SHIU HON PO v. TAM SIU PING

DCCJ 31/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 31 OF 2006

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JUDGMENT

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1.  The Hong Kong Wah Yan College is an eminent secondary school established over 90 years ago run by the Society of Jesus of Ireland using English as the medium of instruction (the “WYC”). It is a grant-in-aid school fully subsidised by the Hong Kong Government through the Education and Manpower Bureau.

2.  The plaintiff, Mr Shiu Hon Po, was an English teacher of WYC since 1991 until his retirement from the school in 2010.

3.  The defendant, Mr George Tam Siu Ping, is the first non-priest principal of WYC when he was appointed to the post in 1996.

4.  WYC is and was managed by a school management committee (the “SMC”) consisting of the school supervisor as the chairman, the principal, the assistant principal, representatives from the school’s sponsoring body, the principal of Wah Yan College Kowloon, the parents teachers association’s representative, the representative of the alumni of WYC, and the teachers’ representative.  The SMC meets four times a year.

5.  The plaintiff claims that the defendant had defamed him by making certain statements about the plaintiff at a school management meeting held on 14 September 2004 in the presence of 9 other members of the SMC (“the Statements”).

6.  The plaintiff contends that the Statements were false, made maliciously, knowing them to be false or not caring whether or not they were true.  As a result, the plaintiff’s reputation has been tarnished and he suffered loss and damage consequently.

Background

7.  The background to the incident involved an investigation conducted by the defendant of 3 teachers including the plaintiff at WYC after alleging he had received a telephone call on or about 4 May 2004 from Miss Chan Lin of the Education and Manpower Bureau (“EMB”) who told him she had received a complaint from a parent of a student of WYC’s class 4K that the teachers of Chinese, Mathematics and English failed to give any homework to their students in the 2^nd term of the 2003/2004 academic year (“the complaint”).

8.  The defendant met with the plaintiff and Mr D Lui, the Chinese teacher, and asked them to submit their record of work for class 4K in the 2^nd term of 2003/2004.  The plaintiff then submitted to the defendant a 2 page record on the work assignments he gave to students of class 4K in the 2^nd term of 2003/2004 academic year.

9.  As a result of the investigation, the defendant accepted that work was assigned to the students at class 4K by the 3 teachers and found the complaint not established.

10.  At the quarterly meeting of the School Management Board (“the board”) on 14 September 2004 (“the meeting”), a letter from the plaintiff to the board was submitted to all members of the board at the meeting.  In response to the plaintiff’s letter, the defendant made ‘the Statements’.  An audio recording of the meeting and the transcript have been disclosed in these proceedings, the authenticity and accuracy has been agreed.

The plaintiff’s case

11.  The plaintiff pleaded in his Statement of Claim that the defendant published at the 14 September 2004 meeting, the following statements which were defamatory of the plaintiff:-

“(i) …… last year, I discussed the case with Father Deignan, all together, that we received the complaint from EMB that they’d received a complaint from parents saying that his son, in 4K, get no homework for the English, Chinese and Mathematics for a long time. And his son didn’t write any essay at all for a few months. And therefore, at that – after that complaint received, I discussed with Father Deignan what steps should we do. It is the formal complaint from Miss Chan of the EMB to the school;

(ii) …… I disclosed – discussed with Father Deignan and this is the formal complaint from the EMB. I don’t say whether it is formal in writing; he call me from telephone, telling me the things;

(iii) Now, for example, in English, he (the Plaintiff) argued that I give work – he showed me all the record; the only thing is not according to the schedule of work …… because in the scheme of work, he said they have to write so many number of essays in this period. And he argued that this is the essay writing in the textbook; after that, they have many questions to ask them and he just asked the student to do this and without corrections …… no correction;

(iv) actually, not marked, the paper;

(v) …… it is Mr Shiu and I asked him to give me the work they had done to the students. And, later, he gave me all the records of asking the students to write something in the textbook, as the essay, he considered;

(vi) …… he explained that he has – he did checked the answer with the students. I don’t know how to check writing task. You can see every unit he asked the students to do some writing task. And then he said, “I did correct in class verbally.” I don’t know how to correct writing task verbally.”

(“the Statements”)

12.  The members who attended the SMC meeting on 14 September 2004 were:-

“(i) Rev AJ Deignan - the supervisor of WYC

(ii) Rev JC Coghlan - representative of the school sponsoring body

(iii) Rev T Leung - representative of the school sponsoring body

(iv) Rev W Lo - representative of the school sponsoring body

(v) Mr S Chan - Student’s parent and Representative of parent Teacher Association of WYC

(vi) Mr KC Kwok - Assistant Principal of WYC

(vii) Mr SP Tam - Principal of WYC

(viii) Mr N So - Principal of Wah Yan College Kowloon

(ix) Dr P Wu - Representative of the alumni of WYC

(x) Mr KH Yip - Representative of teachers of WYC”

13.  The plaintiff claims the Statements bore the following natural and ordinary meanings:-

“(i) the Plaintiff has not fulfilled his duty as an English teacher to give any or any sufficient essay writing assignments to his students;

(ii) the Plaintiff took a cavalier attitude towards his duty as an English teacher;

(iii) the Plaintiff’s conduct led to a formal complaint from EMB; and/or

(iv) the Plaintiff is an irresponsible and/or incompetent teacher as he did not mark or correct the essay assignments of his students.”

14.  The plaintiff claims the Statements were defamatory of and concerning the plaintiff which tended to lower the plaintiff in the estimation of the school authority and the SMC members of WYC.  They were also calculated to disparage the plaintiff in his profession as a teacher.  As a consequence, the plaintiff claims he was seriously defamed and suffered considerable injury to his reputation and was gravely distressed.

15.  The plaintiff also claimed that he was told by a few of the SMC members after hearing the Statements that they had developed a negative impression of the plaintiff.

16.  Because of the defendant’s defamation, the plaintiff claimed he had been suffering from symptoms of anxiety including sleep problem, muscle twitching, chest discomfort, onset of sudden fear and worry.  He had been receiving psychological counselling and treatments from a psychiatrist.

17.  It is the plaintiff’s claim that the Statements were false, in that:-

(i)     the EMB has no record of any complaint any teachers of class 4K in WYC in the 2^nd term of 2003/2004 academic year;

(ii)    Miss Chan did not make a formal complaint to the defendant against any teachers of class 4K in WYC in the 2^nd term of 2004/2005 academic year;

(iii)   the plaintiff had shown to the defendant he had in fact assigned a wide variety of practices including sufficient number of essay writing assignments to his students;

(iv)   the essay assignments given by the plaintiff to his students were not merely “writing something in their textbooks”.  In any event, at all material times, he did mark and/or correct his students’ writing assignments he had set for them.

18.  It is further the plaintiff’s case that the defendant published the Statements maliciously because:-

(i)     The defendant has been holding a personal grudge against the plaintiff due to previous disagreements on the plaintiff’s part to draft a letter to students’ parents for him; the plaintiff opposed the defendant’s proposal to implement moral education teaching through the public address system in the morning at the school; and the plaintiff opposed the defendant’s implementation of the uniform tests in the September 2004 school year without sufficient consultation;

(ii)   the Statements were fabricated by the defendant;

(iii)   the defendant published the Statements knowing them to be false or not caring whether they be true or false, with the dominant motive of smearing the plaintiff;

(iv)   the defendant failed to inform the SMC that he had considered the complaint received from the EMB to be invalid and the case was closed.  To the contrary, he said words to the effect that the complaint was valid and gave his explanations for taking such a view.

The defence case

19.  It is the defendant’s case that on 4 May 2004 he received a telephone call from Miss Chan, the senior development officer (Wanchai) of the EMB informing him there was a complaint from a parent of a class 4K student that the English, Mathematics and Chinese teachers failed to give homework to their students in the 2^nd term of the 2003/2004 academic year.

20.  The defendant met with the plaintiff and the Chinese teacher Mr D Lui following the telephone call and ask them to submit a record of work assignments that they gave to the class 4K students in the 2^nd term of 2003/2004, Mathematics panel chairman of the school asked the Mathematics teacher Mr Lai Hung to submit his report to the assistant principal Mr Kwok.  After the plaintiff submitted his record, the defendant confirmed the plaintiff did give work assignments to the students in class 4K concluded the complaint was not established and the case against the 3 teachers was closed.

21.  The defendant admitted the matter was raised at the SMC meeting on 14 September 2004 when the Plaintiff’s letter of the same date to the management board was read by the SMC members.  He denied the Statements he made at the meeting were in their natural and ordinary meaning defamatory of the plaintiff.

22.  Further, the defendant maintains he was under a legal and professional duty to report to the members of the SMC on 14 September 2004 including the Statements, therefore, the Statements were published by the defendant lawfully in good faith, without malice, and on an occasion of qualified privilege.

23.  The defendant denied he harboured any malice against the plaintiff or he had fabricated the complaint from EMB with the intention of smearing the reputation of the plaintiff.  The defendant relies on the defence of justification under s 26 of the Defamation Ordinance Cap 21 and qualified privilege.

The issues

24.  There are two issues to be determined:-

(i)     Whether the defendant had in fact received a phone call from the EMB in May 2004, or whether the defendant fabricated the whole incident out of thin air with the intention to thereby smear the plaintiff’s reputation; and

(ii)     whether the defendant said what he had said in the meeting without malice, or with malice?

Discussion

(i) Whether the defendant had in fact received a phone call from the EMB in May 2004, or whether the defendant fabricated the whole incident out of thin air with the intention to thereby smear the plaintiff’s reputation

25.  The plaintiff said he felt insulted and confused when he was told by the defendant on 10 May 2004 that he received a parent’s complaint that he did not give the class 4K students sufficient work assignments in the 2003/2004 school year, he felt his good teaching reputation was seriously harmed.  Nevertheless, he agreed to compile a record of the class 4K work assignments in the 2^nd term and submitted it to the defendant (p 33-34 of bundle B).  He denied the defendant had ever informed him “the complaint was not established and the case was closed” as the defendant alleged, he was only told by the defendant after he submitted his report that he had always believed that is not the practice of Wah Yan teachers (not giving assignments).  Feeling aggrieved, on 14 September 2004, he wrote to the SMB members in order to clear his name questioning if the complaint was a genuine complaint from the EMB.

26.  The plaintiff said he had approached four members of the SMB individually after the 14 September 2004 SMC meeting and felt they had developed a negative impression of him, he became gravely distressed.  As a result, in January 2005 he visited Miss Chan Lin of the EMB at her office to find out if she had forwarded the complaint to the defendant.  She told him she would investigate the matter.  At a later visit, he was told by Miss Chan she had no record of any complaint against him.  He further stated that at a telephone call in late January 2005, Miss Chan had confirmed to him that she did not telephone the defendant to relate the complaint to the defendant.

27.  The plaintiff relied on three letters from Miss Chan in reply to the written enquiries from the plaintiff’s solicitors on 11 May 2005, 9 September 2005 and 22 September 2005 that the EMB had no record of complaint against any teacher of class 4K of WYC in the 2^nd term of 2003/2004 school year, that she was unable to recall if she called the defendant informing him the EMB had received a class 4K parent’s complaint of lack of homework in the 2^nd term of the 2003/2004 school year.  She further confirmed in the 3^rd letter that she did not receive any formal complaint in writing or orally concerning the teachers of English, Chinese and Mathematic of Form 4K of WYC and she could not recall if there were any anonymous complaints over the phone of such nature in the second term of 2003/2004 school year.

28.  The defendant relied on a school log book kept by him that recorded all the important matters of the school.  The recording in the relevant page was produced at the trial (p 293 of bundle A), the entry recorded the EMB had forwarded a complaint from a parent of a Form 4K student that the teachers of Chinese, English and Mathematics did not give any work or tests to the students in the 2^nd term.  The defendant further produced his desk diary of May 2004, it showed a recording in the following: “EMB told that a parent from 4K complaint that Chinese, English and Mathematics teachers did not give any test and composition since the 2^nd term” (p 295 of bundle A).

29.  The defendant further relied on a second entry in his desk diary of March 2005, the entry at 14 March recorded:-

“Ms Chan from EMB informed me that they received lawyer letter rep Mr HP Shiu asking the details concerning the complaint make by the parent last May2004.”

30.  It is the evidence of Mr Kwok Ka Chu, the assistant principal of WYC, that in early May 2004, he had received a telephone call from Miss Chan of EMB while the defendant was out of the office, that she wanted to speak to the defendant on the matter of a complaint from a parent of class 4K student on the lack of homework in the subjects of Chinese, English and Mathematics.  He told Miss Chan it is a matter that should be handled by the defendant.  He told the defendant about the call on his return to the office.

31.  The plaintiff recalled that a parent had complained to him about the Mathematics and Chinese teachers in January 2004 at a school report meeting because her son did not do well in those two subjects.  He told her at the time to tell her son to work harder, and if she wished to lodge a complaint, she should go to Father Deignan.  When he saw the parent again in June 2004, she told him she did not complain against him.  The plaintiff therefore believed the defendant had fabricated the complaint against him.

32.  Mr Leung, counsel for the plaintiff, submitted that the defendant’s log book and desk diary entries are unreliable because they were ‘retrospective’ recordings for nearly all the entries were in the past tense even though the defendant claimed under cross-examination he would write ‘what he needed to do’ on the log book.

33.  Further, the defendant’s record on 6 May 2004 was, he interviewed Mr Liu, Mr Shiu and Mr Lai (the 3 teachers) and requested them to forward their work schedule of class 4K from February to April to him.  The record of the date of the interview, the plaintiff claimed, was wrong for the defendant admitted under cross-examination that he had approached the plaintiff on the complaint on or about 10 and 11 May 2004, and the plaintiff delivered his report to him on 12 May 2004.  Mr Leung also pointed out there were other wrong entry dates in the log book.  Mr Leung further criticized the defendant for failing to subpoena Miss Chan of EMB to give evidence at the trial.

34.  I find there are strong cogent evidence that the complaint from EMB was genuine based on the evidence of Mr Kwok Ka Chu, the assistant principal, that he had received a telephone call from Miss Chan Lin of EMB in early May about the parent’s complaint, it supported the evidence of the defendant.  The entries in the defendant’s desk diary of the telephone calls from EMB and the lengthy recordings in the school log book also lent credence to the complaint in spite of an admitted confusion over the dates of the defendant’s interview of the 3 teachers and the subsequent submission of the reports.  The evidence of Father Deignan and the defendant that there were frequent communications between Miss Chan of the EMB and the principal of the school, supported the defendant’s case.  I accept that a casual communication of an anonymous complaint from a parent through the EMB to the school principal is not unlikely even though the complaint was informal.  I accept the defendant did not fabricate the telephone call from Miss Chan of EMB on 4 May 2004 over an anonymous complaint of a parent of a student of class 4K. 

35.  There was clearly a deep mistrust between the plaintiff and the defendant based on the reasons set out by the plaintiff (see para 18 above) which led to the plaintiff’s suspicion that the defendant had fabricated the complaint from the EMB against him.  I accept that anyone, parent or student, can access the EMB and lay an anonymous oral complaint against a school or a teacher even though the complaint may not be valid.  Though it may be against the established recommended practice for the EMB to investigate an anonymous complaint, it is possible that the EMB may relate such a complaint to the school in any event.  It is, therefore, possible that Miss Chan did communicate an undocumented anonymous complaint from a parent to the EMB orally to the school’s principal, though the complaint may not warrant a record in writing.

36.  The letters from Miss Chan in reply to the plaintiff’s solicitor’s enquiries only confirmed there was no formal complaint, they failed to confirm if there were informal ones.  What Miss Chan might have told the plaintiff on the telephone is strictly hearsay, it was not supported by direct evidence from her, it is certainly not supported by her 3 letters to the plaintiff’s solicitor.  Furthermore, it is irrational for a busy person like the defendant to have created more work for himself to fabricate an EMB complaint against the 3 teachers of the school, particularly when it involved an investigation of all 3 teachers not just the plaintiff. 

(ii) Whether the defendant said what he had said in the meeting without malice, or with malice?

37.  The tape recording and the transcript of the SMC meeting on 14 September 2004 have been accepted to be authentic and accurate by both parties.  The transcript of the tape recording showed the defendant did make the Statements alleged by the plaintiff.  The burden of proof that the Statements were made with malice knowing them to be false or not caring whether they were true or false with the dominant motive of smearing the plaintiff is on the plaintiff. As stated by Cotton LJ in Clark v Molyneux [1877] 3 QBD 237 at p 249:-

“When once the learned judge had laid down that the occasion was privileged, the only question for the jury to consider was whether the defendant acted from a sense of duty, or was actuated by some improper motive, and the onus of proving that the defendant was influenced by some improper motive, that is, that he acted maliciously, was on the plaintiff. In order to show that the defendant was acting with malice, it is not enough to shew a want of reasoning power or stupidity, for those things of themselves do not constitute malice: a man may be wanting in reasoning power, or he may be very stupid, still he may be acting bona fide, honestly intending to discharge a duty. The question is not whether the defendant has done that which other men as men of the world would not have done, or whether the defendant acted in the belief that the statements he made were true, but whether he acted as he did from a desire to discharge his duty.”

38.  Mr Leung submitted the Statements were made with malice because:-

(a)     There was no complaint in the first place;

(b)     the defendant had never informed the plaintiff the complaint was not established and the case was closed prior to or after the meeting;

(c)     the defendant made extensive remarks to explain to the SMC members at the meeting why he considered the complaint was ‘valid’ ie ‘established’;

(d)     the defendant was not in a state of ‘semi-consciousness’ or ‘semi-coma’ at the meeting as claimed by him when the Statements were made;

(e)     Father Deignan’s spontaneous responses to the defendant’s allegations during the meeting of the plaintiff not correcting students’ work are entirely at odds to the suggestion that the defendant had told Father Deignan prior to the meeting the complaint was not established and the case closed;

(f)     the Statements were made by the defendant at the meeting because he felt insulted that the plaintiff should send the letter to the SMC members at the SMC meeting on 14 September 2004.

39.  Mr Leung further submitted that an occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the Statements.  A motive foreign to the occasion and actuates the making of the Statements is “express malice” which destroys qualified privilege.  He relies on the Australian case of Roberts v Bass (2002) 194 ALR 161.

40.  The leading authority on qualified privilege is the House of Lords case of Horrocks v Lowe [1975] AC 135 where Lord Diplock said at p 149 C to F:-

“The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognizes that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue. With some exceptions which are irrelevant to the instant appeal, the privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused. 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.”

41.  The defendant’s defence is, he made the Statements at a privileged occasion. Therefore, even though the Statements turned out to be untrue and defamatory, it is not actionable against him.

42.  It is not disputed by the plaintiff that the occasion where the Statements were published was a privileged one made to a small number of people on the SMC.  However, if he misused the occasion for an improper motive, he would lose the protection.  See Lord Diplock’s dictum at p 149 F to H:-

“So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial.  The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest.  So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved.  “Express malice” is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove.  But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.”

43.  To prove express malice, it must be shown the person making the Statements did not believe what he published was true.  In the case of Horrocks v Lowe, the House of Lords affirmed the Court of Appeal’s decision and held the defendant had not misused the privileged occasion by using it for some purpose other than that for which the privilege was accorded to it in the public interest, his positive belief in the truth of what he said entitled him to succeed in his defence of qualified privilege.

44.  Lord Diplock held the defamer’s motive in publishing the defamatory remarks can only be inferred from what he said or knew.  If it can be proved he did not believe the remarks were true, express malice is shown.  He held at p 150 A to G:-

“…… for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under duty to pass on, without endorsing, defamatory reports made by some other person.

Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, “honest belief.” If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true.”

He went on further at p 150 E to G:-

“Even a positive belief in the truth of what is published on a privileged occasion – which is presumed unless the contrary is proved – may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled. There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant’s dominant motive may have been to obtain some private advantage unconnected with the duty or the interest which constitutes the reason for the privilege. If so, he losses the benefit of the privilege despite his positive belief that what he said or wrote was true.”

45.  The defendant claimed that the Statements were made with the honest subjective belief that he was just performing his duties as the principal of WYC without malice towards any person or intention to defame.

46.  Mr Lam submitted that whether a person said what he said ‘with a desire to discharge his duty’ is a subjective test.  He relied on the dictum of Hirst LJ in the English Court of Appeal case of Loveless v Earl [1999] EMLR 530 at p 538:-

“Malice is a subjective test, entirely dependant on the defendant’s state of mind and intention. Thus, in a case where words are ultimately held objectively to bear meaning A, if the defendant subjectively intended not meaning A but meaning B, and honestly believed meaning B to be true, then the plaintiff’s case on malice would be likely to fail.”

47.  At the SMC meeting, when the defendant was asked whether the complaint was valid, his reply was ‘valid’ (p 108 of bundle B).  When he gave evidence at the trial, the defendant explained he had meant the complaint was ‘real’.  He said his English is not very good, he had confused the two words at the meeting.  He did not mean the complaint was established at the time, he only meant there was a genuine complaint from the EMB.  He further explained he was in a state of ‘semi-consciousness’ or ‘semi-coma’ (半昏迷).

48.  In this regard, one has to turn to the transcript of the recording of the meeting to find out the context within which the Statements were made.

49.  At p 71 of the transcript, (p 108 of the bundle B), the question which preceded the defendant’s answer was: ‘the question is, was the complaint valid’.  He replied ‘valid’.  Then the defendant went on to explain what he meant, he gave the example that the plaintiff had asked the students to write essays in their textbooks which the plaintiff would not correct.  He also accused the plaintiff for failing to follow the scheme of work laid down by the school.

50.  The defendant also said earlier at the meeting that after he received the complaint from the EMB, he had asked the three teachers involved to give him a record of the work they have done with the students and their schedule of work.  He said the plaintiff gave him all the records of work he had assigned to the students, but claimed the plaintiff had told him the writing tasks in the textbook were essays (p 90 of bundle B).

51.  The plaintiff pointed out that was not true.  He had in fact reported to the defendant he had assigned to the students a number of compositions with specific topics, in addition, writing tasks in the textbooks as well as grammar lessons from a book of grammar (which was not in the required syllabus).  These have been included in the trial bundle in support of the plaintiff’s evidence. He said he had made out a list of the above in the 11 May 2004 report to the defendant explaining he did more than was required under the scheme of work with the students of class 4K (p 33-34 of bundle B).

52.  The defendant admitted in his evidence when he received the plaintiff’s report he said to the plaintiff “As I said, WYC teachers won’t be like that”「都話華仁啲先生唔會咁啦」.  That he had reported it to Father Deignan after the investigation and told him the complaint was not established and the case was closed. 

53.  After the SMC meeting, Father Deignan wrote a letter in reply to the plaintiff’s letter to the SMC on 22 September 2004 informing him the SMC had established at the meeting that the EMB did receive a complaint which the principal was obliged to investigate and that the plaintiff’s record of work to the students of class 4K showed the complaint was not true.  And that members of the SMC considered the only possible complaint may be the plaintiff may not have insisted on every student handing in his homework (p 133 of bundle B).

54.  In light of the aforesaid undisputed background that the complaint was considered by the defendant, the principal, and Father Deignan, the supervisor, to be not established and the case was closed before the SMC meeting on 14 September 2004, it is surprising for the defendant to have responded in the way he did to the plaintiff’s letter to the SMC at the meeting.  Even if one accepts that he misunderstood the question from Mr So, the principal of Kowloon Wah Yan College, and used a wrong English expression ‘valid’ in reply to the question ‘whether the complaint was valid?’ his clarifications after his reply at the meeting on the work the plaintiff had done with the students of class 4K showed he was strongly criticizing him for giving only writing tasks on the English textbook to the student without marking their work and failed to assign to them any essay writing during the 2^nd term of 2003/2004.  When in fact, the plaintiff had shown to him a report that not only the English textbook writing tasks but also 6 essay titles were assigned and the English grammar practice textbook was taught.  His clarifications of the plaintiff’s teaching at the meeting were completely at odds with the result of the investigation he conducted following the complaint.

55.  The Statements therefore cannot be described as fair given he must know at the time that the work given by the plaintiff to his students at class 4K was more than just the writing tasks.  The inference to be drawn is the plaintiff could not have honestly believed the Statements he made were true.

56.  The next question is, whether the defendant made the Statements in discharge of his duty or with a desire to discharge his duty.  Mr Lam, counsel for the defendant submitted, the defendant said what he said at the meeting with the subjective belief that he was performing his duties as the school principal without malice or intention to defame anyone.  Thus, he is entitled to the qualified privilege defence.

57.  In the High Court of Australia case of Roberts and Anor v Bass (2002) 194 ALR 161, Gaudron, McHugh and Gummow JJ held at paras 84 to 86:-

“In exceptional cases, the sheer recklessness of the defendant in making the defamatory statement, may justify a finding of malice.  In other cases, recklessness in combination with other factors may persuade the court that the publication was actuated by malice.  In the law of qualified privilege, as in other areas of the law, the defendant’s recklessness may be so gross as to constitute wilful blindness, which the law will treat as equivalent to knowledge.  “When a person deliberately refrains from making inquiries because he prefers not to have the result, when he wilfully shuts his eyes for fear that he may learn the truth”, said this court in R v Crabbe, he may for some purposes be treated as having the knowledge which he deliberately abstained from acquiring.”  In less extreme cases, recklessness, when present with other factors, may be cogent evidence that the defendant used the occasion for some improper motive.  This is particularly so when the recklessness is associated with unreasoning prejudice on the part of the defendant.  In Royal Aquarium and Summer and Winter garden Society v Parkinson, Lord Ester MR said:

If a person charged with the duty of dealing with other people’s rights and interests has allowed his mind to fall into such a state of unreasoning prejudice in regard to the subject-matter that he was reckless whether what he stated was true or false, there would be evidence upon which a jury might say that he abused the occasion.

Fifteen years earlier, as Brett LJ, Lord Esher MR had said:

If it be proved that out of anger, or for some other wrong motive, the defendant has stated as true that which he does not know to be true, and he has stated it whether it is true or not, recklessly, by reason of his anger or other motive, the jury may infer that he used the occasion, not for the reason which justifies it, but for the gratification of his anger or other indirect motive.

In Lord Diplock’s speech in Horrocks, there are passages that standing alone suggest mere recklessness or indifference to truth and falsity is sufficient to constitute malice.  But we do not think that Lord Diplock was intending to change the law, as it was laid down by Lord Esher MR in the above quotations.  In fact, in Horrocks Lord Diplock referred to Lord Esher MR’s judgments in these cases as correctly stating the law.  Furthermore, Lord Diplock introduced his discussion of “recklessness” by saying that, if the defendant “publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false” (emphasis added).  This statement makes it clear that Lord Diplock was using the term “reckless” in the sense of “wilful blindness”, as explained by this court in Crabbe.”

58.  In the Hong Kong Court of Final Appeal case of Cheng & Anor v Tse Wai Chu (2000) 3 HKCFAR 339 at p 360 I to 361D, after reviewing the authorities including those from the Australian and Canadian courts, Lord Nicholls concluded:-

“To summarise, in my view, a comment which falls within the objective limits of the defence of fair comment can lose its immunity only by proof that the defendant did not genuinely hold the view he expressed. Honesty of belief is the touchstone. Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive, does not of itself defeat the defence. However, proof of such motivation may be evidence, sometimes compelling evidence, from which lack of genuine belief in the view expressed may be inferred. Proof of motivation may also be relevant on other issues in the action, such as damages.

It is said that this view of the law would have the undesirable consequence that malice would bear different meanings in the defences of fair comment and qualified privilege, and that his would inevitably cause difficulty for juries. I agree that if the term “malice” were used, there might be a risk of confusion. The answer lies in shunning that word altogether. Juries can be instructed, regarding fair comment, that the defence is defeated by proof that the defendant did not genuinely believe the opinion he expressed. 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.”

59.  The fact that the defendant did conduct an investigation of the complaint and had at the end of the investigation accepted the report of the plaintiff (p 33-34 of bundle B), and, as asserted by him, told the plaintiff the complaint was not established and the case closed, but made the Statements at the meeting, demonstrated he did not honesty believe the truth of what he told the members at the meeting.  It is clear from the plaintiff’s report that in addition to the writing tasks on the textbooks, the students were assigned the writing of 6 essays in the 2^nd term as well as supplementing the teaching of English grammar from a grammar textbook.  The defendant could not have genuinely held the view he expressed.  Whatever was the motive, it could have been actuated by spite, ill will, an intention to arouse controversy which the defendant denied, it is evident the Statements were made in response to the plaintiff’s letter to the SMC members which cast doubt on the genuineness of the EMB complaint, thus, it could have been perceived by the defendant as a challenge to his integrity.

60.  I am not persuaded that the defendant honestly believed that he was asked if the complaint was a ‘real’ complaint from the EMB when a member of SMC asked him if the complaint was valid.  If he did, one would expect he would have given further details of the complaint such as the date of the call and name of the EMB officer rather than proceeded to explain the ‘essay writings’ the plaintiff gave to his class 4K students consisted only of writing tasks on the textbook which he said the plaintiff did not correct.  Having accepted the plaintiff’s report of 11 May 2004 he must have known the Statements were not true and would give the members of the SMC a wrong impression of the plaintiff.  Having listened to the tape recording of the meeting, I cannot find any evidence of semi-consciousness in the voice of the defendant.  His use of English may not be refined, his grammar may not be perfect, but he was eloquent, and his voice clear and firm.

61.  I am satisfied the plaintiff have successfully discharged the burden of proof that the Statements were made with malice and the defendant therefore lost the protection of qualified privilege.

Justification

62.  Based on the aforesaid findings, the defence of justification fails.  I am satisfied the plaintiff’s reputation had been injured in the eyes of the SMC members who were present at the meeting on 14 September 2004.

Remedies

63.  As observed by Lord Diplock in Horrocks v Lowe at p 149C:-

“…… as a general rule English law gives effect to the ninth commandment that a man shall not speak evil falsely of his neighbour. It supplies a temporal sanction ……”

Apology

64.  The plaintiff asks in addition to damages for an apology from the defendant to include (1) an admission of having fabricated the existence of the complaint from EMB in May 2004; (2) an admission of having fabricated all the criticisms made against the plaintiff at the SMC meeting; and (3) a formal retraction of all criticisms made against the plaintiff during the SMC meeting.  He also asks for the apology to be published to all the SMC members who attended the meeting on 14 September 2004 and the current members of the SMC of Hong Kong Wah Yan College.  The defendant had through his counsel expressed his willingness to apologize to the plaintiff voluntarily, but he disagreed with the form proposed by the plaintiff’s counsel.

65.  I agree an apology to the plaintiff is suitable in this case.  As I have found that the EMB complaint was a genuine one, the apology should not include (1) above.  An apology including (2) and (3) is appropriate.  Because the Statements were made at the SMC meeting, I agree both the SMC members who attended the 14 September 2004 meeting and the current SMC members should be shown a copy of the defendant’s apology letter.

66.  I would leave the contents of the letter of apology to be agreed between the counsel for the plaintiff and the defendant with liberty to apply should they fail to agree the contents.

Damages

67.  “The objective is to restore the plaintiff, as far as money can do so, to the position he would have been in if the tort had not been committed, see Duncan and Neill, Defamation, op cit para 18.04, where there has been no retraction or apology, an order for damages is the only solatium available to the plaintiff.” (per Le Pichon J in Hung Yuen Chan Robert v Hongkong Standard Newspapers Ltd [1996] 4 HKC 519 at p 533C).

68.  The defendant had through his counsel submitted his willingness to apologize to the plaintiff and in his latest witness statement, he attempted to explain his use of words at the meeting was due to a misunderstanding or the use of a wrong word.  He offered an apology for the poor choice of words.

69.  I have found that the Statements were made not due to a wrong choice of word having considered the context of the comments, neither did the tone of his voice on the tape recording appeared to belong to someone who was in a semi-conscious state.  On the basis that the Statements were made to a small audience that consisted of the members of the SMC only and were not meant to be published outside the SMC, the harm and injury to the plaintiff would be restricted to the impression of those who were present at the meeting only.  There was no record of the Statements on the minutes of the meeting, if not for the disclosure of the tape recording kept by the secretary to facilitate the preparation of the minutes of the meeting, the Statements would not have been made known to anyone outside the SMC.  Had the plaintiff not insisted on Mr Yip giving him a copy of the recording that he had copied from the tape kept by the secretary, Mrs Hui, the plaintiff would not have been able to produce the tape recording or the transcript in these proceedings. 

70.  Father Deignan’s reply letter to the plaintiff on 22 September 2004 though contrary to the conclusion of the discussion at the meeting, informed the plaintiff the complaint was not established and the case was closed.  This effectively means there was no blemish on the plaintiff’s record at the school.

71.  Furthermore, there is no indication that the defendant had been publishing the Statements to other persons in the 9 years since the meeting or any intention to further publish the Statements.  I do not consider an injunction is applicable. 

72.  Le Pichon J (as she then was) referred to the dictum of the Court of Appeal in the Cheung Ng Sheong Steven v Eastweek Publisher Ltd [1995] 3 HKC 601 in considering the question of damages for libel at p 533 D to F:-

“In the recent Court of Appeal decision in Cheung Ng Sheong Steven v Eastweek Publisher Ltd [1995] 3 HKC 601, it had to consider the question of damages for libel. It accepted (at p 613D-F) the submission that:

…… damages for libel must provide for several disparate elements, not only damage to esteem and reputation. They also ‘must be sufficient to publicly and demonstratively and absolutely vindicate the plaintiff and to compensate for seriously injured feelings (Yu Kwong Chu v Consolidated Newspapers Ltd (A258/86, unreported) at p 30’ not only caused by the original libel but all the subsequent aggravation thereof down to the verdict, which would restore the plaintiff’s ‘pride and confidence’ (McCarey v Associated Newspapers Ltd (No 2) [1964] 3 All ER 947 at 958). They must enable the plaintiff to convince a bystander the baselessness of the charge if ‘the libel driven underground, emerges from its lurking place at some future date’ (Cassell & Co v Broome [1972] 1 All ER 801).

Submissions were made in that case to the effect that in the assessment of damages for defamation, regard should be had to personal injury awards.  Although the disparity between enormous awards made for relatively inconsequential and ephemeral defamation and the modest awards for the most damaging personal injuries that are moreover permanent can only be viewed as scandalous, the House of Lords’ decision in Cassell & Co v Broome [1972] 1 All ER 801 is binding and the use of personal injury awards has been held to be impermissible.  See also Rantzen v Mirror Group Newspapers Ltd [1994] QB 670.”

73.  I have also considered compensations made in discrimination cases in the UK where in the English Court of Appeal case of Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871, Lord Mummery set out the guidance for employment tribunals on how to make injury to feelings awards, he held at para 65:-

“65. Employment Tribunals and those who practise in them might find it helpful if this Court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury.

(i)     The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race … Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.

(ii)    The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band.

(iii)    Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.

66.     There is, of course, within each band considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.”

74.  In Da’Bell v NSPCC[2009] UKEAT 0227, the EAT updated the bands to between £18,000 and £30,000 (top), £6,000 to £18,000 (middle) and up to £6,000 (lower).

75.  The Vento bands have been considered and accepted by the Court of Appeal in Hong Kong in Yuen Wai Han v South Elderly Affairs Ltd [2005] 2 HKLRD 277.  To arrive at an appropriate award, I have considered factors such as the gravity and seriousness of the defamation and the position and standing of the plaintiff, the conduct of the defendant and the offer of apology by the defendant.  I have also noticed the plaintiff had carried on teaching at the school until his retirement in 2010 and he failed to pursue this action until after his retirement and waited until the defendant is due to retire in a few months’ time.  The fact that this case took 7 years to go to trial indicates the lack of serious regard for the defamation by the plaintiff.  Furthermore, the attention attracted by the trial of this action seems to have caused more damage to the reputation of the school than the personal reputation of the plaintiff in the eyes of the SMC members.  I find the plaintiff’s conduct of this action surprising for someone who professed his affection for the school.

76.  The defendant who is Catholic, had clearly breached the ninth commandant, he will have to face his God and conscience for speaking evil falsely of his neighbour.  The court can only provide temporal relief to the plaintiff in the form of damages.

77.  The plaintiff said he had sought psychiatric treatments after he found out what happened at the meeting for he believed at the time some members of the SMC have a different impression of him after the meeting.  He did not produce any medical reports on his psychiatric condition, 5 receipts from a general practitioner Dr Ho were produced showing he had sought medical treatments between June and August 2005, the medical costs were $2,620.  It is now 9 years after the SMC meeting, the injuries to his feelings suffered from learning of the Statements made at the meeting would have faded long ago.  I consider compensatory damages at the lower band of the Vento case to be appropriate.  It is assessed at $7,620 to include the $2,620 medical expenses in light of the limited audience the Statements were made to and the defendant’s offer of apology.  Should a formal apology be not forthcoming from the defendant, it may be substituted by a substantial increase of damages in its place (see the judgment of the Court of Final Appeal case of Ma Bik Yung v Ko Chuen (2006) 9 HKCFAR 888) as aggravated damages. 

78.  Costs – I can see no reason why costs should not follow the event.  I order costs to be borne by the defendant to be taxed if not agreed with certificate for counsel.  The cost order nisi will be made absolute if there is no application within 14 days hereof.

79.  Liberty to apply on the issue of apology should the parties fail to agree its form and contents.