the jury accepted the explanation.  And I do not see why not.  For the purpose of dealing with the qualified privilege issue, I certain would accept that explanation.  There is no substance in Mr Whitehead’s argument of adverse inference.  First, there was, as the jury found, a reason for the 1^st Defendant not giving evidence.  Second, Mr Whitehead has failed to even specify the adverse inference to be drawn.  Furthermore, as the 1^st Defendant accepts that he stands or falls with the 2^nd Defendant, his malice or absence of malice is totally irrelevant.  So too must be this issue of drawing adverse inference.

Conclusion – the balance of public interest

100. For the above reasons, I am satisfied that when the Defendants issued the 1 December Email to Ken Pemberton and when it was subsequently forwarded to the headmaster, the head of secondary, the head of Year 13 and the 13 parents, they had an interest to publish that email to the recipients and the recipients had a corresponding interest, or even duty for the three senior members of the school management, to receive the same.  They had a common interest in academic integrity in CIS, in preserving its image and reputation and in the school’s attitude towards academic dishonesty.

101. As I mentioned above, it takes little to persuade the court that the parents and school management shared that common interest.  Academic integrity must be a value which is highly treasured by the parents and the school.  In his evidence before the court, the headmaster unequivocally recognized the same.  The strong sense of belonging in the CIS Community must mean the school management, students and parents alike all held a high esteem for CIS and its reputation.  The Plaintiffs have not argued otherwise.

102. The 1 December Email is defamatory of the Plaintiffs.  On the other hand, the subject matter of that email is one in which the Defendants, the school management, and the 13 parents had a common interest.  As the defence of qualified privilege is founded on public policy, whether the defamatory material was published on an occasion of qualified privilege is a policy judgment for the court to make by balancing the public interest in making the publication against the public interest in ensuring that the plaintiff’s reputation is not falsely besmirched.  

103. It is important to note the jury’s finding that the 1^st and 2^nd Plaintiffs were seen acting suspiciously on both economics tests.  I note Mr Whitehead’s argument that the 1^st and 2^nd Plaintiffs had been repeatedly exonerated and there was no plea of justification.  I also note the 1^st and 2^nd Plaintiffs’ evidence that they were not acting suspiciously.  But the jury’s finding must mean that the jury rejected their evidence.  The issue here is not whether the 1^st and 2^nd Plaintiffs cheated or whether there was justification in issuing the emails.  That there is no evidence of cheating does not mean the 1^st and 2^nd Plaintiffs’ conduct did not arouse suspicion or did not provoke the concerns of right thinking members of the CIS Community.  The very fact that the 1^st and 2^nd Plaintiffs were exonerated lends weight to the rumours.  That in turn suggests that no adequate actions had been taken by the school management to contain the rumours and to address the concerns of the CIS Community.  The rumours, as the headmaster, the Defendants and the 13 parents recognized in their evidence or emails, had caused much damage to the reputation of the school and core values of the school and students.  The circumstances cried out for some remedial actions to be taken to contain the damage caused by the rumours.  Something has to be done to correct the students of their misapprehension and inculcate into them the importance of academic integrity and to ensure that the school take a responsible attitude and appropriate actions as regards cheating in examinations.  The Plaintiffs are also part of the CIS Community.  They must also have a greater interest in protecting these core values for the greater good of the CIS Community than their personal interest to reputation. 

104. The above considerations tilts the scale in favour of the public interest in publishing the email to the school management and the parents so that the school management could address these important core values and related matters for the benefit of the school, its students, and the CIS Community than the public interest in protecting a person’s reputation from being besmirched.  Hence, in my balancing exercise, I find that public policy must bend in favour of finding that the 1 December Email was published on an occasion of privilege.  As the jury found that the email containing the 1^st Offending Words was published without malice, the publication was protected by qualified privilege.

THE 5^TH OFFENDING WORDS

105. The circumstances leading to and surrounding the publication of the 1 December Email also formed part of the circumstances surrounding and leading to the publication of the 4 December 2^nd Email.  Many of the arguments advanced by Mr Whitehead in respect of the 1 December Email are repeated in his arguments in respect of the 4 December 2^nd Email.  I have dealt with them under the previous main heading and shall not repeat them here.  I shall only deal with Mr Whitehead’s other arguments and the new circumstances under this main heading.  There were three new or changes in circumstances: the publication of the intervening 4 December 1^st Email; the jury’s adverse finding about the Defendants’ concerns and hope; and my finding of a common interest among the Defendants, the three senior members of management of CIS and 13 parents.

The intervening 4 December 1^st Email 

106. Though not raised by Mr Whitehead, the intervening 4 December 1^st Email, which the jury found was published with malice, is a new circumstance surrounding and leading to the publication of the 4 December 2^nd Email which I must consider. 

107. Absence of malice in the subject document is not evidence supporting the existence of common interest as it is the basic threshold which the publisher of the document must pass in order to entitle him to raise the defence of qualified privilege.  However, the finding of malice in a contemporaneous document published by the publisher is evidence which suggests that the publisher has departed from the interest which he had earlier held in common with the publishees.  Here, 36 minutes before the issue of the 4 December 2^nd Email, the 2^nd Defendant had published the 4 December 1^st Email containing the 4^th Offending Words which the jury found were actuated by malice.  This evidence has an impact against the Defendants’ case of common interest.  However, having regard to the totality of the evidence, I consider the impact insignificant.

The jury’s findings in Questions 3(e), (f) and (g)

108. Mr Whitehead places great emphasis on the following specific findings of the jury in Questions 3(e), (f) and (g) in relation to the 4 December 2^nd Email:

(1)   the 2^nd Defendant, in sending the 4 December 2^nd Email, did not hold the three concerns;

(2)   the 4 December 2^nd Email was not sent or forwarded by the Defendants to the head of Year 13 and Anney Lay with the hope that the school management would properly address the Defendants’ concerns and act to contain the damage to the reputation of CIS; and

(3)   the Defendants, by forwarding and publicizing the 4 December 2^nd Email to the recipients, caused, exacerbated or perpetuated the damage to the reputation of the Plaintiffs.

109. Mr Whitehead submits that these findings are fatal to the Defendants’ case of qualified privilege as they demonstrate beyond doubt that the Defendants had no duty or interest in publishing the 4 December 2^nd Email.  As noted in paragraph 58, the subject matter of these findings and common interest are not identical.  Mr Yu’s submission about the existence of common interest is so full of common sense and realism that it needs little persuasion.  The evidence in favour of existence of common interest is also so compelling that in the totality of the evidence the jury’s adverse findings in respect of the Defendants’ concerns and hope dwarf into insignificance: see paragraphs 112 to 116 below.

Common interest in the publication and receipt of the 1 December Email

110. Another important background circumstance is my finding that on 1 December 2011, the Defendants and the parents, including Anney Lay, held a common interest in preserving the reputation of CIS, academic integrity, and in the school’s attitude towards academic dishonesty.  Anney Lay must have an even stronger urge to pursue that common interest as she was the parent representative of Year 13 at the time; the mother of one of the reporting students who saw the suspicious behaviour of the 1^st and 2^nd Plaintiffs; and, as the jury found, in relation to both the 1 December Email and the 4 December 2^nd Email, that the rumours reached many parents including Anney Lay, herself.  The Defendants, Anney Lay and the three senior members of school management must continue to hold this common interest when the 4 December 2^nd Email was copied to and received by Anney Lay.  This factual background has a significant impact on my finding whether the Defendants and Anney Lay had a common interest in the publication and receipt of the 4 December 2^nd Email.

The 5^th Offending Words

111. The 5^th Offending Words contained in the 4 December 2^nd Email was sent by the 2^nd Defendant to the head of Year 13 and copied to Anney Lay on 4 December 2011.  It read as follows:

“ Subject:

Head Boy Cheating

Hi Brian

I would be seeing you on Mon, together with Anney and Jenny (if she can make it).

Anney should have already forwarded my previous email to the Chairman of PTA on the same topic. Here is a more recent one sent to Justin Alexander, who called me in the morning to assure me that the School has taken appropriate action regarding the recent cheating case. However, from what I heard between the lines, he seems to believe that the evidence is not strong enough to justify any severe disciplinary action. I do not agree with his conclusion, especially after I have found out that Jonathan was seen cheating by 5 students about a year ago.

I look forward to discussing the matter with you, and seeking your wise counsel.”

The defence pleaded

112. The defence pleaded in respect of the 1 December Email applies also to the 4 December 2^nd Email.  Counsel repeated their arguments mutatis mutandis to the 4 December 2^nd Email as they apply to the 1 December Email.  The two emails were published within three days of one another.  Except for the two new circumstances mentioned above, the background and circumstances surrounding its publication are the same. I shall deal with specific points raised by Mr Whitehead.  The Plaintiffs raised no objection to the publication of the 4 December 2^nd Email to the head of Year 13, presumably because he is a senior member of the school management responsible for Year 13. The focus of Mr Whitehead’s submission is mainly directed at the copying of the email to Anney Lay.

No reason given for copying to Anney Lay: Common interest

113. Mr Whitehead’s attack is that the Defendants have completely failed to give any reason why they copied this email to Anney Lay and why they did not call her to testify despite she had provided a witness statement.  He argues that the Amended Defence is entirely irrelevant as it only deals with the “subsequent” sending or forwarding of, among others, the 4 December 2^nd Email, but not its copy to Anney Lay.  He submits that as the Defendants have adduced no evidence as to why they copied that email to Anney Lay, the defence of qualified privilege in relation to that email fails in limine. 

114. I think Mr Whitehead’s distinction about “copying” and “sending” highly artificial.  The real issue is whether there was any interest held in common between the Defendants and Anney Lay.  If there was, it explains everything. 

115. Save for the three new circumstances as discussed above, the factual background and surrounding circumstances leading to the publication of the 4 December 2^nd Email were essentially the same as those in relation to the 1 December Email.  The specific circumstances leading to the copying of the 4 December 2^nd Email to Anney Lay are as follows.  According to the 2^nd Defendant’s unchallenged evidence, Anney Lay suggested her to talk to the head of Year 13, who is also a parent of a student of that year.  Then, pursuant to that suggestion, the 2^nd Defendant wrote the 4 December 2^nd Email to the head of Year 13 and copied it to Anney Lay.  In that email, she confirmed with the head of Year 13 that she together with Anney Lay and Jenny Chua would be seeing him on the following day and reported to him the conversation she had with the head of secondary.  It was Anney Lay’s and the 2^nd Defendant’s common intention to draw support from the head of Year 13 for their legitimate concerns.  Having regard to the totality of the circumstances, I find that in the pursue of the common interest which they had all along held since the publication of the 1 December Email, the 2^nd Defendant must have an interest in publishing the 4 December 2^nd Email to Anney Lay and Anney Lay must have a corresponding interest in receiving it.

116. Having regard to the above, I consider the jury’s finding against the 2^nd Defendant in Questions 3(e), (f) and (g) and the finding of malice in the publication of the 4 December 1^st Email dwarf into insignificance.  Furthermore, having read the 4 December 2^nd Email against the 4 December 1^st Email and the surrounding circumstances, and despite the jury’s finding against the 2^ndDefendant in respect of her concerns and hope, I remain satisfied that the 2^nd Defendant had not departed from the interest which she had held in common with Anney Lay since 1 December 2011.  The two of them held the same common interest when copying and receiving the 4 December 2^nd Email.  This finding of common interest also answers Mr Whitehead’s criticism about lack of reason for copying the email to Anney Lay.

Failure to call Anney Lay to give evidence

117. Mr Whitehead criticises the Defendants’ failure to call Anney Lay despite she had provided a witness statement.  As I have said, it is counsel who has the conduct of the trial, and whether to call a witness is a decision for counsel.  No comment or criticism could be made for not calling a particular witness unless a definite adverse criticism could be drawn from that failure.  Here, the evidence to be given by Anney Lay is more than covered by the parents who gave evidence.  Their evidence is not in dispute.  The evidence to be given by Anney Lay is also not in dispute.  There is no dispute, for example, that she was the parent representative of Year 13 and the mother of Danielle who saw the suspicious behaviour of the 1^st and 2^nd Plaintiffs.  Her daughter testified.  There is no purpose to be served by calling her to give evidence.  Mr Whitehead has not put forward any specific adverse inference that could be drawn by the Defendants’ not calling Anney Lay to give evidence.  There is no substance in this criticism.

Conclusion

118. Given the proximity in time between the 1 December Email and the 4 December 2^nd Email, the common background and surrounding circumstances, the considerations applicable to this email are the same as those applicable to the 1 December Email.  For the same reasons, I find that the 2^nd Defendant and Anney Lay held the same common interest in sending and receiving the 4 December 2^nd Email and that communication was protected by qualified privilege.

COSTS

119. The jury found all the six sets of Offending Words defamatory of the Plaintiffs and that four of them were published maliciously.  Of the remaining two sets of Offending Words, the Defendants successfully raised the defence of qualified privilege.  The Plaintiffs are partly successful.

120. Mr Whitehead submits that the test for awarding costs is that as laid down by Sir Thomas Bingham, as he then was, in Roache v News Group Newspapers[67]:

“ who, as a matter of substance and reality, has won? Has the plaintiff won anything of value which he could not have won without fighting the action through to a finish? Has the defendant substantially denied the plaintiff the prize which the plaintiff fought the action to win?”

Applying this test, Mr Whitehead argues that the jury were asked to return 12 verdicts, six as to whether the publications were defamatory and six as to whether the publications were malicious; and the jury returned ten in favour of the Plaintiffs and awarded them substantial damages.  Hence, he submits that the Plaintiffs have substantially and in reality won and are entitled to costs.  He asks for costs on indemnity basis.

121. I think it is manifestly obvious that the Plaintiffs have won something of value which they could not have won without fighting the action through to a finish.  Mr Yu does not argue otherwise, but submits that costs should be on party and party basis and that the Defendants are entitled to an apportionment in respect of the issue of qualified privilege which they have won.

Indemnity costs - malice

122. The Plaintiffs’ claim for indemnity costs is launched on the basis of malice and no apology.  Mr Whitehead submits, quoting the dicta of Li CJ in Town Planning Board v Society for Protection of Harbour Ltd (No 2)[68], that an award of indemnity costs is not confined to situations where a case has been brought with an ulterior motive or for an improper purpose or where there is some deception or underhand conduct on the part of the losing party.  The discretion is not to be fettered or circumscribed beyond the requirement that taxation on an indemnity basis must be appropriate.  It is well settled principle that the focal point is the conduct of the unsuccessful party.  Mr Whitehead reminds me of the court’s readiness to award indemnity costs since Civil Justice Reform: Luciw v Derler & Others[69].  Against that background, he quoted Choy Yee Chun v Bond Star Development Ltd[70] in which the Court of Appeal held that taxation on an indemnity basis is appropriate where proceedings had been instituted or prosecuted maliciously and that principle applies equally to those who defended proceedings maliciously. He relies on the jury’s finding that four sets of Offending Words were published by the Defendants with malice.

123. However, Mr Yu submits that the cases referred to by Mr Whitehead are not defamation cases and the finding of malice in defamation cases should be distinguished from finding of malice in other civil cases brought or instituted or defended maliciously.

124. I think Mr Yu is plainly correct.  Malice is an element which a plaintiff must prove in order to succeed where a defamatory communication was made on a privileged occasion.  Malice in the context of publication of defamatory matter is no different from any other ingredients constituting a civil wrong.  But, malice in the context of indemnity costs refers to misconduct in litigation.  That usually involves bringing or defending a hopeless claim which wastes the opponent’s costs and which makes it appropriate that the unsuccessful party should be made to compensate the successful party’s costs on indemnity basis.  Hence, malice in defamation cases should be distinguished from other civil cases brought or instituted maliciously.  In the present case, there is no argument that the action was defended maliciously.  The conduct of the defence was extremely professional.  In my opinion, the finding of malice by the jury as such does not attract indemnity costs.

Indemnity costs - no apology

125. The Plaintiffs rely on the Defendants’ refusal to apologise prior to commencement of proceedings and to the 2^nd Defendant’s refusal to do so during the course of her cross-examination.  Mr Whitehead referred me to the case of Luciw v Derler & Others[71] as authority for his proposition that indemnity costs are appropriate where the defendant failed to apologise.

126. In Luciw v Derler & Others, the defendants published grossly defamatory material against the plaintiff.  The 1^st defendant’s defence was justification and truth.  He did not appear at trial.  Deputy High Court Judge Saunders, as he then was, considered it a serious case of defamation and awarded aggravated damages and indemnity costs to the plaintiff.  He said[72]:

“ 42. Mr Luciw has been wholly successful in his action. Having regard to the seriousness of the defamation it cannot be suggested that Mr Luciw as in any way exaggerated his claim. Mr Derler has not only pleaded justification and truth, without offering any evidence at all to substantiate those pleas, but has failed to offer any apology. No payment into court was made, there was no offer of settlement, and Mr Derler simply failed to appear at the trial.

43.    I am satisfied that this is a case for indemnity costs.  …”

127. With the greatest respect to Mr Whitehead, by no reading of the above dicta could I read Luciw v Derler & Others as laying down any legal principle that refusal to apologise must necessarily attract indemnity costs.  In my view, the learned judge was only referring to failure to apologise as one of the many surrounding circumstances justifying an award of indemnity costs, including the plea of justification and truth, failure to offer any evidence to substantiate that plea, failure to make payment into court, failure to offer settlement, and failure to appear at the trial.  Among those considerations, I think the defendant’s plea of justification and truth coupled with his failure to appear at trial and tender evidence to substantiate his plea most crucial.  A plea of justification alone would have justified indemnity costs on the face of such serious defamation.  The defendant’s failure to offer evidence to substantiate that plea and failure to appear at trial suggested a total lack of good faith in the conduct of his defence. Under those circumstances, a defendant conducting his litigation in a reasonable and responsible manner should have admitted liability, offered settlement and made payment into court if no settlement could be reached.  He should not, as did the 1^st defendant in that case, raise the plea of justification and then “abscond” at trial, making it necessary for the plaintiff to prove his case and to revisit the insulting occasions and defamatory materials.  The 1^st defendant was rubbing salt on the wound. He was acting maliciously in the conduct of the litigation.  That was what, in my view, justified indemnity costs: plea of justification and malice in the conduct of the litigation.  Failure to apologise was just one of the surrounding circumstances and probably the least of all the considerations in the learned judge’s mind.

128. In my view, it is always a defendant’s right to hold his views that a statement was not defamatory, was made on an occasion of qualified privilege, or was fair comment and hence to defend and not to apologise.  To tender an apology would be inconsistent with and prejudicial to his defence.  Of course, the defendant bears the consequence of damages and the usual costs, if he turns out wrong.  In considering whether to award indemnity costs, the court’s focus should be on the litigation conduct of the unsuccessful party.  Indemnity costs are not awarded to punish the wrongdoer’s miscalculation of or undue optimism in his chance of success.  They are usually ordered where a plea of justification failed.  This is because pursuing such a course of defence usually aggravates the injury done to the victim.  It has something to do with the conduct of litigation.  I am not aware of any principle that refusal to apologise must necessarily attract indemnity costs. For my part, I have grave reservation about such a principle.  If failure to apologise will attract indemnity costs, it would be extremely easy for counsel, by demanding an apology in the course of cross-examination, to escalate his client’s costs entitlement to indemnity costs, if not to extract an admission.  I do not think that could be right.

129. Mr Whitehead argues that the malicious nature of the libels, directed as they were towards school children and the failure of the Defendants to apologise supports an award of costs on indemnity basis.  I do not think any of these features had to do with the conduct of the defence. They are only relevant as to damages.  The jury must have taken all those matters, including every tear shed in the witness box, into account when assessing damages.  The Plaintiffs are well compensated for in damages.  I consider it wrong as a matter of principle to award them costs on indemnity basis.  Costs on party and party basis is appropriate.

Apportionment

130. On the basis that the Plaintiffs succeeded in ten out of 12 verdicts, Mr Whitehead suggests the Plaintiffs should be awarded 83.33% of their costs.  Mr Yu suggested a figure of not more than 60%, but without advancing any basis for that apportionment.

131. I take into account the background in this case and the jury’s finding in particular that the 1^st and 2^nd Plaintiffs were seen by the reporting students to have acted suspiciously in two economics tests, the Defendants’ genuine concern in academic integrity, the lack of malice in respect of the two sets of offending words; and the incontrovertible evidence that the concern was also shared by the parents and headmaster and that the Defendants’ effort was appreciated by the headmaster.  Having regard to the above matters, it was not unreasonable for the Defendants to plead the defence of qualified privilege.  To the extent they have succeeded, not only should they not be liable for the Plaintiffs’ costs, they should have their costs against the Plaintiffs.  An apportionment and set off would be fair and appropriate.

132. It is difficult to adopt any precise mathematic formula for apportionment.  I take a broad brush approach.  In respect of the costs other than the costs of the qualified privilege submissions (which covered all the costs up to the conclusion of the hearing on 30 September 2014), I apportion 10% of the costs to proving each set of Offending Words, and 40% of the costs to proving all other issues common to those six sets of Offending Words, such as the backgrounds and surrounding circumstances leading to the publications, the defamatory meaning etc.  On that basis, the Plaintiffs should have 80% of their costs.  I consider this apportionment extremely fair. In this way, the Plaintiffs will have their costs in respect of the general issues applicable to all the six sets of Offending Words, such as the defamatory meanings, and background circumstances, etc, even though they are successful only in respect of four sets.

133. I apportion the Defendants’ costs in a similar manner.  The Defendants should have 20% of their costs.  For the purpose of set off and for expediency reasons, I assume the Defendants’ costs and the Plaintiffs’ costs are similar.  Thus, after apportionment and set off, I award the Plaintiffs 60% of their costs, other than the costs of the qualified privilege submissions, on party and party basis.

134. As for the costs of the qualified privilege submissions, the Defendants have substantially and in reality succeeded.  They should have those costs against the Plaintiffs.

CONCLUSION

135. The events relating to all the six sets of Offending Words occurred at about the same time.  The circumstances were all the same.  The stings in the six sets of the Offending Words were the same.  I consider the injury suffered by the Plaintiffs in respect of four or all six sets of Offending Words were the same.  I do not consider it appropriate to reduce the jury’s award on damages by reason of the Defendants’ success in respect of the two sets of Offending Words.  Mr Yu has not put in any argument to the contrary.  For the above reasons, I enter judgment for the Plaintiffs in the amount of $230,000 as found by the jury.

136. I also make the following costs order:

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

(2)   the Plaintiffs shall pay the Defendants’ costs in respect of the qualified privilege submissions, with certificate for two counsel; and

(3)   all costs are to be taxed on party and party basis, if not agreed.