ESTHER CHAN PUI KWAN（陳佩君）also known as CHAN PUI CHUN（陳佩珍）v. CHANG WA SHAN

Press Summary (English)

Press Summary (Chinese)

FACV Nos. 2 and 3 of 2018

[2018] HKCFA 29

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 2018 (CIVIL)

(ON APPEAL FROM CACV NO. 240 OF 2015)

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IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 3 OF 2018 (CIVIL)

(ON APPEAL FROM CACV NO. 240 OF 2015)

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J U D G M E N T

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Mr Justice Ribeiro PJ:

1.   I agree with the judgment of Lord Walker of Gestingthorpe NPJ and with the concurring judgment of Mr Justice Fok PJ.

Mr Justice Tang PJ:

Background

2.   The plaintiff’s claim for defamation and malicious falsehood against the defendant arose out of a probate action over the will of Nina Wang (the “probate action”).  In the probate action,[1] Tony Chan sought to propound as the last will of Nina Wang a will under which he was the sole beneficiary of her estate which included the Chinachem Group (“Chinachem”).  Against him was the Chinachem Charitable Foundation Limited (“CCFL”) the beneficiary of Nina Wang’s estate under an earlier will (if Tony Chan’s will was valid).  The Secretary for Justice was also a party as guardian of charities.  It was Tony Chan’s case that he was on intimate terms with Nina Wang, a widow and much older woman.   The probate action attracted great public attention and Tony Chan, a married man with children, great opprobrium.

3.   Mr Gilbert Leung Kam Ho (“Gilbert Leung”) was a witness for CCFL.  He began his evidence on the 8^th day of the trial and was cross-examined by Mr Ian Mill QC, leading counsel for Tony Chan,[2] on an article in the Apple Daily of 7 May 2009 which stated that in July 2007, shortly after Nina Wang’s death, Chinachem sold a piece of land in Tai Po (the “land”) to his company for $1.01 million although it had a conservative estimated value of $10 million.  Gilbert Leung said the land was not sold to him at an undervalue and that he had not attempted to estimate the value of the land at all.  In order to undermine Gilbert Leung’s credibility, on the 9^th day of the trial (21 May 2009), Mr Mill before he continued with his cross-examination produced to the trial judge (Lam J as he then was) and the parties a bundle of documents which included a lot index plan, a land search and a document in Chinese (the “Document”) which purported to be an investment proposal for the development of the land into a cinerarium.  Mr Mill explained that the Document would be used to attack Gilbert Leung’s independence as a witness because he had received a very large financial benefit from Chinachem shortly after he provided a witness statement for use in the Probate Action.

4.   Lam J wanted to know the provenance of the documents and these exchanges took place in open court:

“His Lordship:     It depends on how the questions are put.  Perhaps, Mr Mill, can you tell us the provenance of these Chinese documents before I decide whether ---

Mr Mill:  Yes, I can, my Lord.  The individual who provided it to us is a Mr Edmund Tsang.[3] He says that he was given that by Mr Gilbert Leung.

His Lordship:  Yes, who is this Edmund Tsang and on what occasion was he given this document?

Mr Mill:  My Lord, as I understand it, Mr Leung was trying to interest Mr Tsang in the investment, but that’s the extent of my understanding, my Lord.”

5.   It is not disputed that the Document was prepared by Mr Gilbert Leung and it showed under the heading “Property Valuation” that if the land was developed as a cinerarium which was permitted under relevant town planning zoning, there would be gross revenue after development of some $360 million at a construction cost of approximately $10 million.  As Yuen JA pointed out in the Court of Appeal,[4] on its face the Document appeared to contradict the evidence which Gilbert Leung had given.

6.   Gilbert Leung accepted in cross-examination by Mr Mill that the document was made by him[5] and he also said that he had discussed the business proposal made in the Document with the plaintiff.[6] ^{& [7]}  However, in this litigation, it has always been accepted that the Document had not been provided to Tony Chan’s team by Mr Tsang and  the statement that it had been provided by him was untrue.

7.   The statement was widely reported by the media and Mr Tsang sought to correct the untruth by, inter alia, issuing press releases in five major newspapers on two separate days and incurred expenses of about HK$5 million.[8] It is not disputed that the exchanges in court and the press reports were protected by absolute privilege.  This appeal is concerned with the out of court communication of the untrue statement to Mr Mill and Mr Midgley.

8.   In order to obtain the identity of the person who provided this false information to Tony Chan, the plaintiff applied for and obtained a Norwich Pharmacal order against Tony Chan compelling him to disclose “(the informant’s) identity and the contents of his/her communication with (Tony Chan) or his legal representatives to the effect that it was (the plaintiff) who provided the document.”[9] Following the disclosure of the defendant’s name, the present action was brought for malicious falsehood as well as for defamation based on the natural and ordinary meaning of the publication as well as by way of innuendo.  It was the plaintiff’s pleaded case that the words “Edmund Tsang” in the exchange quoted in para 4 above, were false and defamatory and were based:

“… on instructions [Mr Mill] heard from the Defendant when she was providing instructions to Mr Midgley, a partner in the firm Haldanes over the speaker phone in a mobile telephone conversation between the Defendant and Mr Midgley on the 21 May 2009…”[10]

The Trial

9.   The action was heard before Mr Recorder Pow SC.  At trial, the overarching defence was that the defendant’s communication with Mr Mill/Mr Midgley was protected by absolute privilege relying on the judgment of Devlin LJ (as he then was) in Lincoln v Daniels[11]under which absolute privilege might be afforded to the provision of the impugned information (the foreshadowing) if it is sufficiently closely connected with the actuality, i.e. the use of the information in court.  The learned Recorder said:

“What Mr Mill did and said in open court was the ‘actuality’ that was undoubtedly absolutely privileged.  The issue in this case is whether this absolute privilege applied also to the argued ‘foreshadowing of it’: the communication between Mr Midgley/Mr Mill and the defendant on the issue of provenance of the Document at a time when Mr Mill was imminently contemplating and intending to make use of the Document in the cross-examination of Gilbert Leung in open court proceedings.”[12]

10.   The learned Recorder also said there was:

“… close proximity between the subject occasion/publication and Mr Mill’s actual utterance in open court in the course of making use of the Document.”[13]

“… it is a matter of necessity that absolute privilege should be extended to the communication (pertaining to the contents, purport and provenance of that document) between the provider of such document and the advocate/lawyer who was contemplating the use of that document in the cross-examination of a witness.”[14]

11.   His Lordship concluded that “the communication between [Mr] Midgley/Mr Mill and the defendant over the mobile telephone on 21 May 2009 was protected by absolute privilege.”[15] This conclusion was determinative of the action.  This overarching defence lies at the heart of this appeal and will be considered fully in due course.[16]

12.   Naturally, the learned Recorder went on to deal with the action in case his conclusion on absolute privilege is wrong. 

13.   Mr Midgley was the plaintiff’s witness and testified under subpoena. His evidence which was accepted by the Recorder is also relevant to absolute privilege, and I will deal with it in some detail.  Apart from what Mr Midgley said in his written response to a Law Society’s enquiry which will appear below, the judge summarised his evidence in these words:

“43.  …

(1)  The defendant became known to Mr Midgley when she claimed to be in a position to provide papers of a previous trial in which she was engaged with Gilbert Leung.  To access the papers, she had to go to England.  She said that the judge in that trial made remarks critical of Gilbert’s credibility. Arrangement was thus set up by the defendant rather enthusiastically to retrieve the relevant papers from her former solicitors in England.  That was supervised by Mr McDonnell. 

(2)  The defendant also became involved in some other issues and amongst those issues in which she was involved, she [informed] the team that a third party can point to a document which would be useful in impeaching Gilbert Leung’s credibility.  That third party however expected to be paid for the information.  On the one hand, in order to advise client as to whether the information was worthy, the team had to see the document.  On the other hand, the third party did not have confidence in letting Tony Chan’s team know either the name of the provider or the contents of the document.  There was some distrust on the part of the third party as to whether he would get paid.  Eventually, it was arranged through the defendant that the English part of team, Mr Mill and Mr McDonnell would be given the Document to consider.  When the Document was reviewed by Mr Mill, he advised client against paying the sum asked for, being HK$10 million.  The matter was then shelved.  This agreement was adhered to and Mr Midgely was not told about anything concerning the Document.  That was why Mr Midgely was confident to say that up to 17 May 2009, he did not know who was the provider of the Document. 

(3) …

(4)  As to the telephone conversation between the defendant and Mr Midgley on 21 May 2009, he said that his concern at the time was to ensure that his client would not have to pay any fee for the permission to use the Document.[17] Then Mr Mill requested him to call the defendant to ask questions on the provenance of the Document.  That call was made quickly by mobile telephone inside his hotel room just before rushing to court.  There was thus no attendance note.

14.   In his written response Mr Midgley had said:[18]

“7.  By the morning of the day on which Mr Leung was to be cross-examined by Mr Mill QC, 21 May 2009, we still had not obtained from [the defendant] that third party consent, but she had supplied the material which was involved. Moreover, we had met and spoken with [the defendant] and she had appeared entirely straightforward at all times.

8.  That morning, I received a telephone call from [the defendant] informing me that the (unidentified) third party who had produced the written material had now for the first time authorised her to allow us to use that written material for that purpose. I immediately went to see Mr Mill QC in his hotel prior to Court to inform him of this amongst other things.

9.  Mr Mill, who had possession of that material, told me that he required to speak with [the defendant] in my presence (using my mobile telephone’s loudspeaker operation for the purpose) to be sure that the necessary authority had been given, and to seek further information, before he was prepared to use that material in his cross-examination of Mr Leung.  Accordingly, I telephoned [the defendant] on my mobile telephone with the loud speaker phone function on, and Mr Mill relayed his questions through me as instructing solicitor.

10.   Once [the defendant] had confirmed that authority had indeed been given to the use of the material, Mr Mill asked through me where it had come from.  Mr Mill has informed me that he wanted the answer to this question because he anticipated (correctly as it turned out) that the trial judge might ask the same question before permitting cross-examination to proceed. [The defendant’s] answer to that question was ‘Edmund Tsang’.  The answer that she gave was heard by Mr Mill. Mr Mill then asked [the defendant] through me whether, if it became necessary, he could reveal the name Edmund Tsang to the Court.  [The defendant] said ‘yes’.  Again, Mr Mill heard the question that I put and the answer that she gave.”

15.   At trial, the defendant said in the telephone conversation on 21 May 2009 she mentioned the name “Edmund Tsang” in response to what she thought was Mr Midgley’s question, namely, “to whom had Gilbert Leung submitted the investment proposal in the Document.”[19] and not as Mr Midgley said “where [the Document] had come from”.[20] She said in March she had told Mr John McDonnell QC that the “source” of the Document was a Dr Siu.  Apparently, in the probate action, Tony Chan had two teams of lawyers working for him, one headed by Mr McDonnell who worked behind the scene as it were and one headed by Mr Mill instructed by Haldanes, who conducted the probate action in court. 

16.   In the Court of Appeal, Kwan JA described the defendant in these words:

“57.  The defendant was the former assistant and girlfriend of Gilbert Leung.  She had signed an agreement with Tony Chan in March 2009 in which Tony Chan agreed to pay her for the information she disclosed to him concerning Gilbert Leung and his activities.  She provided Tony Chan’s lawyers with the papers of a previous trial in England in which she successfully sued Gilbert Leung regarding a property they bought there.  She was also involved in some other issues in the probate trial and had provided various types of assistance to Mr McDonnell and Mr Mill.  She issued bills to Haldanes for her services and was paid.  The judge found that prior to the subject communication, she had ‘actively participated in the preparation of the Probate Trial as part of the legal team of Tony Chan.’”

17.   The learned Recorder accepted Mr McDonnell’s evidence for the defence that “he had mentioned to Mr Mill in March 2009 that Dr Siu was ‘the source’ of the Document.”[21] According to Mr McDonnell’s witness statement which was adopted as his evidence-in-chief, he said:[22]

“31.  I gave Ian Mill QC copies of the Chinese document and the two Land Registry Searches which Gilbert Leung had made on 3 May 2007.  I also gave him the programme for Dr Siu’s charity function and told him that Dr Siu was the ‘source’.  I also explained to him the information which [the defendant] had given me about the background to the Statement and Statutory Declaration dated 15 May 2007 and what Dr Siu had told her about how they had come to be made and what [the defendant] had told me about Dr Siu.

…

34.  I sent those Search results to Ian Mill QC by e-mail on 23 April 2009 together with a copy of another questionable transaction between Gilbert Leung and Chinachem and the first installment of [the defendant]’s Notes on the Prison Letters and a Working Note of my own which set out the chronology of the land transactions and also noted the full name of Dr Siu.  My email said I would talk him through the other Attachments when he was ready and I am sure that occurred.

35.  Perhaps the most important detail about that email for present purposes is that it was copied to [the defendant] which will have confirmed to her that Ian Mill QC knew Dr Siu’s identity, as was intended.”

18.   On the evidence, the learned Recorder found that during the telephone conversation on 21 May 2009, the question put by Mr Mill through Mr Midgley to the defendant was: “where had you got the Document from?”  To this question, the defendant answered: “Edmund Tsang.”[23] The Recorder was of the view that by May, Mr Mill might have forgotten that Mr McDonnell had told him that the source was Dr Siu.  In any event the Recorder said Mr Mill might have thought that Dr Siu was merely an intermediary source.[24] The Recorder held that the statement that Edmund Tsang had provided the Document was false and known to be false by the defendant. There is no appeal from this finding.  The learned Recorder also said:

“I also accept the evidence of Mr Midgley that Mr Mill also asked through him whether the name Edmund Tsang could be revealed to the court.  I find that the defendant gave an affirmative answer to this question.”[25]

19.   However, although the Recorder was of the view that the statement was false, and known to be false by the defendant, he concluded that it was not defamatory in its natural and ordinary meaning or in any of the pleaded innuendo meanings and he would dismiss the claim on this basis as well.  The Court of Appeal[26] by a majority overturned the Recorder regarding one of the innuendo meanings[27] and this is an issue in this appeal.[28]

20.   As for the alternative claim of malicious falsehood the learned Recorder found that the Q&A in its ordinary and natural meaning, namely, “the defendant obtained the Document from the plaintiff” was false and that the defendant knew that it was false.  It is clear that the plaintiff’s claim on malicious falsehood as pleaded was bound up with his defamation claim.  Paragraph 9 of the RASC pleaded “the words spoken by the Defendant, as set out in paragraph 8 above, were both false and published with expressed malice.”  Paragraph 8 pleaded “the Defendant’s answer, ‘Edmund Tsang’, as set out in paragraph 7 above was false and defamatory of the Plaintiff.” (My emphasis).  By re-amendment to para 8, defamation in the words’ natural and ordinary meaning was more fully pleaded.  At para 10 “The words complained of were calculated to disparage the reputation of the Plaintiff in his business and were also calculated to cause pecuniary damage to the Plaintiff in respect of his business.  The words suggested that he was not someone to be trusted in his business dealings and thereby made it less likely that people would be willing to enter into any kind of business dealings with him.”  Absent the pleaded defamatory meanings, I don’t believe it was ever the plaintiff’s case that the false statement on its own could have such effect.

21.   I think it was because the Recorder had rejected all the defamatory meanings that he found s 24[29] of the Defamation Ordinance (Cap 21) did not apply and said:

“80 …  that the simple Q&A in the aforesaid ordinary and natural meaning, though false, was not likely to cause pecuniary damage to the plaintiff in respect of his office, profession, calling, trade or business.”

22.   Nevertheless, the learned Recorder went on to hold that in any event the plaintiff could not show special damage arising out of the publication of these false words because the loss flowing from the republications which were absolutely privileged were irrecoverable,  agreeing with the Supreme Court of Virginia in Watt v McKelvie[30] where Compton J said:

“The ultimate consideration here is one of policy.  So the question becomes whether any new cause of action which may have arisen upon a third-party republication during a judicial hearing may be asserted against the non-participating original publisher or whether the immunity which attaches to the participants in the proceeding applies to such original publisher who may thus assert the privilege as an absolute defense when sued by the person allegedly defamed. We adopt the latter alternative …”

23.   On appeal a majority of the Court of Appeal agreed with the learned Recorder and held that damages are not recoverable for loss flowing from such republications.[31] This is an issue in this appeal.

The Court of Appeal

24.   The Court of Appeal was unanimous that the communication by the defendant to Mr Mill/Mr Midgley was not protected by absolute privilege.

25.   As for defamation, the Court of Appeal was unanimous that neither innuendo meaning (a) nor (b) was established.  However, they disagreed on meaning (c).  Kwan JA and Macrae J were of the view that meaning (c) was established.

26.  Para 8A of the RASC reads:

 “… by way of innuendo to Mr Mill and Mr Midgley (and others to whom the statement complained of would spread), who have knowledge of the facts and matters particularized hereunder, the Defendant’s words bore and/or would be understood to bear the following meanings:

PARTICULARS OF INNUENDO MEANINGS

(a)  the Plaintiff had betrayed a friend and a business associate, Gilbert Leung, by covertly giving Tony Chan or his legal team one of Gilbert Leung’s confidential business documents so that it could be used to discredit Gilbert Leung in a court of law;

(b)  the Plaintiff had secretly and covertly sought to assist Tony Chan and his unmeritorious challenge to Nina Kung’s will in order to try to get his hands on her fortune; and

(c)  that the Plaintiff had acted as set out above in order to obtain a personal advantage, possibly money from Tony Chan.”

27.     The particulars of facts and matters in support of innuendo were pleaded in para 8A(1) - (5), and as Macrae JA said[32] the only extrinsic fact or matter relied on for innuendo (c) is para 8A(5) which reads :

“(5)  In the light of Tony Chan’s notoriety, the allegation that the Plaintiff was the person who had supplied Tony Chan or his team with the Document would have been readily understood as meaning that the Plaintiff was in association with Tony Chan and had sought secretly and covertly to assist Tony Chan and his unmeritorious challenge to Nina Kung’s will.  Given the huge amounts of money that were at stake in the Probate Action, the ready inference to be drawn from the allegation was that the Plaintiff had acted in this way for some kind of personal advantage, very likely for money.”  

28.   Macrae JA said thus pleaded the meaning was not established because:

“221. … I could think of other possible motives for the plaintiff or other person ‘assisting’ in Tony Chan’s claim for doing so.  Personal advantage is but one of them, and not necessarily a likely one.” 

29.   However, Macrae JA said he would, although with reluctance, allow the plaintiff to rely on matters pleaded in para 7 of the RASC[33] in support of innuendo meaning (c).  Kwan JA agreed.[34] This is the subject of the second certified question[35] and will be discussed below.

30.   Yuen JA took a different view.  She said Innuendo (c) was predicated upon Innuendo (a) and/or (b) having been established. It added an innuendo meaning but only if Innuendo Meaning (a) and/or (b) had been established.[36] Nor would she allow facts not pleaded, namely, that Mr Mill and Mr Midgley were aware that there were financial terms for the use of the Document, in support of an innuendo meaning to be used to establish the innuendo meaning because:

“It is essential in a complex area of the law such as defamation where all parties and the tribunal have to be acutely aware of the exact case(s) being advanced and for which adjudication is sought.”[37]

31.   As for malicious falsehood, Kwan JA said:

“160. … the judge held that the subject communication was not likely to cause pecuniary damage to the plaintiff in his business owing to the limited defamatory meaning he found on the ordinary and natural meaning of the communication (that the defendant obtained the Document from the plaintiff and this was false).  In the light of the defamatory meaning in §8A(c) I have found to be established, I am inclined to think that the communication would likely – in the sense of something less than more likely than not – have the tendency to put people off from doing business with the plaintiff and likely to lead to pecuniary damage to him.  I would hold that section 24(1)(b) is satisfied and it is not necessary for the plaintiff to allege and prove special damage.”

32.   She awarded general damages of $30,000 for defamation and malicious falsehood.  Yuen JA did not deal with this separately.  Macrae JA said at para 228 that in an action for malicious falsehood, there is no requirement for the statement to bear any defamatory meaning. With respect, that is correct.  His Lordship then dealt with the question of special damage.[38] At para 242 he agreed with Kwan JA that general damages of $30,000 be awarded for slander and malicious falsehood.  Of course as the judgment of Kwan JA at para 160 quoted above shows, the award of general damage depended on the defamatory innuendo meaning (c), which in turn depended on the knowledge of Mr Mill and Mr Midgley that there were financial terms for the Document’s use.

33.   However, Kwan JA and Macrae JA held that damages flowing from the republications were not recoverable agreeing with the learned Recorder.

Leave to appeal

34.   On 22 December 2017, the Court of Appeal granted leave to appeal on the following questions because they raise points of law of great general or public importance: –

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

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

35.   The Court of Appeal also granted leave to the plaintiff to appeal on the following question:

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

36.     Accordingly, the Appeal Committee granted leave to appeal in respect of the first two questions on 4 January 2018 and this is the subject of FACV 2/2018.  Leave was granted in respect of the third question on 5 January 2018 and this is the subject of FACV 3/2018.

The Certified Questions

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

37.   I begin with the general statement in Gatley[39] that :

“No action will lie for defamatory statements, whether oral or written, made in the course of judicial proceedings before a court of justice or a tribunal exercising functions equivalent to those of an established court of justice.”[40]

38.   Mr James Price QC, for the plaintiff, rightly accepted that what Mr Mill said in court was said in the course of judicial proceedings and covered by judicial privilege.  In Mann v O’Neill, Brennan CJ, Dawson, Toohey and Gaudron JJ put it forcefully when they said:

“And absolute privilege attaches to statements made in the course of judicial proceedings because it is an indispensable attribute of the judicial process … Were civil liability to attach or be capable of attaching, it would impede inquiry as to the truth and justice of the matter and jeopardise the ‘safe administration of justice’.”[41]

39.   The question here is whether the privilege also covered what the defendant told Mr Mill which was repeated, as intended, in court.   

40.   Mr Price submitted that the defendant was not entitled to judicial privilege because she was a mere informant and not a witness, actual or potential.  He accepted that had the defendant been a witness and had said in court that the document was supplied by the plaintiff she would have been entitled to judicial privilege.  He also accepted that the defendant would have been protected by judicial privilege had she been a potential witness because as Lord Hoffmann said:

“the person in question must know at the time he speaks whether or not the immunity will attach. If it depends upon the contingencies of whether he will be called as a witness, the value of the immunity is destroyed.” [42]

41.   The plaintiff’s case is that as there has not been a case where the privilege has been applied to a mere informant, there is no privilege.  I do not believe the privilege should depend on the label given to the defendant.  I accept of course “the general rule is that the extension of absolute privilege is ‘viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated’”[43] and “… the test is a strict one; necessity must be shown, but the decision on whether immunity is necessary for the administration of justice must have regard to the cases in which immunity has been held necessary in the past, so as to form part of a coherent principle.”[44] With respect, I agree with Lord Hoffmann that the rationale for judicial privilege (or immunity from suit as Lord Hoffmann also called it)[45] is the proper administration of justice, and it is “designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say.”[46] (My emphasis) Taylor was concerned with absolute privilege arising from criminal investigations but these are general observations.

42.   The privilege has a long lineage.  Sankey J said in a Copartnership Farms v Harvey-Smith [1918] 2 KB 405:

“The law was originally laid down as far back as the year 1772 by Lord Mansfield in the case of Rex v Skinner (1772) Lofft, 55...” [47]

43.   The development of the privilege is illuminating.  In Munster v Lamb,[48] L, a solicitor acting as advocate, was sued by M for defamatory words spoken in the course of proceedings before a court of petty sessions. The court proceeded on the assumption that the words were spoken without any justification or excuse and from personal ill will or anger and were irrelevant to the proceedings before the court.  Brett MR said:

“I cannot find that there has been a decision of a court of law with reference to such facts as are now before us, that is, with regard to a person acting in the capacity of counsel: but there have been decisions upon analogous facts [namely, judges, parties, and witnesses]; and if we can find out what principle was applied in these decisions upon the analogous facts, we must consider how far it governs the case before us.”[49]

44.   The Master of the Rolls went on to say:

“If upon the grounds of public policy and free administration of the law the privilege be extended to judges and witnesses, although they speak maliciously and without reasonable or probable cause, is it not for the benefit of the administration of the law that counsel also should have an entirely free mind? Of the three classes—judge, witness, and counsel—it seems to me that a counsel has a special need to have his mind clear from all anxiety.”[50]

45.   That is because:

“… a judge, in dealing with the matter before him, a party in preferring or resisting a legal proceeding, and a witness in giving evidence, oral or written, in a court of justice, shall do so with his mind uninfluenced by the fear of an action for defamation or a prosecution for libel.”[51]

46.   In Lincoln v Daniels,[52] Devlin LJ  said at p. 256  :

 “The rule of absolute privilege, as has so often been pointed out, has not been devised so as to protect malicious persons but to ensure that judges and others engaged in the administration of justice should be free from the fear of proceedings and ‘the vexation of defending actions,’ as Fry L.J. put it in Munster v Lamb.” (My emphasis)

47.   Lincoln v Daniels was concerned with communications sent by the defendant to the Secretary of the Bar Council alleging professional misconduct by the plaintiff.  The defendant contended that they constituted a step in an inquiry before the Benchers of the plaintiff’s Inn of Court and were, accordingly, entitled to the protection of absolute privilege which should attach to such proceedings.  The Court of Appeal held that the communications sent to the Bar Council were not a step in an inquiry before an Inn of Court – the Bar Council were in no sense the agent of the Benchers nor derived their authority from them or from the same source as they did – and the documents were not, therefore, within the scope of absolute privilege accorded to such an inquiry.  The plea of absolute privilege therefore failed.   

48.   At pp. 257-258, Delvin LJ considered the scope of judicial privilege and said:

“… The absolute privilege which covers proceedings in or before a court of justice can be divided into three categories.  The first category covers all matters that are done coram judice. This extends to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, and includes the contents of documents put in as evidence. The second covers everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings and starting with the writ or other document which institutes the proceedings. The third category is the most difficult of the three to define. It is based on the authority of Watson v M’Ewan,[53] in which the House of Lords held that the privilege attaching to evidence which a witness gave coram judice extended to the precognition or proof of that evidence taken by a solicitor.  It is immaterial whether the proof is or is not taken in the course of proceedings.  In Beresford v White,[54] the privilege was held to attach to what was said in the course of an interview by a solicitor with a person who might or might not be in a position to be a witness on behalf of his client in contemplated proceedings.”

49.   In Watson v M’Ewan, the plaintiff sued the defendant not in respect of his evidence in court but for statements made to the client and solicitor in preparing the proof for trial and the question was whether such statements were similarly protected by judicial privilege.

50.   Devlin LJ commented on Watson v M’Ewan in these words at p. 260:

“I turn now to the third category. It is obvious that unless there were a category of this sort the absolute privilege granted for matters said and done coram judice might be rendered illusory.  This is the consideration that animates the reasoning of Lord Halsbury L.C. in Watson v. M’Ewan. Could a plaintiff, he asked, say: ‘“I do not bring the action against you for what you said in the witness box, but I bring the action against you for what you told the solicitor you were about to say in the witness box”?  If that could be done’ the Lord Chancellor goes on, ‘the object for which the privilege exists is gone, because then no witness could be called; no one would know whether what he was going to say was relevant to the question in debate between the parties. A witness would only have to say: “I shall not tell you anything; I may have an action brought against me tomorrow if I do; therefore I shall not give you any information at all.” It is very obvious that the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justice - namely, the preliminary examination of witnesses to find out what they can prove.’” (My emphasis)

51.   Importantly for present purposes, Devlin LJ went on to say:

“I do not treat this principle as necessarily limited to the proofs of witnesses. I think it might well cover, for example, instructions given by a party to his solicitor, going beyond matters to which the party could himself depose, for the preparation of a statement of claim or like document.  …  A plaintiff in a libel action could not be allowed to say, ‘I do not bring the action against you for what was said in the statement of claim but for what you instructed your solicitor and counsel to put into the statement of claim.’”

“It is a question of how far the principle in Watson v M’Ewan is to be taken.  The other authorities in which the case has been considered show that the connection between the two things – the evidence and the precognition, the document and the draft, the actuality that is undeniably privileged and the foreshadowing of it – must be reasonably close.”[55]

52.   That is because although:

“[i]t is not at all easy to determine the scope and extent of the principle in Watson v. M’Ewan.  I have come to the conclusion that the privilege that covers proceedings in a court of justice ought not to be extended to matters outside those proceedings except where it is strictly necessary to do so in order to protect those who are to participate in the proceedings from a flank attack. It is true that it is not absolutely necessary for a witness to give a proof, but it is practically necessary for him to do so, as it is practically necessary for a litigant to engage a solicitor. The sense of Lord Halsbury’s speech is that the extension of the privilege to proofs and precognition is practically necessary for the administration of justice; without it, in his view, no witness could be called.”[56] (My emphasis).

53.   It is now well established that potential witnesses are also covered by judicial privilege[57] and hence immune from attack, though it might not be right to describe such attack as a flank attack.  In other words, their immunity would not depend on their having given evidence in court and Lincoln v Daniels should be understood accordingly.  Indeed, in the joint judgment of Brennan CJ, Dawson, Toohey and Gaudron JJ in Mann v O’Neill,[58] they said:

“It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings.  It is said that it extends to any document published on an ‘occasion properly incidental [to judicial proceedings], and necessary for [them]’.”

54.   Where should the line be drawn?  Should witnesses and potential witnesses be covered and mere informants, whatever that may mean, be excluded?  I believe the privilege should cover persons who in Lord Hoffmann’s words “take part in the judicial process”, which as Devlin LJ said “must as a necessary consequence involve that which is a step towards and is part of the administration of justice,”[59]that is because persons “engaged in the administration of justice should be free from fear of proceedings and ‘the vexation of defending actions.’”[60]

55.   Here, the defendant provided the Document for use in the cross-examination of Gilbert Leung.  As the Recorder noted the Document had already been supplied to the legal team of Tony Chan and “The supply of the Document was not the occasion/publication in issue … The subject occasion/publication related solely to Mr Mill’s request for instructions/information on the provenance of the Document shortly prior to his intended use of the Document in open court in the cross-examination of Gilbert Leung.  The special factual context under which absolute privilege is argued in this issue should be firmly borne in mind”.  The Recorder went on to say:

“29. … I do not find it necessary or relevant to distinguish between the positions of a witness, a potential witness and a ‘mere informer’.  I do not find such distinction elucidative or determinative.  My analysis of public policy does not proceed by way of extending the absolute privilege on witnesses’ evidence to the situation of a mere informer or provider of information. My analysis is grounded upon on the close proximity between the subject occasion/publication and Mr Mill’s actual utterance in open court in the course of making use of the Document.” 

56.   With respect, that is also my approach.  It has not been suggested that the Document should not have been used in the cross-examination of Gilbert Leung.  Nor that Lam J should not have enquired into its provenance.  Nor that Mr Mill should have refused to inform Lam J. To my mind, it is clear beyond argument, that “the simple Q&A” as the learned Recorder called it was properly part of the judicial process, and what the defendant said to Mr Mill/Mr Midgley was so closely a part of the judicial process that the defendant should enjoy the same absolute privilege.  In other words, the conversation between the defendant and Mr Mill/Mr Midgley was an “occasion properly incidental [to judicial proceedings] and necessary for [them].”[61]

57.   Mr Price submitted that because the Document went to credit only, the defendant could not have been called as a witness. I question that.  However, as the learned Recorder explained the subject occasion/publication related solely to the provenance of the Document.  The learned Recorder was of the view that the Document was admissible in evidence.[62] He said “Mr Mill was in my view perfectly entitled to adduce the Document irrespective of Gilbert Leung’s answers.”  Also, it appears that it had been referred to in the judgment in the probate action.[63] If the Document was admissible in evidence, a witness (in the case, the defendant) could have been called to produce it and give evidence on its provenance.  Mr Mill of course could not give evidence.  But I do not think privilege should turn on such a contingency just as in Lord Hoffmann’s view it should not turn on whether the witness was actually called.  It cannot depend on whether the evidence was admissible or admitted.  Mr Price also suggested that the defendant was not prepared to be a witness but clearly there was no evidence (nor finding) to such effect and it is not necessary for me to decide whether that might make any difference. 

58.   Nor do I think the defendant was a “mere informant”.  The Recorder made no finding.  The evidence according to the Recorder[64] was that about a week before Gilbert Leung gave evidence “… I was interviewed by Tony Chan’s Junior Counsel, Miss Frances Lok Man-yin … , presumably for purpose of preparing the statement I was supposed to provide”.  On this basis, she would have been a potential witness.  There is no reason to think that had she been asked about the provenance of the document, she would not have provided the information.

59.   Be that as it may, I believe whether a person could be said to have taken part in judicial process or participated in the proceedings or whether that person’s impugned conduct “involve[s] that which is a step towards and is part of the administration of justice”[65] may be tested by considering the connection between the actuality (the disclosure in court) which is privileged and the foreshadowing of it (the information).  Here, it is difficult to imagine a closer connection.  The information was supplied for disclosure in court upon the production of the Document.  The production of the Document and the disclosure of its provenance were part and parcel of the proceedings and absolute privilege in these circumstances came squarely within the “underlying rationale for the defence”.[66] It requires no more extension of the law than say the extension to cover advocates in Lincoln v Daniels.  Anyway, if extension is required the necessity is obvious.

60.   At para 97, Kwan JA said “[w]here there is no previous authority which directly deals with a situation like the present,” she would turn to what Lord Woolf MR said in S v Newham London Borough Council [1998] EMLR 583 at 591.  With respect, the better approach is to have regard to the “underlying rationale for the defence”.[67]

61.   On such considerations, in my view, the case for immunity is clear.  Below, I will deal with the question whether damages could be recovered from the defendant in respect of the republications.  I am of the view that they are not. But the same reasons which led me to that conclusion also support my view that the publication to Mr Mill/Mr Midgley should  enjoy absolute privilege.[68]

62.   Mr Price pointed to the fact that in many of the authorities, the point was made that the immunity would not for example protect a lying witness from prosecution for perjury, nor a misbehaving advocate or judge from all consequences.  He said that a potential witness who signed witness statements did so on the basis that they may be liable for contempt of court if the statement contains false evidence.[69] I do not believe the availability of judicial privilege depends on the availability of these deterrents.  In any event, a person who supplied false information to the court may not be better placed than a potential witness who had signed a statement containing false evidence. 

63.   Since in my view absolute privilege in the circumstances of this case comes within the underlying rationale of the rule and is necessary, the fact that incidentally, it deprives the plaintiff of his otherwise valid claim makes no difference.  As the learned Recorder correctly pointed out at para 31 of his judgment, absolute privilege was extended so far “to encourage honest and well-meaning persons to assist justice even if dishonest and malicious persons may on occasion benefit from the immunity”.[70]

64.   Here, the defendant has been found a liar and one could not sympathise with her.  But, suppose, her defence to the claim had been justification, namely, that the Document had indeed been supplied by the plaintiff and after trial she was believed and the plaintiff not!  I daresay it would then be much easier to appreciate that a person in her position should not be exposed to potentially ruinous litigation.[71] As Yuen JA said:

“22.3 … the subject statement was made for the purpose of introducing a document which on its face revealed to the court the possibility that an important witness had knowingly given false evidence.” 

65.   The Court of Appeal denied the defendant judicial privilege not because she had told a lie or because of the possibly mercenary motive[72] which motivated the provision of the evidence.  So I believe one should approach this matter by asking whether judicial privilege should be available to a person who was prompted by a sense of public duty to expose a lying witness.  I think the answer is clear.  With respect to Lord Woolf MR,[73] I do not believe either qualified privilege or the possibility of summary dismissal of the action (which is highly unlikely in Hong Kong) would free such person “from the fear of proceedings” and “the vexation of defending actions”.

66.   I mentioned earlier the defendant’s identity was obtained as a result of a Norwich Pharmacal application against Tony Chan.  If judicial privilege should be limited as Mr Price submitted, in a case where a witness’s evidence (or in this case, counsel’s statement) could be said to contain information derived otherwise from the witness’s personal knowledge, a person complaining that he or she had been defamed by such information might also be able to obtain a Norwich Pharmacal order in order to uncover the identity of the ‘source’. The mere possibility can be a powerful deterrence on that person to volunteer information for judicial proceedings.

67.   Returning to the first question, my answer is yes, if the person could be said to be taking part in the judicial process which includes “that which is a step towards and is part of the administration of justice”.  Whether that is so is a question of fact which will depend on the facts of the individual case.

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

68.   With respect, I agree with the Recorder and Yuen JA.  As a matter of pleading, innuendo (c) does not stand alone but depends on innuendo (a) and /or (b). Since innuendoes (a) and (b) fail, innuendo (c) must also fail.

69.   Mr Kenneth Lam appearing for the defendant submitted that the trial was conducted on the basis of the pleaded particulars and witnesses were called (or not called) and dealt with on that basis. This is certainly not a case for allowing an unpleaded case to be made.

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

70.   Some observations are necessary to put this question in its proper context.

71.   First, the question is academic if I am right on judicial privilege but there I am in the minority.  So I must proceed on the basis that the initial publication was not absolutely privileged.

72.   The plaintiff’s case on malicious falsehood is bound up with his claim on defamation.  I will not repeat what I have said in para 31 above.   Kwan JA took the view that the plaintiff had satisfied s 24 of the Defamation Ordinance and therefore is entitled to general damages because of innuendo meaning (c).[74] This is no longer supportable having regard to my view on innuendo (c).

73.   However, the question of special damage remains, but only on the basis that the statement that the plaintiff had supplied the Document was false although it did not carry any defamatory meaning.  It is clear and Mr Price accepted that the plaintiff had never contended that the special damages claimed could flow from such simple falsehood.  He faintly suggested that we should remit this matter to the Recorder.  I would not do so.  That being the case, the claim for such special damages for the malicious falsehood must also fail and Question 3 can have no practical consequence to the plaintiff’s appeal.

74.   In these circumstances, I will deal with question 3 very briefly.

75.   On the third question, respectfully, I agree with the Recorder[75] and the majority in the Court of Appeal.[76] In the Court of Appeal Macrae JA referred to the judgments of Muir J in Belbin v McLean (2004) QCA 181 in the Queensland Court of Appeal, and of Compton J in the Supreme Court of Virginia in Watt v McKelvie.  Macrae JA said the question raises a matter of policy and Compton J said “The ultimate consideration here is one of policy”.  I respectfully agree.  But it seems to me there are two aspects to this policy. The first is that, for example, a witness should not be inhibited in his/her evidence because he/she thought his/her evidence might precipitate an action against a non-witness. The other aspect is that people should not be inhibited from volunteering information.

76.   Compton J was concerned with the first aspect when he said the court was not persuaded:

“that policy considerations should limit the privilege only to the actual participants in the proceeding.  The participant often may be motivated by a desire to shield a non-participant.  Manifestly, a person testifying in a judicial proceeding who believes that his statements would precipitate an action for defamation against a non-participant such as a family member, business associate, relative or friend, would tend to be less candid and forthright in his disclosures during interrogation and thus inhibit full and free investigation of the facts.”

77.   Watt v McKelvie was concerned with deposition of witnesses which repeated defamatory statements made by the defendant and the question was whether the absolute privilege enjoyed by the witnesses in respect of their depositions should extend to the defendant.  At first instance as well as on appeal an affirmative answer was given.

78.   On the other hand I think Muir J had the other aspect in mind.  Belbin was concerned with the defamatory statements made by two employees (defendants) in a formal complaint about a fellow employee to a director of the Bureau of Emergency Services, which the director was under statutory duty to pass on to the criminal justice commission. The director’s republication to the criminal justice commission was protected by s 101(2) of the Criminal Justice Act 1989 which provided that:

“In proceedings for defamation there is a defence of absolute privilege in respect of a publication to or by the commission or an officer of the commission made for the purpose of the discharge of the functions and responsibilities of the commission or of any of the functions of an organisational unit of the commission.”

79.   The republication was not relied on as giving rise to a separate course of action and the question was whether it could be relied on as a matter going only to the damages suffered as a result of the original publication.  The actual decision turned on the interpretation of s 101 (2). The Court of Appeal of Queensland held that the privilege extended to the original publisher of the defamation. However what Muir J said regarding the rationale behind the statutory defence shows he had the second aspect in mind when his Honour said:

“26. There is also good reason to suppose that the Legislature would have intended the defence provided by section 101(2) to apply to a person providing evidence relevant to the functions of the CJC where that person's evidentiary statement was placed before the CJC for its purposes through an intermediary. Were that not the case, informants would be placed at risk, deterred from volunteering information and the CJC's ability to perform its functions affected adversely.” (My emphasis)

80.   In neither of these cases was there any discussion whether the initial publication should be protected by absolute privilege.  Naturally I say nothing about that. These authorities were rightly relied on below to support the conclusion that the damages flowing from the republication were not recoverable. In the present case, given the close connection between the communication to Mr Mill/Mr Midgley and the disclosure in court, I believe both aspects of the policy reasons which were found in Watt and Belbin should not merely make damages irrecoverable, they support my view that the initial publication is also absolutely privileged and accordingly no question of damages could arise.

81.   My answer to this question is no.

Disposition

82.   I would allow the defendant’s appeal[77] and dismiss the plaintiff’s appeal.[78] I would also make a costs order nisi in favour of the defendant here and in the Court of Appeal, and to restore the costs order made by the Recorder.  The order nisi will become absolute unless there is an application to vary the order within 14 days of today.

Mr Justice Fok PJ:  

83.   The three questions of law for which leave to appeal was granted by the Court of Appeal (set out in the judgment of Mr Justice Tang PJ in paragraphs [34] and [35] above) reflect three distinct issues in this case on which the Recorder and Court of Appeal gave diverse answers and, on two of those issues, the Court of Appeal was itself divided.  But for the fact that there is disagreement in this Court on one of the issues, I would have simply expressed my agreement with the judgment of Lord Walker of Gestingthorpe NPJ.  However, since Mr Justice Tang has reached a different conclusion on that issue, I add this judgment to explain briefly my reasons for agreeing with Lord Walker’s judgment.

84.   The first certified question of law for decision concerns the common law defence of absolute privilege in the law of defamation and malicious falsehood.  It raises the question of whether the boundaries of that defence should be extended. Specifically, whilst it was common ground before us that the immunity from suit that the defence provides attaches to statements made in the course of judicial proceedings by the judge, jury, legal representatives, parties or witnesses, it raises the question of whether, as the defendant contends, the immunity from suit should also cover someone who provides information to a barrister or solicitor for use or possible use in those proceedings and is not a witness or potential witness.

85.   The Recorder thought that those boundaries should be extended, as can be seen in his judgment at [32] where he said:

“In my view, it is a matter of necessity that absolute privilege should be extended to the communication (pertaining to the contents, purport and provenance of that document) between the provider of such document and the advocate/lawyer who was contemplating the use of that document in the cross-examination of a witness.”

86.   Lord Walker has concluded, by reference to the finding of fact in the courts below that the defendant was merely a middleman for an informer, that extending the defence of absolute privilege to the defendant’s conversation with Mr Midgley and Mr Mill QC in this case would constitute a large extension to the defence and would leave the boundaries of the extension unclear (see his paragraph [121]).

87.   On the other hand, Mr Justice Tang differs from Lord Walker on this issue in two different respects.  First, he concludes that the defendant would have been a potential witness (see his paragraph [58]).  On that basis, it is possible to regard Mr Justice Tang’s disagreement as being on the facts rather than the ambit of the defence as a matter of law since, as a potential witness, the defendant would fall within the third category of cases identified by Devlin LJ in Lincoln v Daniels [1962] 1 QB 237.[79] So read, his decision does not require an extension of the law so presently stated (see his paragraph [59], up to the last sentence).

88.   Secondly, however, Mr Justice Tang proceeds to express the view that, in any event, there should be an extension of the law stated in Lincoln v Daniels (see the last sentence of his paragraph [59] and his paragraphs [60] et seq.).  He therefore takes a different view on the first certified question as a matter of law and would answer it in the affirmative “if the person could be said to be taking part in the judicial process which includes ‘that which is a step towards and is part of the administration of justice’” (see his paragraph [67]).

89.   With respect, I am unable to agree with Mr Justice Tang on either of the bases on which he concludes that the defendant’s original publication complained of should be protected by absolute privilege.

90.   First, as regards the facts and whether the defendant was a potential witness, it is important to note that this was not her pleaded case, which was that she was a middleman for an informant (see the judgment of Kwan JA in the Court of Appeal at [109]). Nor was this the finding of the Recorder (see his judgment at [29]), where the Recorder made it clear he was not distinguishing between a witness, potential witness or mere informer.  In the Court of Appeal, as Lord Walker points out, the finding was clearly that the defendant was not a potential witness but merely “a middleman between the legal team and an informant” (see per Kwan JA at [112]).  Finally, it was not, as I understood it, part of the defendant’s case in this Court that she was a potential witness rather than a mere informant (see, in particular, the printed Case of the Defendant (Appellant) at [27(5)]).  I do not, therefore, think that it would be right for this Court to conclude that the defendant was entitled to absolute privilege on the basis of her being a potential witness and therefore without extending the boundaries of the defence of absolute privilege.

91.   That brings me, secondly, to the main question in this appeal, as to whether the defence of absolute privilege should be extended to cover the defendant in this case. As I have indicated, I agree with Lord Walker that it should not.  I do not, with respect, agree with Mr Justice Tang that the principle laid down by Devlin LJ in Lincoln v Daniels is that a person is entitled to the immunity of absolute privilege where the person is “taking part in the judicial process” and that such taking part can be constituted merely by doing “that which is a step towards and is part of the administration of justice”.

92.   The passage in Lincoln v Daniels in which Devlin LJ described the parameters of the decision in Watson v M’Ewan, from which decision Devlin LJ’s third category of cases of absolute privilege derived, is important.  In his judgment, at p.263 of the report, Devlin LJ said this:

“It is not at all easy to determine the scope and extent of the principle in Watson v. M’Ewan. I have come to the conclusion that the privilege that covers proceedings in a court of justice ought not to be extended to matters outside those proceedings except where it is strictly necessary to do so in order to protect those who are to participate in the proceedings from a flank attack. It is true that it is not absolutely necessary for a witness to give a proof, but it is practically necessary for him to do so, as it is practically necessary for a litigant to engage a solicitor. The sense of Lord Halsbury's speech is that the extension of the privilege to proofs and precognition is practically necessary for the administration of justice; without it, in his view, no witness could be called. I do not think that the same degree of necessity can be said to attach to the functions of the Bar Council in relation to the Inns of Court. It is a convenience to the public to have a central body to deal with, but that is as high as it can be put. In my judgment the defence of absolute privilege fails.”

93.   Two points should be noted from that passage. First, it explains his Lordship’s reasoning for why the Bar Council’s functions in relation to the Inns of Court were not such as to bring it within the ambit of the immunity conferred by the privilege.  Secondly, and consistent with that, the entire thrust of the Watson v M’Ewan principle was that its extension to matters outside “proceedings in a court of justice” should be limited only to cases where it was “necessary to do so in order to protect those who are to participate in the proceedings from a flank attack” and that such persons who were to participate in those proceedings were limited to witnesses or potential witnesses.

94.   It is in this context that the passage from p.260 of Devlin LJ’s judgment in Lincoln v Daniels, where he quotes from Lord Halsbury LC in Watson v M’Ewan, is to be read.  There, he quotes this from Lord Halsbury’s speech:

“It is very obvious that the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justice – namely, the preliminary examination of witnesses to find out what they can prove.”

95.   This passage is relied on by Mr Justice Tang (see his paragraphs [50] and [59]) as the basis for the principle on which he justifies the extension of the defence of absolute privilege.  However, as will be apparent, where Lord Halsbury refers to “that which is a step towards and is part of the administration of justice”, he qualifies this by the specific reference “namely, the preliminary examination of witnesses to find out what they can prove”.  This is on its face, therefore, a limited principle and, moreover, is restricted to witnesses or those who may be witnesses.  I do not, with respect, consider that this can be relied upon as indicating that the boundaries of the defence were intended to be extended beyond potential witnesses and no case has been cited to us in which the defence has been so extended in relation to actions for defamation or malicious falsehood in respect of statements in or in connection with judicial proceedings.

96.   Like Lord Walker, with whose judgment I respectfully agree, I consider that a conclusion in favour of the defendant on this issue would be an extension of the law that would amount to a large extension of the boundaries of the defence and would leave those boundaries unclear.  This, in my view, would be undesirable.  In my view, the exercise conducted by Kwan JA in the Court of Appeal (in paragraphs [120] to [124] of her judgment), by reference to the questions posed by Lord Woolf MR in S v Newham London Borough Council [1998] EMLR 583 at p.591, supports that conclusion.  Instead, the availability of the defence of qualified privilege, which the plaintiff accepted would apply (if there was no absolute privilege) to a person in the position of the defendant in this case, would, in my judgment, provide an adequate measure of protection and strike a proper balance of the competing interests of the proper administration of justice, on the one hand, and the protection against unlawful attacks on reputation and the right of access to the courts, on the other.

97.   Further, as the learned editors of the current (12^th) edition of Gatley on Libel and Slander point out (at [13.5]), this immunity may be compared with other immunities in the administration of justice,[80] based on the same public policy justifications as those on which the absolute privilege for statements made in judicial proceedings rests, and so the rationale for their abolition[81] may mean that “the public policy arguments that once justified absolute privilege may no longer do so”.  It is unnecessary to decide if that statement should be followed but it certainly provides a compelling reason, in my judgment, for not further extending the defence of absolute privilege.

98.   Finally, I would add this further observation.  The facts of this particular case were highly unusual.  In view of the conclusions on the issues arising in respect of the second and third questions, the result of this appeal is that the plaintiff’s claim against the defendant fails in any event.  These circumstances provide further reasons why, in my view, a bold extension of the boundaries of the defence of absolute privilege is neither necessary nor desirable.

99.    On the second and third certified questions of law, it suffices for me to say that I agree with the judgment of Lord Walker. 

Mr Justice Stock NPJ:

100.   I agree with the judgment of Lord Walker of Gestingthorpe NPJ and with the concurring judgment of Mr Justice Fok PJ.

Lord Walker of Gestingthorpe NPJ:

The facts 

101.   This is satellite litigation - but satellite litigation on a fairly grand scale - arising out of the probate action concerning the will of the late Nina Wang.  The probate action attracted great publicity in Hong Kong and elsewhere, and a short summary of the background facts is sufficient. Nina Wang and her husband built up a large fortune in their Chinachem group of companies. After his kidnapping and presumed death his widow inherited his share of the fortune (although only after a hotly-contested probate action against her father-in-law). She died in 2007 and the hearing of the probate action relating to her estate began in May 2009.  In the action Tony Chan Chun Cheun (“Tony Chan”) sought to prove a later will in his favour.   He claimed Nina Wang had made this new will in 2006, displacing the primarily charitable trusts in a will made in 2002.  In the probate action Tony Chan's claim was dismissed, and he was subsequently tried, convicted and imprisoned for forgery.

102.   In the probate action Tony Chan was represented by Haldanes, the responsible partner being Mr Jonathan Midgley.  English leading counsel, Mr Ian Mill QC, was instructed, with Ms Frances Lok as his junior.  Another English silk, Mr John McDonnell QC, was also instructed on behalf of Tony Chan.   Esther Chan Pui Kwan, the Defendant in the satellite litigation, was also associated with Tony Chan's legal team.  Her precise position and function were in some doubt, and the trial judge, Mr Recorder Pow SC, addressed the issue in paragraph 18 of his careful judgment. The Recorder concluded (paragraph 18(2)) that

“I am satisfied on the evidence that prior to the subject communication on 21 May 2009, the defendant had actively participated in the preparation of the Probate Trial as part of the legal team of Tony Chan.”

103.   There has been no attack on the Recorder’s findings of fact, but his conclusion about the Defendant having been “a part of the legal team of Tony Chan” involves giving a very wide meaning to the vague expression “legal team”. The Defendant does not appear to have any legal training or experience, apart from having been a party to civil proceedings in England. She once was a friend of Mr Gilbert Leung Kam Ho (“Gilbert Leung”) with whom she cohabited for three years (Re-re-amended Defence, para 3 a to d) and she has acted “as middleman” between Doctor Sidney Siu Yim Kwan (“Dr Siu”), another friend of hers, and Tony Chan’s legal team (Re-re-amended Defence, para 3 h and i).  Had she been part of his legal team in any real sense, the conflict of interest would have been obvious and serious.

104.   The “subject communication” referred to by the Recorder is at the heart of the satellite litigation, in which the Plaintiff Tsang (or Chang) Wa Shan claims damages against the Defendant for slander and malicious falsehood.  The communication was oral, addressed to Mr Midgley and Mr Mill by telephone on the morning of 21 May 2009, shortly before the start of the ninth day of the probate trial.  Paragraph 8A of the Re-amended Statement of Claim makes clear that this is the publication sued on, though its spread by republication is relied on in support of the claim for damages.

105.   At that stage of the trial Gilbert Leung was in the middle of giving evidence for the proponents of Nina Wang's earlier will.  Mr Mill planned to attack his credit by suggesting that he was not an impartial witness. In particular, it was suggested that he had received a large financial benefit from the Chinachem Charitable Foundation Limited in the form of a sale of some land at Tai Po which had unrealised development potential. This charitable trust had been established by Nina Wang and her husband during their lives, financed by regular gifts from the Chinachem group of trading companies, but under her 2002 will it was to be a major beneficiary in her estate.

106.   In his evidence Gilbert Leung denied that the land was worth about $10m, and said that he had not tried to estimate its value. It was therefore significant whether Gilbert Leung had formulated plans for the development of this land.   The Defendant, with all her past knowledge of Gilbert Leung, seems to have undertaken the task of finding out whether there were plans for the development of the Tai Po land. Dr Siu came to play an increasingly important role in these inquiries. Much of the detail is uncertain, partly because, after a careful examination of the evidence given to him, the Judge rejected much of the Defendant’s evidence, preferring that of Mr Midgley where it differed.

107.   Although the crucial telephone conversation with Mr Midgley and Mr Mill did not occur until the ninth day of the trial (21 May 2009) the search for material about the development of the Tai Po land seems to have started, so far as Mr Midgley was concerned, not later than early in March 2009, when the Defendant came to see him and told him of her past knowledge of Gilbert Leung. She also told him, according to her main witness statement in this action, that Dr Siu (for whom she was, as the Judge found, acting as an intermediary) did not want his details, or details about the Tai Po land, to be disclosed until Tony Chan had agreed how much he was willing to pay for the information. The Defendant reported this to Tony Chan, who said that he was prepared to pay in principle, but wanted the value of Dr Siu's evidence to be assessed by his own legal team.  There was a meeting on 9 March 2009 at Mr Midgley’s office attended by Mr Midgley, Tony Chan and the Defendant. It was decided that she would go to London to recover files relating to the English litigation, and that the English silks would evaluate the evidence.  Dr Siu was willing for his identity, and the supporting documents, to be disclosed to the English silks, but to no others.  The Defendant was in London between 24 and 28 March 2009 sorting papers and preparing notes for Mr Midgley and Mr McDonnell, whom she saw in London.  She also gave them copies of the documents produced by Dr Siu.  During April there seems to have been little or no progress in negotiations with Dr Siu, who was, the Defendant stated, becoming aggrieved and frustrated.

108.   Finally, towards the end of the week before Gilbert Leung was to give evidence, the Defendant was asked to invite Dr Siu to meet Tony Chan at Mr Midgley’s office. The meeting took place on the afternoon and early evening of Sunday, 17 May 2009.  Apart from these four persons, Ms Lok was also present and took notes.  Dr Siu gave his name-card to Tony Chan and Mr Midgley at the outset.  There was a lengthy and inconclusive discussion, mainly in Cantonese, a language which (according to the Defendant) Mr Midgley does not speak or understand.  It appears that no accommodation between Dr Siu and Tony Chan was reached at this meeting, but such an accommodation does seem to have been concluded later, when Gilbert Leung had begun his evidence.

109.   I have gone through these matters of fact in some detail because the sequence of events is surprising, to say the least. It gets even more surprising because the Defendant's evidence, which was not accepted, was that in the course of her crucial telephone conversation, just before the cross-examination of Gilbert Leung was resumed, she gave the right answer to what she believed to be the wrong question.  Her evidence (which the Recorder rejected) was that she understood that Mr Midgley already knew (at latest from the meeting on the previous Sunday) that Dr Siu was the source of the copies of the documents relating to the Tai Po land, and that she was being asked for whom the original documents were prepared. In the event the following exchanges took place in court when the proceedings started an hour late (to enable Ms Lok to prepare a translation of the documents):

His Lordship:  It depends on how the questions are put.  Perhaps, Mr Mill, you can tell us the provenance of these Chinese documents before I decide whether…

Mr Mill:  Yes, I can, my Lord.  The individual who provided it to us is a Mr Edmund Tsang.  He says that he was given that by Mr Gilbert Leung.

His Lordship:  Yes, who is this Edmund Tsang and on what occasion was he given the document?

Mr Mill:  My Lord, as I understand it, Mr Leung was trying to interest Mr Tsang in the investment, but that's the extent of my understanding, my Lord.

110.   So Lam J and anyone else in court (including the press) may have thought that the Plaintiff was both the person by whom the documents were produced,and the person for whom they were originally intended. This distinction is crucial to the Plaintiff’s claim: it is one thing to be the recipient of an unsolicited business offer, but quite another thing to be willing to disclose it, for a high fee, in an attempt to denigrate an established businessman in a highly speculative cause.

111.   The Defendant was not herself present in court during these exchanges.  She was in mainland China, from where she conducted the crucial phone call to Mr Midgley (who took the call) and Mr Mill (who heard it clearly on loudspeaker).  In the event, in his monumental 935–paragraph judgment given on 2 February 2010, Lam J held (paragraph 90) that Tony Chan did not have solid grounds for suggesting that an advantage was given to Gilbert Leung.

The certified questions

112.   These unusual facts give rise to some difficult issues of law, which are to some extent intertwined.  Three questions have been certified by the Court of Appeal as being of great general or public importance, the first two on the application of the Defendant and the third on the application of the Plaintiff. The questions are these:

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

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

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

113.   The two courts below gave diverse answers to these questions as they arose in the context of this case.  In brief, the first question (extent of absolute privilege for an informant) was answered in the affirmative by the Recorder (paragraph 34) but in the negative (unanimously) by the Court of Appeal (paragraphs 2, 108, 203).  The second question (pleading of innuendo) was answered in the negative by the Recorder (paragraphs 76 and 77) and by Yuen JA (paragraph 26) but (in effect) affirmatively by Kwan JA and Macrae JA (paragraphs 151 and 225).  The third question did not arise for the Recorder but he would have answered it in the negative (paragraph 89).  Kwan JA and Macrae JA did answer it in the negative (paragraphs 180 and 241) but nevertheless awarded $30,000 general damages because of the view that they took on the innuendo point.  Yuen JA considered that the slander claim failed on the innuendo point, but had it succeeded she would have held that damages should include losses suffered through republications (paragraph 51). 

Absolute privilege

114.   The first and second issues in the appeal, and for the Recorder ultimately the only live issues, were what the Defendant told Mr Midgley and Mr Mill on the telephone on the morning of 21 May 2009, and whether she was entitled to absolute privilege in respect of what she said in that telephone conversation.   As to the first of these issues, it was, as the Recorder observed (paragraph 38) “only through a combination of the question and the answer that the Defendant could possibly be said to have made a ‘statement’”.  The Recorder devoted just over half of his judgment to these topics, with a close examination of the detail of the Defendant’s witness statements and oral evidence in the course of his discussion.  He did not accept her evidence on this point (paragraphs 38 to 53).  As to the second issue, which he dealt with first, the Recorder decided (paragraphs 9 to 36) that the Defendant was entitled to absolute privilege.

115.   The Court of Appeal disagreed.  The principal judgment on this issue is that of Kwan JA, who covered the issue in paragraphs 86 to 126 of her judgment.  Yuen JA added nothing on this point (paragraph 2). Macrae JA added a little, emphasising (paragraphs 203-206) that the extension of the law in Taylor v Director of the Serious Fraud Office [1992] 2 AC 177 arose from prosecution disclosure obligations in criminal cases, and had no application to civil cases.

116.   Kwan JA dealt first with the purpose and rationale of this type of absolute privilege, citing a very well-known passage from the judgment of Devlin LJ in Lincoln v Daniels [1962] 1 QB 237, 257. That passage notes that the immunity can extend to the witness statement or similar written statement made by a person who later gives oral evidence, or even a statement, prepared for that purpose, made by someone who does not eventually give oral evidence.  She also referred to the observations of Lord Hoffmann in Taylor v Serious Fraud Office[1999] 2 AC 177, 214.  After citing the plurality judgment in the Australian case of Mann v O’Neill (1997) 71 AJLR 903, 907, Lord Hoffmann commented,

“Thus the test is a strict one; necessity must be shown, but the decision on whether immunity is necessary for the administration of justice must have regard to the cases in which immunity has been held necessary in the past, so as to form part of a coherent principle.”

117.    Taylor v Serious Fraud Office (above) and Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 show the widening of the rule so as to meet a particular problem, that is the need for extensive investigations into suspicions of serious organized crime, coupled with the need for disclosure by the prosecution to the defence of unused material held by the prosecution.  Lord Hutton’s speech in Darker contains (at pp 463-8) a useful summary of the development of the principle, which is of considerable antiquity.  But it also contains a warning (at pp 468-9) against the danger of extending this form of absolute privilege merely by analogy, citing McHugh J in Mann v O’Neill (1997) 71 ALJR 903, 912:

“the temptation to recognise the availability of the defence for new factual circumstances simply because they are closely analogous to an existing category (or cases within an existing category) without examining the case for recognition in light of the underlying rationale for the defence.”

Darker qualified Taylor only so far as it did not exempt the police from potential liability for serious misconduct (agreed particulars of ten separate allegations of police misconduct are set out at pp 462-3 of the report).  

118.   In the well-known passage of his judgment in Lincoln v Daniels [1962] 1 QB 237, 257, Devlin LJ said of his “third category” of case:

   “The third category is the most difficult of the three to define.  It is based on the authority of Watson v M' Ewan [1905] AC 480 in which the House of Lords held that the privilege attaching to evidence which a witness gave coram judice [in the presence of the judge]extended to the precognition or proof of that evidence taken by a solicitor.  It is immaterial whether the proof is or is not taken in the course of proceedings.  In Beresford v White (1914) 30 TLR 591, the privilege was held to attach to what was said in the course of an interview by a solicitor with a person who might or might not be in a position to be a witness on behalf of his client in contemplated proceedings.”

The facts of Watson v M’Ewan were unusual in that Dr Watson, the defendant to an action for slander, was an eminent medical practitioner who had examined Mrs M’Ewan, but did so on behalf of her husband, and at a time when there were grave differences, and matrimonial litigation, between husband and wife. He had kept private notes about the wife’s condition.  In Beresford v White there was, as Buckley LJ put it, “an interview between the solicitor of the plaintiff and a person who was or who was thought to be in a position to give some evidence in these contemplated proceedings.  It was a professional interview with a person who might be a witness in litigation then in contemplation.”

119.   Devlin LJ made some further observations about Watson v M'Ewan (at p 261):

   “It is a question of how far the principle in Watson v M'Ewan is to be taken. The other authorities in which the case has been considered show that the connection between the two things - the evidence and the precognition, the document and the draft, the actuality that is undeniably privileged and the foreshadowing of it - must be reasonably close.”

In this case, as the Recorder observed (paragraph 19), what Mr Mill said in open court was the “actuality” and was undoubtedly covered by absolute privilege.  The “foreshadowing” took place at a time when Mr Mill was imminently contemplating and intending to make use of the documents about the Tai Po land in his cross-examination of Gilbert Leung in an hour or two. Here the Recorder seems to have assumed that “the connection” referred to by Devlin LJ was solely or mainly a matter of chronology (see especially paragraph 29 of his judgment).  It is much more likely, I think, that Devlin LJ was thinking of a connection of subject-matter.  It would often be down to the vagaries of court listing how much time might elapse between the preparation of a witness statement or proof of evidence and the eventual appearance of the witness in court.

120.   I think that the Recorder may also have been influenced by doubt as to whether the Defendant was in any meaningful sense part of Tony Chan’s legal team.  The Recorder began (paragraph 2) by referring to this as a disputed question. I have already referred to his findings in paragraph 18(2) but should add that a footnote to paragraph 18 of the judgment is in these terms,

“In the Defence Written Opening, the defendant was described as ‘a member of Tony Chan’s legal team for the Probate Action’ either as a paralegal of Haldanes or as an assistant, student or mini-pupil of John McDonnell QC.  In the course of oral opening, counsel for the defendant clarified that he would just be relying on the second limb: assistant, student or mini-pupil of John McDonnell QC. Whereas, the plaintiff would describe her as a representative of Siu.”

The Defendant herself, in paragraph 3(i) of her Re-re-amended Defence, stated that after an unspecified date (that must have been in the early months of 2009) she “acted as middleman between Tony Chan’s legal team and Dr Siu in respect of his proposal” regarding the document and land searches mentioned in her pleading.

121.   I agree with the Court of Appeal that the Recorder was in error in treating the Defendant’s conversation with Mr Midgley and Mr Mill as covered by absolute privilege.  To do so would not be a small adjustment of boundaries, but a large extension whose boundaries would be by no means clear.  It was not pure coincidence that the Defendant did not give evidence.  The document which she obtained from Dr Siu was only to be used to test Gilbert Leung’s credit.  Even if she had been a potential witness there is every reason to think that she would have declined to give evidence, in order to avoid being asked to identify Dr Siu.  She was not even an informer, merely a middleman for an informer.  That is precisely how Kwan JA saw the matter (paragraph 112).

Innuendo

122.   “Innuendo” is a term of art referring to the need to plead and prove particular facts which have the effect of making defamatory written or spoken words which are not defamatory in their natural and ordinary meaning.  The need to do so is spelled out in O.82, r.3 of the High Court Rules, and also in general terms in O.18, r.8.  The general importance of compliance with these requirements as to pleadings was made clear by Ma CJHC (as he then was) in Wing Hang Bank Ltd v Crystal Jet International Ltd [2005] 2 HKLRD 795,799, approving the note at paragraph 18/12/1 of the White Book.  This general warning is particularly important in connection with the pleading of a true innuendo, since it is a separate cause of action.

123.   The function of pleading an innuendo is not simply to give a general indication of why the plaintiff regards the written or spoken words as defamatory.  It is much more specific.  It is to plead facts, and moreover facts which were known, at the time of publication, to the audience to whom the publication was addressed. This is made clear in the learned judgment of Holroyd Pearce LJ in Grubb v Bristol United Press Ltd. [1963] 1 QB 309, 326-7.  After a full review of the origin and development of the doctrine, the Lord Justice said:

“In my judgment, the strong body of authority which has been cited leads to the conclusion that any innuendo (that is, any allegation that the words were used in a defamatory sense other than their ordinary meaning) cannot rely on a mere interpretation of the words of the libel itself but must be supported by extrinsic facts or matters. Thus, there is one cause of action for the libel itself, based on whatever imputations or implications can reasonably be derived from the words themselves, and there is another different cause of action, namely, the innuendo, based not merely on the libel itself but on an extended meaning created by a conjunction of the words with something outside them. The latter cause of action cannot come into existence unless there is some extrinsic fact to create the extended meaning. This view is simple and accords with common sense.”

The rule is just the same for slander.

124.   The Recorder, having decided that the Defendant was entitled to absolute immunity, did not strictly have to decide the questions that arose in the absence of such immunity.   But he did at the request of Mr Yu (see paragraph 37 of his judgment) deal with all the other main issues in the case, including the issue of the pleading of the innuendos which formed an essential part of the plaintiff’s case.  This issue is dealt with in detail at paragraphs 54 to 77 of his judgment.

125.   In paragraph 56 the Recorder correctly pointed out that the amended pleading failed to identify facts known to the persons to whom the alleged slander was uttered. Instead it referred to a general public perception.  Moreover (paragraph 57) some of the relevant incidents occurred after the publication to Mr Midgley and Mr Mill.  When this was pointed out there was a further unopposed application for amendment, but as the Recorder observed, it only served to obfuscate rather than to elucidate the position.  He rightly rejected, as wholly misconceived, the argument that the words uttered were defamatory in their ordinary and natural meaning (paragraphs 66 to 68).

126.   The Recorder then considered the innuendo meanings in the new paragraph 8A.  He rightly characterized the first subparagraph, (a), as essentially concerned with the concept of betrayal, and the second, (b), as essentially concerned with the lack of merit in Tony Chan’s claim in the probate action (he rightly commented that the words “secretly and covertly” added nothing).  Neither of these assertions stood up in relation to the state of knowledge of Mr Midgley or Mr Mill as at 21 May 2009. They did not know of any friendship between the Plaintiff and Gilbert Leung, or of any loyalty owed to Gilbert Leung by the Plaintiff.  As respectable and highly qualified lawyers acting for Tony Chan in the ongoing probate action, there was no reason to suppose that they knew or believed that his case was unmeritorious. The third subparagraph, (c), was dependant on the two earlier subparagraphs, and fell with them.

127.   In the Court of Appeal Yuen JA took the same view as the Recorder, dealing with the issue more fully (paragraphs 9 to 26).  She pointed out that in the Court of Appeal Mr Price QC had tried to broaden the scope of paragraph 8A(c) of the pleading by reference to knowledge pleaded in paragraph 7, which was not incorporated into paragraph 8A(c).  This was not, she said, pure pedantry (paragraph 25.2): “It is essential in a complex area of the law such as defamation where all parties and the tribunal have to be acutely aware of the exact case(s) being advanced and for which adjudication is sought”.

128.   However Kwan JA and Macrae JA took a different view.  Kwan JA said that an appeal court will not lightly interfere with a judge’s finding of fact as to the meaning of words, and that the judge was not plainly wrong about paragraph 8A (a) of the pleading. But in relation to paragraph 8A (b) she said that she agreed with Mr Price that the Recorder had made several errors of law (paragraphs 140-145).  I confess that I find it difficult to follow her summary of those alleged errors.  In particular, in paragraphs 149-150 she seems to have ignored the importance of “an extended meaning created by a conjunction of the words with something outside them” (Grubb v Bristol United Press, above) known to Mr Midgley and Mr Mill. She also seems to have overlooked or disregarded the fact that some of the content of the “Particulars of facts and matters in support of innuendo” relates to events or perceptions occurring or formed after that date. She does not explain why, in the context of hotly-contested litigation, the word “unmeritorious” should be taken to mean “unworthy” rather than “legally unsustainable”. However this point is ultimately irrelevant because both Kwan JA (paragraph 146) and Macrae JA (paragraph 219) thought that innuendo meaning 8A (b) was not defamatory.

129.   The slander claim ultimately depends, therefore, on paragraph 8A(c), which the Recorder had regarded as ancillary to the other two claims, and as falling with them if they failed.  Kwan JA (paragraph 152) and Macrae JA (paragraph 225) seem to have reached the conclusion that that paragraph on its own was defamatory.  But their stated reasons seem to be resurrecting paragraph 8A(b), which they held not to be defamatory.  I prefer the more straightforward approach of the Recorder and Yuen JA.  In my view the slander claim fails in its entirety. 

Malicious falsehood and republication

130.   If the slander claims are out of the way, the Plaintiff’s last resort is the claim based on malicious falsehood.  Section 24(1) of the Defamation Ordinance (Cap.21) provides,

“In an action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage –

(a)  if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form; or

(b)  if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication.”

131.   This claim raises a number of different points, some rather technical, especially in connection with republication on an absolutely privileged occasion.  It may be helpful to reiterate (in a little more detail) the views of the Courts below.  The Recorder dealt with malicious falsehood at paragraphs 79 to 89 of his judgment, but only on the assumption that his main conclusion (treating the Defendant as herself entitled to absolute privilege) was wrong. On that assumption he held that the natural meaning of the Defendant’s words was that she had obtained the document from the Plaintiff, and that that statement was, as she well knew, false.  It was therefore malicious in the relevant sense. He then referred to section 24 of the Defamation Ordinance and held that neither limb applied to the original publication to Mr Midgley and Mr Mill.

132.   The Recorder then addressed the republication of the Defendant’s words in open court, which is expressly pleaded and relied on in paragraph 11 of the Re-amended Statement of Claim. He assumed that the same test of liability for republication (apart from the issue of absolute privilege) applies for the purposes of malicious falsehood as for those of defamation. (The principles applicable in defamation cases are stated in Slipper v BBC [1991] 1 QB 283, McManus v Beckham [2002] 1 WLR 2982 and Baturina v Times Newspapers Ltd [2011] 1 WLR 1526).  I agree with that assumption, since the test of reasonable foreseeability (including cases of actual authority for, or intention of, republication) is a straightforward test, and the facts of this case are clear. Rapid republication was intended and was virtually inevitable. 

133.   The Recorder then referred to one Australian case, Belbin v McLean [2004] QCA 181, and one American case, Watt v McKelvie (1978) 248 SE 2d 826, which raise the issue posed by the third certified question – which might be termed the issue of transferred (or contagious) absolute privilege, that is whether the absolute privilege protecting republication by counsel in open court protects not only counsel making the republication, but also the originator of the republished material, when the original publication was not covered by absolute privilege. The Recorder decided to follow these cases, stating (paragraph 88) that “the Defendant had participated in the republication in open court”. It is not clear in what sense she had participated in it. She had certainly authorised it, but she was not in court (or even in Hong Kong) at the time of its republication.

134.   In the Court of Appeal Kwan JA agreed (paragraph 180) that the Defendant should not be liable for the loss arising from the republication.  She referred to the Recorder’s decision but it is not clear whether she took exactly the same view.  Macrae JA also agreed with this conclusion (paragraphs 237 to 241). He referred to, and agreed with, Belbin v McLean and Watt v McKelvie.

135.   Yuen JA took a different view of the innuendo meanings, holding (correctly, in my opinion) that none of them had been established on the Plaintiff’s much-amended pleadings (paragraphs 18 to 26). She then discussed malicious falsehood, including the issue that I have termed transferred (or contagious) absolute privilege (paragraphs 27 to 56). Her reasoning is developed at length, but the crucial point is at paragraph 39:

“As discussed above, the juridical basis is that the plaintiff is not making the defendant (or the republisher) liable for the republication, but only the defendant liable for the original publication – where he has, by his intentional acts, engendered consequential but reasonably foreseeable losses. Therefore there is no reason why the defendant should be entitled to shelter behind the defence available to the republisher, because the plaintiff is not asserting a cause of action against the republisher at all, but only against the original publisher.” 

Yuen JA did not quantify the “consequential but reasonably foreseeable losses” engendered by the Defendant’s telephone call to Mr Midgley and Mr Mill, presumably because she was by then aware that the majority of the Court took a different view on the innuendo issue.

136.   This survey of the judgments below indicates the variety of views that have been expressed. If (as I would hold) the innuendo points pleaded by the Plaintiff all fall away, malicious falsehood is the Plaintiff’s last resort, and attention must focus on section 24 of the Defamation Ordinance, quoted in paragraph 30 above.  It was added to the Ordinance in 1961, and is in the same terms as section 3 of the Defamation Act 1952 of the United Kingdom. It makes an important change in the law in favour of plaintiffs, but only in the two cases specified in subsection (1): in other cases special damage must be pleaded and proved, since at common law special damage is essential to the cause of action: see Ratcliffe v Evans [1892] 2 QB 524, 532, and the other cases cited in Halsbury’s Laws of Hong Kong (2^nd ed.) vol 47, para 380.658, fn 1.  In section 24 (1) (b) the phrase “calculated to cause pecuniary damage” has been interpreted as meaning likely or probable in an objective sense, rather than a mere possibility (IBM v Web-Sphere Ltd [2004] FSR 39).

137.   The Plaintiff is described in his Statement of Claim as ‘a successful businessman and property developer who is well known in the securities industry’.  The Defendant’s oral statement by telephone was made to two litigation lawyers, Mr Midgley and Mr Mill, who appear never to have heard of the Plaintiff before.  At any rate there is no suggestion that either of them had, or was likely to have, any sort of business dealings with him.  That disclosure could not therefore give rise to any special damage. The Defendant can be liable for special damage to the Plaintiff only if (i) she is concurrently responsible for Mr Mill’s subsequent disclosure of the Plaintiff’s name in open court; and (ii) that disclosure fell within section 24(1) (b) of the Defamation Ordinance or special damage has been pleaded and proved; and (iii) she does not as to the measure of damages for that subsequent disclosure, enjoy the same absolute privilege as Mr Mill.

138.   The Plaintiff has no difficulty, in my view, in surmounting the first of these hurdles. But the second causes obvious difficulty.  The naming of the Plaintiff by Mr Mill in open court, and any fair reporting of his words by the press, would have conveyed nothing “calculated to cause pecuniary damage to the plaintiff” in his business. Innuendo as such does not form part of the law of malicious falsehood, but the reasoning which leads to the rejection of the innuendo meanings, on the issue of slander, leads to the same conclusion in relation to malicious falsehood.  All the Defendant did, as the Recorder found, was to name the Plaintiff, falsely, as the individual who had produced a particular document that was put to a witness in cross-examination.  The special damages claimed in paragraph 11 of the Re-amended Statement of Claim are all premised on the innuendo meanings which we have rejected.

139.   In these circumstances it is not necessary for us to deal with the third point at paragraph 137 above, and although it is the subject of the third certified question I think it is better not to express any view on it. The point is one of considerable importance, and the facts of the present case are very unusual, and probably not typical of other cases in which the issue might arise. The case of Watt v McKelvie is not clear in its reasoning, and involved a departure from the law of Virginia as stated in the relevant Restatement. Belbin v McLean is clearer, but arguably depends on the correct construction of a statutory (as opposed to common law) privilege.

140.   I would allow the Defendant’s appeal in full and make an order nisi that the Defendant should have 50% of her costs of the action down to the end of the proceedings before the Recorder (so restoring his Order of 28 January 2016) and all her costs of the appeals to the Court of Appeal and to this Court.  The order nisi will become absolute unless an application to vary the order is made within 14 days.

Mr Justice Ribeiro PJ:

141.   The Court unanimously allows the appeal of Esther Chan Pui Kwan, the appellant in FACV 2 of 2018, and dismisses the appeal of Chang Wa Shan, the appellant in FACV 3 of 2018.  We unanimously make an order nisi that Esther Chan Pui Kwan should have 50% of her costs of the action down to the end of the proceedings before the Recorder (so restoring his Order of 28 January 2016) and all her costs of the appeals to the Court of Appeal and to this Court.  The parties are at liberty to lodge written submissions on costs within 14 days of the handing down of this judgment and to lodge submissions in reply within 14 days thereafter.  In default of the lodging of such submissions, the order nisi shall stand as an order absolute without further direction.