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

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Press Summary (Chinese)

FACV No. 13 of 2017

[2018] HKCFA 11

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 13 OF 2017 (CIVIL)

(ON APPEAL FROM CACV NO. 252 OF 2015)

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J U D G M E N T

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Chief Justice Ma:

1.  I agree with the judgment of Lord Reed NPJ and with the orders contained therein.

Mr Justice Tang PJ:

2.  I agree with the judgment of Lord Reed NPJ.

Mr Justice Fok PJ:

3.  I agree with the judgment of Lord Reed NPJ.

Mr Justice Chan NPJ:

4.  I agree with the judgment of Lord Reed NPJ.

Lord Reed NPJ:

5.  This appeal is concerned with the concept of malice, as it is understood in the law of defamation in the context of qualified privilege.

6.  It is unnecessary to consider the facts of the case in detail, but some account of the background is necessary in order to explain the context in which the issues arise. The first and second plaintiffs were at the material time in their final year as pupils at a school in Hong Kong. The third plaintiff, who is their father, was a member of the school’s board of governors. The defendants were the parents of another pupil in her final year at the school. In late November 2011, rumours were circulating among pupils at the school and their parents to the effect that the first and second plaintiffs were suspected of having cheated in a school test earlier that month, and in the case of the first plaintiff in another school test the previous month, but had got away with it because their father was a member of the board of governors. The rumours gave rise to emails and conversations during early December 2011 between a number of parents of children at the school, including the defendants, and between the parents and the school management. Meetings also took place between a number of parents and the school management, including a meeting attended by the defendants and an interview of some pupils in the presence of their parents. In the end, the school management decided that there was no basis for taking any disciplinary action against the first and second plaintiffs. Some parents, including the defendants, were dissatisfied with the school’s decision and with how it handled the matter.

7.  The plaintiffs then commenced the present proceedings, suing the defendants for defamation arising from their publication of five emails and a summary prepared for one of the meetings, on the basis that these communications were to be understood as meaning that the first and second plaintiffs had repeatedly cheated in school examinations, and that their father had dishonestly and improperly intervened to cover up the cheating by abusing his position as a member of the board of governors. The defendants admitted that they were the publishers of the emails and the summary, but denied that they were defamatory. Alternatively, they relied on the defence of qualified privilege. In reply, the plaintiffs pleaded malice.

8.  Following an 18-day trial before To J and a jury, verdicts were returned finding that all six communications were defamatory and that four of the six had been published maliciously: that is to say, (1) an email sent by the second defendant to the head of secondary at the school, and copied to the chair of the school’s parent-teacher association, on 4 December 2011, (2) an email sent by the second defendant to another parent on 6 December 2011, (3) the summary prepared by the second defendant for a meeting between parents and members of the school management on 8 December 2011, and (4) an email sent by the second defendant to the school principal, and copied to a number of other parents, on 16 December 2011. The jury awarded damages totalling $230,000.

9.  In relation to the two communications which they found not to have been published maliciously, the jury also returned special verdicts on questions of fact set out in a questionnaire. Some of the special verdicts were concerned specifically with the two communications in question, or with the second defendant’s state of mind at the time when she sent them, but they also included findings (1) that a named pupil had observed what she described as suspicious behaviour on the part of the first plaintiff during the test in October 2011, (2) that four named pupils had observed certain suspicious behaviour of the first and second plaintiffs at the test in November 2011 as described by three of them in the taped transcript of a meeting, (3) that as of 29 November 2011 there were a lot of rumours circulating amongst the students of the school that the first plaintiff was suspected of having cheated in a test but he got away with it because his father was a member of the board of governors of the school, and (4) that such rumours also reached many parents, including the second defendant and four other named parents.

10.  The Judge then decided, on the basis of written submissions, whether the two communications found not to have been published maliciously were published on privileged occasions. He concluded that they were. The issue of qualified privilege was thus decided after the jury had already returned verdicts on the issue of malice. It will be necessary to return to that aspect of the procedure. The judge also made an order in relation to the costs of the trial, ordering that the defendants should pay 60% of the plaintiffs’ costs, other than the costs of the submissions on qualified privilege, and that the plaintiffs should pay the defendants’ costs in relation to that issue.

11.  Both parties appealed. The plaintiffs sought to set aside the Judge’s decision on qualified privilege, and his order as to costs. That appeal, CACV 251/2015, dealt only with the two communications which were found not to have been published maliciously. The defendants appealed against the jury’s verdicts that the four communications mentioned in para 8 above had been published maliciously. That was appeal CACV 252/2015. Dismissing the plaintiffs’ appeal, the Court of Appeal (Lam VP, Kwan and Poon JJA) upheld the Judge’s decision on qualified privilege. Allowing the defendants’ appeal, it held that the Judge had misdirected the jury on the issue of malice, and that the verdicts on that issue must be set aside. It further held that the four communications in question had been published on occasions of qualified privilege, and that there was no evidence on which a properly directed jury could make a finding of malice. In these circumstances, rather than remitting the case for retrial, it ordered that the plaintiffs’ claims should be dismissed. The plaintiffs sought leave to appeal to this court only in respect of the outcome of appeal CACV 252/2015. There was no appeal against the outcome of appeal CACV 251/2015.

12.  The plaintiffs were granted leave to appeal to this Court on two questions:

(1) What is the proper legal approach to the issue of malice to defeat a defence of qualified privilege, with particular emphasis on the treatment of the mental state or belief on the part of the party who has allegedly made the defamatory statement?

(2) In the event that the Court of Appeal was right to hold that the summing up in the Court of First Instance was in error, should a retrial have been ordered?

Qualified privilege

13.  The logical starting point in considering malice is the concept of qualified privilege. Privilege is a defence to an action in defamation. In its application to defamatory statements of fact (it is unnecessary in this appeal to consider its application to fair comment on matters of public interest), it attaches to occasions when the law recognises a need for frank and uninhibited communication which outweighs the need to protect reputation. Sometimes the need for uninhibited expression is of such a high order that the occasion attracts absolute privilege: that is to say, the defence to an action in defamation admits of no exceptions or qualifications. More usually, the privilege is qualified, in that it can be defeated if the plaintiff proves that the defendant was actuated by malice.

14.  Many common situations are privileged. There is no closed list of categories. The underlying principle was explained by Lord Atkinson in Adam v Ward [1917] AC 309, 334:

“… a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes the communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it.”

Occasions of this kind have traditionally been described in terms of persons having a duty to perform or an interest to protect in making the communication in question. In determining whether, applying that principle, an occasion is privileged, the court has regard to all the circumstances. As Lord Nicholls of Birkenhead observed in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 195, the circumstances must be viewed with today’s eyes: “the circumstances in which the public interest requires a communication to be protected in the absence of malice depend upon current social conditions”.

Malice

15.  As has often been remarked, “malice”, otherwise known as “express malice” or “malice in fact” (to distinguish it from “malice in law”, regarded as implicit in the intentional publication of a defamatory statement without lawful excuse), is an unfortunate expression. It is an ordinary word, but is used in the law of defamation as a term of art, with a technical meaning which is different from that which it bears in ordinary usage. Indeed, it has different technical meanings depending on which facet of the law of defamation one is dealing with. It is, for those reasons, an expression which it is preferable to avoid using before juries, as it is liable to lead to confusion.

16.  Its meaning in the context of qualified privilege is straightforward. It was succinctly explained by Lord Nicholls of Birkenhead NPJ (with whose judgment the other members of the Court agreed) in Cheng & Another v Tse Wai Chun (2000) 3 HKCFAR 339, 355:

“Express malice is to be equated with use of a privileged occasion for some purpose other than that for which the privilege is accorded by the law.”

That is consistent with Lord Diplock’s analysis in Horrocks v Lowe [1975] AC 135, 149, described in Reynolds at p 194 as “the classic exposition of malice in this context”:

“For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit – the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.”

That has been the approach of the law for well over a century. In Clark v Molyneux (1877) 3 QBD 237, Brett LJ stated at p 246:

“If the occasion is privileged it is so for some reason, and the defendant is only entitled to the protection of the privilege if he uses the occasion for that reason.”

Similarly, in Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431, 454, Lopes LJ stated:

“The defendant is only entitled to the protection of the privilege if he uses the occasion in accordance with the purpose for which the occasion arose.”

17.  In order to decide whether a communication was published maliciously, for the purpose of rebutting a defence of qualified privilege, it is therefore necessary to decide two questions, which arise sequentially. First, was the occasion privileged, and if so, for what purpose? Secondly, was that the defendant’s purpose when he published the communication in question? The first of these is a question of law for the judge. The second is a question of fact, to be determined by the jury, where the action is tried with a jury. It is important to keep these basic principles clearly in view. Much confusion can be generated if they are lost sight of.

18.  The motive with which the defendant made the communication in question is therefore of crucial importance: see Horrocks v Lowe at p 149. A person may have more than one reason, motive, or purpose (the terms can in this context be used interchangeably) for making a communication. The critical question is whether the dominant purpose for which he made the communication was one other than the purpose for which the occasion was privileged. As Lord Diplock stated in Horrocks v Lowe at p 149, “he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved”. In practice, as Lord Diplock also said at p 149, the plaintiff generally sets out to prove that a desire to injure him was the defendant’s dominant motive. But Lord Diplock went on to explain that “qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person’s conduct and welcomed the opportunity of exposing it” (p 151). Accordingly, in a case where a person has published what he believes to be true, “it is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives … that ‘express malice’ can properly be found” (ibid).

19.  How, then, is the jury to go about deciding what was the defendant’s dominant purpose in publishing the communication complained of? As Lord Diplock stated in Horrocks v Lowe at p 149, “the motive with which a person published defamatory matter can only be inferred from what he did or said or knew”. The jury therefore have to consider all the evidence from which such an inference might be drawn, and decide what inference as to the defendant’s dominant purpose should properly be drawn from it. Such evidence will include, crucially, the circumstances surrounding the making of the relevant communication. As Jordan CJ said in Mowlds v Fergusson (1939) 40 SR (NSW) 311, 319:

“In order to make a proper approach to the question whether there was any evidence that the defendant was animated by ‘express malice’ in making his first report, it is necessary to have a correct understanding of the circumstances in which the report came to be made, and the purposes for which it was asked and presented.”

20.  Issues concerning the defendant’s state of mind in relation to the truth or falsity of what is communicated have sometimes caused particular difficulty in practice. In relation to such issues, it is important in the first place to understand that evidence bearing on the defendant’s knowledge or belief as to the truth or falsity of what is communicated is only relevant in so far as it affects the jury’s answer to the critical question which it has to decide, namely whether the defendant used the occasion for a purpose other than that for which the privilege was accorded.

21.  It is also necessary to understand that a particular conclusion on malice does not automatically follow in every case from the jury’s view of the defendant’s knowledge or belief as to the truth or falsity of what is communicated. Even a defendant who knows or believes that the matter communicated is false will nevertheless be protected by privilege in circumstances where the purpose for which the privilege exists is consistent with the communication of a matter which is known or believed to be false, and the matter is communicated for that purpose. As Lord Diplock noted in Horrocks v Lowe at p 150, even telling deliberate and injurious falsehoods can be justified in cases where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person. Equally, a defendant who believes that the matter is true will not be protected by privilege if he communicates it for a purpose other than that for which the privilege was accorded. The critical question for the jury is always whether the dominant purpose for which the communication was made was the same as the purpose for which the privilege was accorded. The defendant’s knowledge or belief as to the truth or falsity of the matter communicated is significant only in so far as it is evidence from which an inference can be drawn as to the answer to that question. As stated earlier, it is important to consider all the evidence surrounding the making of the statement in question.

22.  Where the purpose for which the privilege is accorded is consistent only with the communication of a matter which is believed to be true, as is usually but not invariably the case, the defendant’s knowledge that the matter was false at the time when he communicated it, or his recklessness as to whether it was true or false, will generally be conclusive evidence that he did not make the communication for a proper purpose: normally, that is the only inference which can reasonably be drawn. “Recklessness”, in this context, is to be understood in the sense described by Lord Diplock in Horrocks v Lowe: that is to say, “without considering or caring whether it be true or not” (p 150; see also pp 151, 152 and 153). It will be necessary to return to the meaning of recklessness when considering the Judge’s directions and the way in which the Court of Appeal resolved the defendants’ appeal.

23.  Whether the defendant was reckless, in that sense, is again a matter of inference from the circumstances. The relevant circumstances can include not only what the defendant said or did, but also what he did not do. This point was made by Gleeson CJ in the Australian case of Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, para 15:

“It may be, for example, that if a person publishes an allegation of serious impropriety or unfitness about another, in circumstances where community standards would recognise a moral obligation to make an attempt to ascertain the truth beforehand, and the person has no idea whether the allegation is true or false, it is open to conclude that the person is recklessly indifferent to the truth or falsity of the allegation, within the meaning of what was said in Horrocks v Lowe. That is a question of fact.”

24.  In cases where the purpose for which the privilege is accorded is consistent only with the communication of a matter which is believed to be true, the parties may therefore focus on the question whether the defendant knew of the matter’s falsity, or did not care whether it was true or false. The judge may find it helpful to do likewise when explaining to the jury how the general test of malice set out above falls to be applied in the circumstances of the case before them. It should however be borne in mind that knowledge of falsity, or indifference as to truth or falsity, is not itself the test of malice: it is merely evidence from which an improper motive can often, but not always, be inferred.

25.  There should not normally be any need to direct the jury about subtler distinctions between different states of mind. As Lord Nicholls NPJ commented in Cheng at p 354, “the law of defamation is, in all conscience, sufficiently complex, even tortuous, without introducing further subtle distinctions which will be hard to explain to a jury”. Neither the judge nor the jury should lose sight of the critical question: was the dominant purpose which actuated the defendant to make the communication in question one for which the privilege was accorded?

26.  It is important to bear in mind that, since the critical issue in relation to malice is the defendant’s motive in making the communication in question, and “the motive with which a person made a defamatory communication can only be ascertained from an examination of the state of his mind” (Fraser v Mirza 1993 SC (HL) 27, 33), the communication has to be understood in this context as the defendant meant it to be understood. In particular, if he intended the communication to bear a particular meaning which was not defamatory of the plaintiff, then his purpose in making it cannot be assessed on the basis that he intended it to bear a different, defamatory meaning, even if the latter is the meaning which the jury consider that, objectively, the communication bore. In short, malice is “a subjective test, entirely dependent on the defendant’s state of mind and intention” (Loveless v Earl [1999] EMLR 530, 538). 

27.  A number of other matters were emphasised by Lord Diplock in Horrocks v Lowe which may be relevant in particular cases, depending on the circumstances. First, where the plaintiff’s case is put on recklessness, “indifference to the truth of what he [the defendant] publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true” (p 150). Even those who act carelessly, impulsively or irrationally are afforded immunity from suit “if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest” (ibid). As Lord Diplock stated, apart from cases where the purpose of the privilege is consistent with the reporting of allegations which are not believed to be true, what is required on the part of the defamer is “positive belief in the truth of what he published or, as it is generally though tautologously termed, ‘honest belief’” (ibid).

28.  Lord Diplock went on to explain:

“In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be ‘honest’, that is, a positive belief that the conclusions they have reached are true. The law demands no more.” (ibid)

This important point was emphasised repeatedly in Lord Diplock’s speech. At page 152, for example, he explained that prejudice, however gross and unreasoning it may be, does not destroy the privilege unless it has had the result of rendering the defendant indifferent to the truth or falsity of what was stated:

“If what it does is to cause the defendant honestly to believe what a more rational or impartial person would reject or doubt he does not thereby lose the protection of the privilege.”

29.  Secondly, “judges and juries should … be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity” (p 150). Furthermore, “juries should be instructed and judges should remind themselves that this burden of affirmative proof is not one that is lightly satisfied” (p 151).

30.  Thirdly, Lord Diplock explained that where the communication includes defamatory material going beyond what was necessary for the purpose for which the privilege was accorded, that material should not be treated as ipso facto falling outside the scope of the protection. Rather, the question remains whether the defendant misused the privileged occasion for an improper purpose. The answer to that question depends on the defendant’s state of mind, not on the objective relevance of the material:

“As Lord Dunedin pointed out in Adam v Ward [1917] AC 309, 326-327 the proper rule as respects irrelevant defamatory matter incorporated in a statement made on a privileged occasion is to treat it as one of the factors to be taken into consideration in deciding whether, in all the circumstances, an inference that the defendant was actuated by express malice can properly be drawn. As regards irrelevant matter the test is not whether it is logically relevant but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, though believing it to be true, realised that it had nothing to do with the particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive. Here, too, judges and juries should be slow to draw this inference.” (p 151)

The procedure which should be followed

31.  As has been explained, in order to determine whether a communication was published maliciously, for the purpose of rebutting a defence of qualified privilege, it is necessary to decide, first, whether the occasion on which the communication took place was privileged, and if so, for what purpose, and secondly, whether that was the defendant’s purpose when he published the communication in question. The first of these is a question of law, to be decided by the judge, and the second is a question of fact, to be decided by the jury, in a case which is tried with a jury.

32.  It follows that the question whether the occasion was privileged, and if so, the identification of the purpose for which the privilege was accorded, must be decided by the judge before a jury can be asked to decide the issue of malice. As Lord Dunedin said in Minter v Priest [1930] AC 558, 572:

“Now, whether an occasion is privileged or not is for the judge to decide, and not for the jury, and the question of express malice, as it has been called, which destroys the privilege, if it is qualified privilege, ought only to be put to the jury after the judge has ruled whether the occasion is privileged or not.”

33.  Where the facts on which the existence of qualified privilege depends are not in dispute, it can be tried as a preliminary issue. It was said in Loutchansky v Times Newspapers Ltd (No 2) [2001] EWCA Civ 1805; [2002] QB 783, para 41, in the context of fair comment, that qualified privilege “ordinarily falls to be judged as a preliminary issue”. That should however be understood in the light of the observations subsequently made in a similar case, Macintyre v Chief Constable of Kent [2002] EWCA Civ 1087; [2003] EMLR 9, paras 35-36:

“… a judge may generally decide it wise to direct a preliminary issue on qualified privilege in such a case, on the basis that an appeal is not particularly likely and a decision in favour of the defendants would avert a long trial on justification.

But the judge must also bear in mind that the claimant has brought the case to vindicate his reputation, and it may well be unfair to delay the ultimate trial while a preliminary issue is fought over, perhaps all the way to the House of Lords.”

34.  The judge’s decision whether the occasion was privileged may, however, depend on controversial questions of fact. Where that is the position, the relevant facts must be found by the jury: Reynolds at p 205. As Lord Bingham of Cornhill CJ, delivering the judgment of the Court of Appeal, stated in Reynolds at p 178:

“It is well settled that the question whether the occasion of publication is protected by qualified privilege is a question of law to be decided by the judge, but before he can reach that decision it may be necessary for the jury to make findings on any issues of fact in dispute upon which the answer to the question depends.”

That approach, which reflected the law as stated by Lord Esher MR in Hebditch v MacIlwaine [1894] 2 QB 54, 58, Lord Finlay LC in Adam v Ward [1917] AC 309, 318, and Lord Dunedin in Minter v Priest at p 572, was endorsed in the House of Lords: see, in particular, the speech of Lord Nicholls, with whom Lord Cooke of Thorndon and Lord Hobhouse of Woodborough agreed, at p 205, Lord Steyn at pp 215-216, and Lord Hope of Craighead at p 236. As Lord Nicholls stated, “any disputes of primary fact will be a matter for the jury” (ibid). Primary facts, in this context, comprise the events which occurred, and what was said and done, as distinct from the inferences or conclusions to be drawn from those primary facts.

35.  It follows that, where the judge’s ruling on the question whether the occasion was privileged is dependent on the resolution of disputed questions of fact, those questions should be put to the jury so that it can return special verdicts. Such questions should however be kept by the judge to the minimum necessary, and should be as clearly expressed as possible. What has been described as “an examination paper” (Loutchansky v Times Newspapers Ltd (No 4) [2001] EMLR 38, para 35) may complicate matters unnecessarily for the jury, and may result in confused and inconsistent answers.

36.  This was a danger in the present case, where the jury were presented with an 11-page questionnaire, agreed between the parties, covering not only the facts relevant to the question whether the occasions were privileged, but also, where the jury found that the communication was not published maliciously, facts relevant to the purposes for which the defendants used those occasions. The result was that findings might be made which rendered the jury’s verdict on the issue of malice inconsistent with the Judge’s subsequent ruling on the purposes for which the occasions were privileged.

The directions which should be given to the jury

37.  In the light of this discussion, some guidance can be given as to the directions which should be given to a jury in a case where malice is alleged in answer to a defence of qualified privilege, at the stage when they have to return a verdict on the issue of malice. The essential guidance was given by Lord Nicholls NPJ in the case of Cheng at p 361:

“Regarding qualified privilege, juries can be directed that the defence is defeated by proof that the defendant used the occasion for some purpose other than that for which the occasion was privileged. This direction can be elaborated in a manner appropriate to the facts and issues in the case.”

38.  The starting point is therefore to explain to the jury that the occasion of the communication was protected by qualified privilege, to explain what that means, and to explain the purpose or purposes for which the privilege was accorded on the occasion of the publication in question. It is then necessary to explain that the privilege does not protect the defendant if the occasion was used to communicate the defamatory material for some other purpose. It should be explained that, if the defendant had more than one purpose in communicating the defamatory material, the protection is not lost unless the dominant purpose was an improper one.

39.  The way in which those fundamental directions require to be elaborated will depend on the circumstances of the particular case and the issues arising. If the plaintiff’s contention is that the occasion was used for a particular improper purpose, the jury should be reminded of that contention. Where the purpose for which the privilege is accorded is consistent only with the communication of information which is believed to be true, the jury will need to be directed as to the significance of the defendant’s knowledge or recklessness as to the falsity of the information, depending on how the plaintiff’s case is put, and reminded of the evidence bearing on those issues. The jury should also be directed that the burden of proof rests on the plaintiff. Given the strength of the public interest in the protection of free speech on privileged occasions, it also needs to be made clear to the jury that the burden is not easily or lightly satisfied.

40.  It is important to avoid unnecessary complication, and when directing on the law to keep to the basic principles, explained as simply as possible in the circumstances, in order to assist the jury in deciding the real issue in dispute in the case before them. As Lord Justice-Clerk Thomson observed in McPhelim v H M Advocate 1960 JC 17, 21:

“If a charge is to be a good charge, it ought to be one addressed to the fifteen people in the jury-box, and not to the Court of Appeal. A charge, which meticulously covers every theoretical aspect, may be so complicated that the jury's capacity to appreciate what it is being told may be blunted long before the real matters with which it has to deal are reached.”

The Judge’s directions

41.  In the present case, the jury were asked to return special verdicts on the disputed questions of fact bearing on the existence of qualified privilege at the same time as they returned their verdicts on the issue of malice. As a result, the Judge decided the issue of qualified privilege after the jury had delivered their verdicts on malice. That course of action rendered it impossible for the Judge to explain to the jury, before they returned their verdicts on the issue of malice, whether the relevant occasions were privileged, and if so, the purposes for which the privilege was accorded. In principle, it was therefore equally impossible for the jury to decide whether the purpose for which the occasions were used was some other, improper, purpose. The central issue in relation to malice could not be focused.

42.  In these circumstances, the Judge directed the jury that they had to assume that the offending words were published on occasions of qualified privilege, and informed them that “the occasion of privilege is … whether it is an occasion to bring to the attention of the school the rumour and urge the school or call on the school to do something, to stop the rumour”. But that did not fully or clearly explain to the jury what the purpose was for which the occasions were privileged. It can be compared with the Judge’s subsequent explanation in his judgment of the reasons why the occasions were privileged, summarised by the Court of Appeal as being the protection of the defendants’ interests in:

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

(2) ensuring that the school inculcated and instilled in its students the importance of academic integrity; and

(3) ensuring that the school took a responsible attitude and appropriate actions as regards cheating in examinations or rumours of such behaviour.

43.  The Judge went on to explain the meaning of malice to the jury in these terms:

“In this context, malice means, one, using the privileged occasion to make a statement for some improper motive. So the occasion is intended for you to do a certain thing and you do something else for a purpose which is not proper for that occasion. Or, two, the absence of honest belief that what one publishes was true. So you must understand malice in this sense. So using the privileged occasion to make a statement for some improper motive, or lack of honest belief that what was published was true. So if you don’t believe in what you are saying in the document that you publish, then obviously you are malicious.”

44.  The Judge thus presented the jury with two alternative definitions of malice: the use of the occasion for an improper purpose, or an absence of honest belief in the truth of what was published. As has been explained, these are not alternatives. Only the first is a definition of malice; and, as has been explained, the jury were not in a position to apply it, since they were not (and, in the circumstances, could not be) fully directed as to what the proper purposes were. The second so-called alternative is evidence from which the absence of a proper purpose can be inferred, provided that the purpose for which the privilege is accorded is consistent only with the communication of information which is believed to be true. That was not necessarily the case if the relevant purpose was understood to be the protection of the interests which the Judge subsequently identified, as set out in para 42 above. The purpose of protecting those interests might be consistent with a parent drawing the attention of the school to a rumour even if it was not believed to be true, provided it was nevertheless believed in good faith to threaten the image and reputation of the school, or to require action by the school in accordance with the second or third of those interests. None of these refinements was explained to the jury.

45.  The Judge went on to address the jury on the plaintiffs’ case, which was that the defendants’ dominant motive was to injure them, or alternatively that the defendants did not honestly believe in the truth of the defamatory statements. He endorsed the view that a dominant motive to injure the plaintiffs would be improper (see para 18 above). If that direction had stood alone, it might have saved the situation, notwithstanding the earlier deficiencies, since it would have focused the jury’s minds on an issue which, if they found against the defendants, would indeed have implied that they had acted maliciously. 

46.  But that direction did not stand alone. There remained the alternative case – the “second rung of malice”, as the Judge described it - of a lack of honest belief. In that regard, the Judge directed the jury that “if a defendant uses the privileged occasion to publish something defamatory of the plaintiff which he knows is untrue or which he does not honestly believe to be true, then he clearly steps outside the occasion of privilege”. As explained earlier, that proposition is usually true, but not always; and it might not have been considered true of some, at least, of the occasions with which the jury were concerned.

47.  In addition to the foregoing, the jury received no direction as to the weight of the burden of proof which the plaintiffs had to discharge.

48.  These defects in the directions are substantial. All but the last of them go to the heart of the jury’s task. In the circumstances, the Court of Appeal was right to decide that the verdicts must be set aside.

49.  However, in reaching that conclusion, the Court of Appeal was influenced by the approach to malice adopted in the High Court of Australia by Gaudron, McHugh and Gummow JJ in their joint judgment in Roberts v Bass. It interpreted that judgment as supporting a number of propositions which it treated as accurate statements of the law applicable in Hong Kong. Those included, in particular, the proposition that recklessness as to the truth of a defamatory imputation was sufficient to support a finding of malice only if it amounted to wilful blindness: less serious recklessness, such as indifference to the truth or falsity of the imputation, could support a finding of malice only if presented with some other state of mind, such as gross, unreasoning prejudice, or anger.

50.  It is unnecessary to consider Roberts v Bass in detail. The facts of the case were remote from those of the present case. They concerned the distribution of political material in the course of an Australian election campaign, and the judgments ought perhaps to be seen in that light. The Court was divided on the approach to malice which should be adopted in those circumstances. Kirby J expressed his agreement with the reasons given in the joint judgment of Gaudron, McHugh and Gummow JJ, so as to form a majority of the Court, only so far as they applied to malice at common law in circumstances attracting the protection of the constitutional freedom of political communication. He expressly reserved his opinion as to the position outside such situations: para 185. It is unclear whether the authors of the joint judgment intended to introduce into the general law of defamation a distinction between different kinds of recklessness, or to interpret Lord Diplock’s speech in Horrocks v Lowe as having adopted such a distinction. If they did, I would respectfully decline to adopt that approach so far as the law of Hong Kong is concerned. Lord Diplock’s analysis is clear, and remains authoritative, as Lord Nicholls NPJ described it in Cheng at p 355, in the law of Hong Kong.

Should there be a retrial?

51.  In deciding that there should not be a retrial, the Court of Appeal correctly asked itself whether there was any evidence on which a jury, properly directed, could make a finding of malice on the part of the defendants. It decided that there was not, and on that basis entered judgment for the defendants.

52.  In reaching that conclusion, the Court of Appeal proceeded on the footing that an honest belief in the rumours was conclusive evidence of the absence of malice (para 232), and that reckless indifference to their truth or falsity could not establish malice unless it amounted to wilful blindness or was accompanied by another state of mind such as gross, unreasoning prejudice. In that regard, the Court stated (para 235):

“As we have discussed above, recklessness short of wilful blindness coupled with gross unreasoning prejudice could be evidence of malice if such unreasoning prejudice was so overwhelming that the desire to act to protect the relevant interest plays no significant part in the publication of the offending statements. Whilst we accept that there may be an arguable case on such recklessness and the jury may infer prejudice, we do not find evidence of such overwhelming unreasoning prejudice in view of the genuine concerns over the school process …” (emphasis supplied)

53.  In each of these respects, as it respectfully appears to me, the Court of Appeal was in error. First, it was explained in para 21 above that a defendant who believes that the matter is true will not be protected by privilege if he communicates it for a purpose other than that for which the privilege was accorded. It follows that the Court of Appeal erred when it proceeded on the basis that an honest belief in the rumours was conclusive evidence of the absence of malice. Secondly, as explained at paras 49-50 above, recklessness in this context means indifference to the truth or falsity of the allegation: it does not have to amount to wilful blindness, or to be accompanied by some other state of mind, in order to support a finding of malice. Having accepted that there might be an arguable case on recklessness, the Court should have ordered a retrial.

54.  The Court of Appeal examined the evidence in considerable detail before reaching the conclusion that there could not be a finding of malice. As it implicitly acknowledged, however, there was evidence which could be regarded as going the other way. Considering the evidence so far as it is before this Court, in the light of the law in relation to malice as set out above, it cannot be said that the Judge would have been entitled to withdraw the case from the jury. Another way of approaching the matter is to ask, as Bingham LJ asked in Kingshott v Associated Kent Newspapers [1991] 1 QB 88, 99, “whether, if the issue were left to the jury and the jury found for the plaintiffs, that verdict would be set aside as perverse”.  My answer is that I do not think it would. Having reached that conclusion, it would be inappropriate to discuss the evidence in greater detail. It is sufficient to say that there were matters on which both parties could rely in support of their respective positions. No assumption can therefore be made as to the correctness of the Court of Appeal’s conclusion on the facts.

55.  A retrial should therefore be ordered on the issue of malice. So far as the issues of defamatory meaning and qualified privilege are concerned, the parties remain bound by the conclusions reached in the present proceedings, since they are not affected by the misdirection. They also remain bound by the findings of fact made by the jury in the special verdicts specified in para 9 above, relating to what was observed during the tests, the rumours circulating among the pupils, and the parents’ knowledge of the rumours. The quantum of damages will have to be re-assessed in the event that some, but not all, of the four communications in question are found to have been made maliciously. Any other issues arising in relation to the retrial will be for the Court of First Instance to determine.

Costs

56.  Both parties bear responsibility for the problems which arose in this case in relation to the issue of malice. Those problems necessitated the defendants’ appeal to the Court of Appeal, and that Court’s treatment of the issue necessitated the plaintiffs’ appeal to this Court. In relation to the other issues in the case, both parties were partially successful before the Judge: the plaintiffs succeeded on the issue of defamatory meaning, and the defendants on the issue of qualified privilege. The only unnecessary element of the proceedings for which only one party bears responsibility is the plaintiffs’ appeal to the Court of Appeal on the issue of qualified privilege. As mentioned earlier, that appeal, CACV 251/2015, is not before this Court.

57.  In these circumstances, I would make the following order nisi on costs, namely that there should be no order as to costs before the Judge, the Court of Appeal or this Court, other than the costs in relation to the issue of qualified privilege before the Court of Appeal in respect of the four communications found by the jury to have been published maliciously. Those costs should be awarded to the defendants. Any party challenging this order nisi should lodge written submissions with the Registrar (copied to the other parties) within 21 days from the date of the handing down of this judgment, with liberty to the other party to lodge written submissions in reply within 14 days thereafter. The Court will decide the question on the basis of the written submissions received within the relevant period. If no written submissions are received seeking a different order as to costs before the expiry of the relevant period, the order nisi will become absolute.

Chief Justice Ma:

58.  For the reasons contained in the Judgment of Lord Reed, it is ordered that:

(1) The appeal (from CACV 252/2015) be allowed and the orders made by the Court of Appeal be set aside; and

(2) There should be a retrial on the issue of malice in the Court of First Instance.

As for costs, there should be an order nisi as to costs as set out in para 57 above.