LI SUK HAN HANA v. SUN TIEN LUN CATHERINE

HCA2598/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.2598 OF 2003

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J U D G M E N T

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The parties

1. This is a libel action involving two renowned psychologists and counselling consultants.

2. The plaintiff is the former Head of the Department of Counselling and Psychology of Hong Kong Shue Yan College (“the Department” and “SYC” respectively) between 1 September 1993 and 31 August 2001.  In September 2001, she joined the private practice with the Hong Kong Counselling and Medication Service (“HKCMS”), a business jointly established by her and her husband, Dr Tso Man King.  Since then, she has been HKCMS’s Chief Counselling Consultant and Clinical Supervisor to date.

3. The defendant is one of the leading academics in the field.  (The plaintiff was in the past one of her students in SYC.)  Between 1981 and 1984, she was the associate head of the Department.  She quitted in 1984 and joined SYC again in 1988 as the Dean of the Social Science Faculty.  She quitted again before the academic year 92/93 started.  It was in this semester that the plaintiff began to head up the Department.  In 2001, she succeeded the defendant after the latter’s departure.

Facts leading to this action

4. Most of the facts leading to this action are not controversial.  They are summarized below.

A.  The UNE Programme

5. At the material times, SYC ran a Master of Counselling Degree Programme (“the UNE Programme”) jointly with the School of Health, University of New England in Australia (“UNE”).  The plaintiff was involved in establishing the UNE Programme and had been its Hong Kong Coordinator until her departure in August 2001.  When the plaintiff took over as the current Head of the Department, she also became the Hong Kong Coordinator of the Programme.

6. The UNE Programme consisted of coursework and practical internship.  For the internship part, students were required to take an Internship in Counselling Unit (“the IIC Unit”).  Under the IIC Unit, students were required :

(1) to find a placement in an agency which provided counselling service by themselves; and

(2) to undertake counselling work as an internee under the supervision or an internship agency or a private supervisor.

B.  Pre-internship placements

7. Before students became eligible for enrollment in the IIC Unit, they must meet enough direct client hours either by having enough years of working experience in the counselling setting or having pre-internship placements.

8. Students who opted for the pre-internship placements were not required to engage a clinical supervisor to oversee their pre-internship performance, although they did in most cases.  The students were however required to prepare, complete and keep a Pre-Internship Record.  After they had attained the requisite pre-internship hours, they would then submit such record to the Coordinator for approval before they could enroll in the IIC Unit and apply for internship under the UNE Programme.

C.  Ms EW

9. Ms EW was a student of the UNE Programme.  She was admitted in 1998.  Between March 2001 and May 2002, the plaintiff was her clinical supervisor for her pre-internship placements pursuant to a tri-partite pre-internship agreement made between them and the Office of Students Affairs of SYC.  The plaintiff charged Ms EW $800 per hour for such supervision without reporting to SYC.

10. During the same period of time, the plaintiff also conducted about 15 to 20 private and confidential therapy sessions with Ms EW, charging her $800 per hour.  The plaintiff did not report this to SYC either.

11. Ms EW had paid a total sum of HK$74,400 to the plaintiff for the supervision and therapy sessions.

12. In early 2002, Ms EW suffered from ill health.  The plaintiff was not satisfied with her performance in respect of a certain programme offered to clients.  Frictions began to arise.  Eventually, their pre-internship supervisor-supervisee relationship was terminated.  Ms EW then found another supervisor, Ms Tse Pui Chi and applied to YMCA for internship.

D.  The Report

13. On 10 July 2002, Ms EW requested the plaintiff by email to assist her in her application for internship with YMCA.  The plaintiff was asked to provide a supervisor’s report, to be sent by mail or email to Ms Joanna To (“Ms To”) of the Social Services Department, YMCA.

14. At that time, the plaintiff had already left the employ of SYC and ceased to be Ms EW’s supervisor.  She nevertheless acceded to Ms EW’s request and sent a report to YMCA directly on 17 July 2002 (“the Report”).  The Report was written in a pro forma of YMCA entitled “Supervisory Report”.

15. Unbeknown to Ms EW at the time, the Report did not reflect favourably on her.  In fact, the plaintiff did not recommend her to YMCA.  “She is recommended to seek her own counselling for her own personal development”, the plaintiff wrote.

E.  Ms EW’s Request

16. Understandably, Ms EW was anxious to obtain a copy of the Report.  Apparently, she first approached Ms To who told her that the Report had to be countersigned by the plaintiff and her as supervisor and supervisee respectively.  According to YMCA’s pro-forma, signatures of both the supervisor and supervisee were indeed required.

17. On 27 August 2002, Ms EW requested the plaintiff by email to provide her with a copy of the Report for two reasons.  First, she needed it for future reference.  Second, Ms To she told her that both the plaintiff and she herself (as supervisor and supervisee) needed to countersign the Report but she had so far not seen or signed it.  “I think we need to follow up to complete the formal, if not professional, and necessary formality”, Ms EW wrote.  The plaintiff asked her by email of the same date to contact YMCA directly.

18. Separately, Ms To told the plaintiff by email that Ms EW had called her for a copy of the Report; that she did not consider it appropriate or ethical for her to obtain a copy for Ms EW as it was not sent to her directly; and that she had asked Ms EW if she could obtain it directly from the plaintiff.  It is not clear when Ms To wrote that email.

19. By email dated 28 August 2002, the plaintiff replied to Ms To’s said email, informing Ms To :

(1)	She had replied to Ms EW that she did not know about the policy of YMCA whether the Report was considered confidential or privileged that Ms EW might not be allowed to receive it.
(2)	She did not have obligations to write Ms EW the Report.  Thus it was prepared at the request from YMCA, not from her.
(3)	She had just talked to Ms Sylvia Wu (“Ms Wu”), YMCA’s Education & Community Services Manager, who was Ms To’s superior.  Ms Sylvia Wu had the report and she was the one to decide how to handle it.  Not the plaintiff, Ms To or Ms EW.
(4)	According to her understanding, the Report was for the agency to decide the quality of the applicant’s services and not about her learning needs.  She did not think it needed to be signed by the applicant because there was no ground for her to agree or not.
(5)	But she did not mind “your sharing of my opinions with [Ms EW], if it caters the needs of YMCA…”.

20. In other words, despite what she had said about the Report, the plaintiff would have no objection if YMCA were to provide a copy to Ms EW.

21. On 29 August 2002, the plaintiff wrote a substantially identical email to Ms Wu.

22. Unfortunately, Ms To had apparently misunderstood the plaintiff.  By email dated 29 August 2002, she advised Ms EW thus :

“I note your request; however, sorry to inform you that I cannot obtain one form my Division Manager of YMCA.

[The plaintiff] explained tome in her e-mail that first, she has no obligation to write the report, and secondly this report is meant for internal use of YMCA but not for student’s learning purposes.  Therefore, from her explanation, this report need not be discussed and signed by both parties.

Therefore, I regret to tell you that I cannot entertain your request.”

23. Ms EW had further contacted Ms To but to no avail.

E.  The defendant’s request

24. In about October 2002, Ms EW approached the defendant for her assistance in obtaining a copy of the Report.  By then, YMCA had already rejected her application for pre-internship placements.

25. Taking up the matter, the defendant by email dated 25 November 2002 asked the plaintiff for a copy of the Report.  The plaintiff replied by email on 27 November 2002 that she or Ms EW should contact YMCA directly.  The defendant wrote back on 2 December 2002, which encapsulated the sense of frustration that she and Ms EW had :

“…In fact, [Ms EW] had requested to see a copy of [the Report],but was told by YMCA to contact you instead.  Are we perhaps on some kind of merry-go-round here?  Why don’t you give me the name and address of the contact person at YMCA and I will write directly to that person?”

Unfortunately, the plaintiff did not have the courtesy to respond.

26. By another email dated 4 January 2003, the defendant asked the plaintiff again for the information of the person to be contacted at YMCA.  She wrote that she was under considerable pressure to seek closure to the case and had so far managed to keep everything “under wrap” but needed to move quickly before things got out of control.

27. To this email, the plaintiff replied by email on 11 January 2003.  She apparently felt offended and was not particularly helpful.  She did not provide the information requested because she thought that Ms EW should know whom and where to contact.  She reiterated that she had no obligations to the defendant, Ms EW or UNE and asked the defendant to be courteous on her further requests for assistance.  She also suggested that Ms EW to phone her directly for her needs and problems.  She was more than willing to assist Ms EW in a proper and professional way.

28. This prompted a reply by email from the defendant on the following day, reiterating that Ms EW came to her via official channels for assistance verbally and in writing.  The defendant said she would deal with the matter as she saw fit and would somehow seek closure to this matter.

F.  The Letter

29. What the defendant then did was that she wrote a letter dated 22 January 2003 to Ms Wu (“the Letter”), copied to :

(1) Dr F.C. Hu, Administrative Vice-President, SYC (“Dr Hu”);

(2) Ms Ann Moir-Bussy, Coordinator, Master’s in Counselling Programme, UNE (“Ms Moir-Bussy”); and

(3) Dr Jeanne Madison, Head, School of Health, UNE (“Dr Madison”).

30. Regrettably, the Letter did not close the matter as the defendant might have hoped.  A recipe for further disputes, it eventually became the very subject matter of this litigation.

31. The Letterread :

“[Ms EW]

I write with considerable concern with regards to the captioned individual and trust that you probably have some awareness of this case.

Allow me to recapitulate some of the salient facts of this case.  [Ms EW] is currently enrolled in the [UNE Programme].

To fulfill the requirements of this programme, [Ms EW] applied for internship placement at the Y.M.C.A. last year.  Her application was turned down.  This, of course, is a perfectly normal and acceptable situation.  However, the unusual part of the process was that [the plaintiff] (who I’m certain is known to you) provided at her own volition a reference report on [Ms EW] without any solicitation from [Ms EW] or any other parties concerned.

[Ms EW] approached [the plaintiff] and request to see the reference report in question but her request was denied.  [The plaintiff] told her to approach Y.M.C.A. directly for this report, but she was told at [sic] Y.M.C.A. that she had to obtain it from [the plaintiff].  [Ms EW], being placed on this merry-go-round was rendered completely helpless and came to seek my assistance as I am the Hong Kong Co-ordinator for the said programme.

I contacted [the plaintiff] and asked her for this report because I agree with [Ms EW] that she has the right to view whatever is written about her by her supervisor cum therapist because firstly, the material included in the report is derived from confidential sessions between [Ms EW] and [the plaintiff] and secondly, this report has either direct or indirect bearing on her application for internship at the Y.M.C.A.

My request to [the plaintiff] was denied as [the plaintiff] feels that she bears no obligation towards [Ms EW], [SYC], [UNE] or me.  She specifically indicated that I should approach Y.M.C.A. for this report.

In my conception or reality, this is actually a very simply and straightforward issue of profession ethics and courtesy.  [The plaintiff] has utilized information gleaned from her private, confidential and paid sessions with [Ms EW] to compile an unsolicited report on [Ms EW].  Perhaps [the plaintiff] has certain noble intentions behind her action.  Yet, [the plaintiff’s] intentions are not my concern here.  My focus is to ensure that [Ms EW] is treated ethically by being given the opportunity to view this report.

I trust that you will agree with my point of view and act as you deem appropriate.  I can be contacted at [xxxx-xxxx] or [yyyy-yyyy] if you wish to discuss this matter any further.  I also wish this [sic] take this opportunity to wish you good health as it has been many years since we last saw each other at Shu Yan.” 

(Parts italicized for the purposes of this judgment.)

32. Through further efforts, YMCA finally provided a copy of the Report to Ms EW in March or April 2003.

The Plaintiff’s Complaints

33. On 14 July 2003, the plaintiff commenced the present proceedings.  She found the italicized parts of the Letter (“the Objectionable Parts”) defamatory.  In the statement of claim, she first complained that the natural and ordinary meaning of the Objectionable Parts is :

(1)	She acted unprofessionally, unethically, and/or ignoably in providing YMCA with the Report about Ms EW (“the 1st Imputation”).
(2)	She provided the Report without solicitation and she did so deliberately with a view to jeopardizing Ms EW’s chances of being accepted by YMCA for internship (“the 2nd Imputation”).
(3)	She misused confidential information which was in her possession in compiling the Report, and she breached her duty of confidentiality towards Ms EW (“the 3rd Imputation”).
(4)	She treated Ms EW unethically by not giving Ms EW an opportunity to view the Report (“the 4th Imputation”).

34. The plaintiff next complained that she has been seriously defamed and injured in her character, credit, integrity and professional as a clinical psychologist and counselling consultant.

35. The plaintiff further claimed for aggravated damages on the ground that the publication of the Letter to other three recipients by copy was calculated to increase her mental pain and suffering and to aggravate injury to her dignity, pride and self-esteem.

Defence

36. In substance, the defendant raised the following defence :

(1) The Objectionable Parts do not bear any defamatory meaning as alleged or at all.

(2) Qualified privilege.

(3) Justification.

(4) Fair comment.

Malice

37. To meet the defence of qualified privilege and fair comment, the plaintiff alleged malice on the part of the defendant in publishing the Letter.  Among other things, the plaintiff alleged that the defendant’s dominant motive in publishing the Letter was out of jealousy, or to give vent to her personal spite and ill-will towards the plaintiff or to obtain for herself some private advantage. 

The Main Issues

38. From the pleadings, the following main issues emerge :

(1) Whether the Objectionable Parts bear the defamatory imputations as alleged.

(2) If so :

(a) whether the defence of justification is made out;

(b) whether the defence of qualified privilege is made out; and

(c) whether the defence of fair comment is made out.

(3) If the answer to Issue (2)(b) and/or Issue (2)(c) is in the affirmative, whether the defence is defeated by malice.

Essential findings of facts

39. In this Part, I set out the findings of facts that are essential to the main issues that I will have to determine.

A.  Truthfulness of the Letter

40. Factually, as the undisputed evidence demonstrates, the following matters contained in the Letter are true :

(1)	The plaintiff did conduct both supervision and therapy sessions with Ms EW in 2002.
(2)	Both kinds of sessions were private, confidential and paid.
(3)	When compiling the Report, the plaintiff based on impressions from both kinds of sessions.  She agreed that it would be impossible to tell which piece of impression came from which kind of session.

41. However, it is factually untrue that the plaintiff provided the Report without solicitation.  Quite to the contrary, Ms EW did request the plaintiff to do so.  It was upon Ms EW’s solicitation and hence implied consent and authorization that the plaintiff wrote and provide the Report to YMCA.

B.  The defendant acting in official capacity

42. I accept the defendant’s evidence and find that all along the defendant acted in her official capacity as the Hong Kong Coordinator of the UNE Programme in dealing with Ms EW, the plaintiff, YMCA and in writing the Letter.

C.  The defendant’s honest belief

43. The defendant described how Ms EW approached her for assistance thus.  In early October 2002, Ms EW called at her office at SYC without prior appointment and sought her assistance in her capacity as the Coordinator for a copy of the Report.  Ms EW did not show her any previous correspondence that she had with the plaintiff but simply told her that the plaintiff provided the Report without her knowledge.  This meeting prompted the defendant to write to the plaintiff by email.

44. On about 22 January 2003, the defendant had a dinner with Ms EW.  She showed the Letter to Ms EW for her comment.  Ms EW thanked her without making any correction.  The defendant then sent it out on the following day.

45. The defendant’s evidence is not challenged and there is no evidence to contradict her.  I therefore accept it.

46. Based on her evidence, I find that the defendant was acting under an honest belief that the plaintiff provided the Report without solicitation.  Such belief was instilled into her by Ms EW by what she said at the meeting in early October 2002 and how she reacted when the Letter was shown to her just before it was sent out.

D.  The defendant’s motive

47. The unchallenged evidence of the defendant on the genesis of the Letter is summarized below.

48. In her email to the plaintiff dated 4 January 2003, the defendant said she had managed to keep everything under “wrap” but she needed to move quickly before things got out of control.  (This had apparently offended the plaintiff.  She saw it as a threat.)  In her oral testimony, the defendant explained that Ms EW was then considering the possibility of referring the matter to the Privacy Commissioner of Personal Data.  She therefore had to act swiftly to close the case.

49. When the plaintiff did not supply the particulars of the contact person in YMCA, the defendant then asked MS EW for the details.  Ms EW told her to contact Ms Wu.  The defendant did telephone Ms Wu on several occasions but to no avail.  She was unable to contact Ms Wu over the phone.  She left messages about the need to talk about the Report.  But Ms Wu did not return her calls.  The defendant felt that a “stonewall” had been erected outside YMCA.  She therefore went to Dr Hu, SYC’s Vice-President, advising him of the situation, in particular Ms EW’s intention of referring the matter to the Privacy Commissioner.  Dr Hu told the defendant to write to Ms Wu.

50. Based on the unchallenged evidence, which I accept, I find that the defendant wrote the Letter with a dominant motive to assist Ms EW to obtain a copy of the Report from YMCA.  Her motive was quite explicitly made known in the penultimate paragraph of the Letter where it was stated : “my focus is to ensure that [EW] is treated ethically by being given the opportunity to view [the Report].”  In fact, the plaintiff accepted in her oral testimony that if a student were to come to her in her official capacity as the Coordinator for such assistance, she would have written to YMCA.

51. Mr Leung, counsel for the plaintiff, submitted that the Letter was focused on the plaintiff and not on obtaining the Report.  The Letter did not explicitly asked for a copy of the Report.  However, Ms Wu through the previous telephone messages left by the defendant, should have known that the defendant wanted a copy of the Report.  Further, as rightly pointed out by Mr Shum, counsel for the defendant, the contents of the Letter were all related to such request.  In the circumstances, while I accept that there are certainly better ways to draft the Letter, it does not necessarily follow that the defendant had any ulterior motive other than helping Ms EW to obtain a copy of the Report in her official capacity as the Hong Kong Coordinator of the UNE Programme.

E.  The need to send the Letter to the four recipients

52. There are four recipients: Ms Wu, Dr Hu, Ms Moir-Bussy and Dr Madison.  The plaintiff accepted, and I do as well, that it would be natural and logical for Ms Wu, acting on behalf of YMCA, to receive the Letter.

53. The undisputed evidence of the defendant that Dr Hu was aware of this incident relating to Ms EW and it was he who suggested the defendant to write to Ms Wu.  I find that in the circumstances, it was necessary for the defendant to copy the Letter to Dr Hu.

54. As to the other two recipients in UNE, the tenor of the defendant’s evidence is this.  When she took over the Department from the defendant, there was a simultaneous change in personnel coordinating the Programme in UNE.  The new teams on both sides looked at the status of the UNE Programme and were shocked to discover that there was a significant fall in the number of students and their progress with the Programme in some cases was alarming.  They therefore went through the students one by one and discussed what was happening to each of them.  Ms EW was naturally one of them.  And Ms EW was at that time raising complaints about the Report.  They were concerned about her progress.  It was in these circumstances that the defendant copied the Letter to Ms Moir-Bussy and Dr Madison. 

55. I accept the defendant’s evidence and find that it was in the circumstances necessary for her to copy the Letter to Ms Moir-Bussy and Dr Madison.

56. After Ms EW had obtained a copy of the Report in early March 2003, the defendant only kept Dr Hu informed but not her counterparts in UNE.  It was because Ms EW had already told her that she would not be interested in the UNE Programme any more.  As Ms EW was no longer a student of the UNE Programme, it was not necessary to keep them informed.  I accept the defendant’s explanation.  I do not consider the failure to do so would cast any doubt on the defendant’s genuine intention of copying the Letter to them, as contended by Mr Leung.

F.  No malice

57. The plaintiff complained that the defendant published the Letter with malice.  The particulars in the Reply can be grouped under several heading.

58. First, the defendant’s dominant motive was out of jealousy, or to give vent to her personal spite and ill-will towards the plaintiff or to obtain for herself some private advantage.  In light of my earlier finding on the defendant’s dominant motive in writing the Letter, this allegation must fail.  The plaintiff in her evidence referred to several incidents which showed the defendant’s animosity towards her.  Such incidents included the defendant not greeting her at a graduation dinner in 2001, the defendant’s lack of facial expression when Dr Hu expressly thanked the plaintiff for her contributions to the UNE Programme in the defendant’s presence at the 2002 graduation ceremony, addressing her as “Suk Han” in the email OF 25 November 2002 as if the defendant was looking down on her.

59. I do not wish to dwell on these allegations.  Suffice it to say that I have considered them carefully together with Mr Leung’s submissions.  I cannot but agree with Mr Shum’s submission that such incidents are trivial, irrelevant, founded on the plaintiff’s pure conjecture and grossly subjective feelings.  They cannot support any animosity as alleged.

60. Second, the defendant must have known that by sending the Letter to YMCA, UNE and SYC, the plaintiff’s reputation and her prospect of working in or with these institutions would be jeopardized.  In light of my earlier ruling on the defendant’s motive and the need to send the Letter to the four recipients, this allegation must fail.

61. Third, the defendant could not have an honest belief that the plaintiff in writing the Report had utilized information gleaned from her private, confidential information and paid sessions with Ms EW.  This must fail in light of the undisputed evidence that it was in fact true.

62. Fourth, the defendant did not copy the Letter to the plaintiff and the plaintiff was deprived of a chance to answer the allegations.  The main objective of the Letter, as I have found, was to obtain a copy of the Report from YMCA for Ms EW.  Not copying the Letter to the plaintiff alone is not evidence of any malice.

63. Fifth, the ultimate paragraph of the Letter urged YMCA to “act as you deem appropriate”.  The defendant was inviting YMCA to no longer have trust in the plaintiff or the plaintiff’s professionalism.  Again, in light of my earlier ruling on the defendant’s dominant motive, this allegation must fail.  When the Letter is read in the circumstances, I do not think it bears such invitation.

64. In the course of his final submissions, Mr Leung sought to rely on the defendant’s conduct after the publication of the Letter to infer malice.  By a letter dated 21 March 2003, the plaintiff told the defendant that Ms EW did request the Report by email dated 10 July 2002.  But the defendant did not bother to follow it up or offer an apology.  The defendant’s conduct is regrettable but when considered with all the evidence in the round, it does not, in my view, capable of showing malice at the time of publishing the Letter.

65. Mr Leung also sought to rely on the defendant’s insistence on the justification defence when it is clearly not maintainable.  For reasons that will become apparent below, I agree that the defence of justification is not maintainable.  But when this matter is considered against all the evidence, I am unable to accept that it alone is capable of supporting an inference of malice.

66. For the above reasons, I find that there is no malice as alleged.

67. With these essential findings in mind, I now turn to the main issues.

Issue 1 : Whether the Objectionable Parts are Defamatory?

A.  The law

68. Broadly speaking, words complained of may convey a defamatory imputation either of themselves in their natural and ordinary meaning or by reason of their collocation with some other matter, the circumstances of their publication, or some other extrinsic facts known to the recipients.  The latter case gives rise to innuendo.

69. Here, the plaintiff is relying on the natural and ordinary meaning of the Objectionable Parts only.  The following propositions are apposite :

(1)	The natural and ordinary meaning of words refer to the meaning in which reasonable people of ordinary intelligence, with the ordinary person’s general knowledge and experience of worldly affairs, would understand them : Gatley on Libel and Slander, 10th edn, para.3.16 at pp.93-94.
(2)	It is necessary to take into consideration not only the actual words used but the context of the words : Nevill v. Fine Arts [1897] 1 AC 68.  Any reasonable reader would read the words with reference to the circumstances in which they were written and with reference to the context in which they appear.

B.  The sting

70. The sting of the Objectionable Parts lies in the assertion that the plaintiff disclosed confidential information relating to Ms EW obtained from private therapy and supervision sessions in the form of the Report, without authorization by Ms EW and indeed without solicitation from any person.  Such conduct is no doubt a serious breach of trust, confidentiality and professional ethics and integrity expected of the plaintiff as Ms EW’s ex-supervisor and therapist.

71. Further, the Report was made in connection with Ms EW’s application for internship with YMCA.  The assertion that plaintiff provided it without solicitation, highlighted to be an unusual feature, reasonably bears the connotation that she did it with a view to jeopardizing Ms EW”s application with YMCA.

72. In my view, the Objectionable Parts will definitely tend to lower the plaintiff in the estimation of the community and hence defamatory.

C.  Mr Shum’s arguments

73. Contending the Objectionable Parts are not defamatory, Mr Shum took a number of points.

74. First, Mr Shum submitted that the defendant wrote the Letter in her official capacity as the Hong Kong Coordinator of the UNE Programme and she was merely trying to obtain the Report for Ms EW.  This I fully accept : see paragraph 42 above.  However, I am unable to accept Mr Shum’s submission that in the circumstances any suggestion that the Letter might damage the plaintiff’s reputation is unrealistic.  If the Letter is defamatory, it is so regardless whether the defendant wrote it in her official capacity.  Her own reasons for writing it were simply irrelevant to the question if it is defamatory.

75. Second, Mr Shum submitted that the meaning contended by the plaintiff was unnatural, stretched, artificial.  He attempted to make good this submission by reading the Letter paragraph by paragraph.  I do not propose to repeat in detail Mr Shum’s submissions.  Suffice to say that I have carefully considered them.  With respect, I find Mr Shum’s reading of the Letter too artificial and restrictive.  It ignores the overall effect and tenor of the Letter.  I am unable to accept his approach to the Letter and his way of reading it.

C.  Conclusion

76. When the Objectionable Parts are read with the sting, which I have identified in paragraph 70 above, the 1^st to the 4^th Imputations all arose as part of their natural and ordinary meaning.  And I so find.

Issue 2(a) : WHETEHR THE DEFENCE OF Justification IS MADE OUT?

77. That brings me to the defence of justification.

A.  The law

78. The law is trite.  To make out the defence of justification, the defendant must prove that the defamatory imputation is true.  It is not enough for her to prove that she believed that the imputation is true : Gatley, para.11.4 at p.270.

B.  Reliance on honest belief

79. In the Defence, the defendant seeks to justify all the imputations.  But in her witness statement and in her oral testimony, the defendant readily accepted that factually, it was wrong to say that the plaintiff provided the Report without solicitation.  In other words, the defendant is unable to justify the sting arising from this false statement and the ensuing imputations.

80. In essence, the defendant relies on her honest belief that what Ms EW had told her was true.  I have already found that she did have such honest belief : see paragraph 46 above.  But sadly, what Ms EW said was untrue.  The defendant’s honest belief is no justification.

C.  Mr Shum’s arguments

81. Mr Shum however took two points.  First, in relation to the 2^nd Imputation, he argued that it could not reasonably be read into the Letter a saying by the defendant that the plaintiff was deliberately doing so with a view to jeopardizing Ms EW’s chance of internship.  I have already ruled that such a reading is in fact reasonable: see paragraph 70 above.  In any event, it is not an answer to the sting caused by the untrue statement that the plaintiff provided the Report without solicitation.

82. Mr Shum next prayed in aid of section 26 of the Defamation Ordinance, Cap.21, which provides :

“In an action for libel or slander in respect of words containing 2 or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not provide to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.”

83. He argued that the untrue statement did not materially injure the plaintiff’s reputation.  For the sting was neutralized by the “antidote” : “Perhaps [the plaintiff] has certain noble intentions behind her action.  Yet, [the plaintiff’s] intentions are not my concern here.”

84. I am unable to accept this argument.  I agree with Mr Leung’s submission that if anything, those remarks are sarcastic and will only add venom to the sting.

D.  Conclusion

85. For the above reasons, I rule that the defence of justification fails.

Issue 2(b) : whether the defence of Qualified Privilege is made out?

86. I now come to the major defence, which is qualified privilege.

A.  The law

87. The law may be summarized thus.

88. At common law, the defence of qualified privilege recognizes that there are certain circumstances in which a person may make defamatory statements yet without attracting liability on grounds of public policy and convenience.  The person is protected if the statement is fairly warranted by the occasion, that is, within the scope of the purpose for which the law grants the privilege and so long as it is not shown that the statement is made with malice, that it, with some indirect or improver motive or knowing it to be untrue, or with reckless indifference as to its truth : Gatley, para.14.1 at p.379.

89. Generally speaking, it is the occasion, as opposed to the publication, that attracts the privilege.  And the occasions that give rise to qualified privilege can neither be catalogued nor rendered exact.  But they can be very broadly divided into two categories, although one must bear in mind that these two categories are imprecise and may overlap.  The first category is cases where the maker of the statement has a duty (whether legal, social or moral) to make the statement and the recipient has a corresponding interest to receive it (“the duty-interest category”).  The second category is cases where the maker of the statement is acting in pursuance of an interest of his and the recipient has such a corresponding interest or duty in relation to the statement, or where he is acting in a matter in which he has a common interest with the recipient : Gatley, para.14.6 at p.384. 

90. Whether for the purposes of qualified privilege in the duty-interest category a duty on the part of the maker to make the publication exists is for the court to determine.  While it is not difficult to determine whether there was a legal duty to make the publication, the great difficulty in defining what constitutes social or moral duty has long been recognized : see Gatley, para.14.10 at pp.388 and 399.  But it would appear from the authorities cited by Gatley, ibid. that the court would apply the standard of the ordinary reasonable man and ask whether a duty, moral or social, was recognized by him in the circumstances.  If so, a moral or social duty, as the case may be, would arise.

91. In considering whether an occasion was privileged, the court will regard the alleged libel and will examine by whom it was published, to whom it was published, when, why and in what circumstances it was published, and will see whether these things established a relation between the parties which gives rise a social or moral right or duty, and the consideration of these things may involved the consideration of questions of public policy : James v. Barid, 1916 S.C. (H.L.) 158, per Earl Loreburn at pp.163-164. 

92. As regards corresponding interest, the word “interest” is not used in any technical sense, but in the broadest popular sense, “as when we say that a man is ‘interest’ in knowing a fact — not interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news” : Howe v. Lees (1910) 11 CLR 361, per Higgins J at p.398. 

B.  Duty to publish

93. For present purposes, it is necessary to just look at the duty-interest category.  I refer to my earlier ruling on the defendant’s dominant motive in writing the Letter and the need to sent it to the four recipients.

94. On the duty aspect, I find that that defendant was obviously under a social/moral duty to write the Letter in her official capacity of the Hong Kong Coordinator to help Ms EW who specifically sought her assistance over the matter.  In fact, facing Ms EW’s threat that she might refer the matter to the Privacy Commissioner, the defendant must acted swiftly before the matter was blown up disproportionately.

C.  Interest to receive

95. On the interest aspect, I find that each of the four recipients had a corresponding interest in receiving the Letter.  The position of Ms Wu is obvious.  So is Dr Hu, to whom the defendant would have to report.  Ms Moir-Bussy and Dr Madison were the persons with UNE coordinating the UNE Programme.  They were aware of Ms EW’s case.  They obviously needed to be apprised of the progress.  They thus had an interest to receive the Letter.

D.  Conclusion

96. Accordingly, I rule that the defence of qualified privilege is established, subject to the question of malice.

Issue 2(c) : WHETHER THE DEFENCE OF Fair Comment IS MADE OUT?

A.  The law

97. In essence, to make good the defence, the comment :

(1) must be on a matter of public interest;

(2) be recognized as comment, as distinct from an imputation of fact;

(3) be based on facts which are true or protected by privilege;

(4) explicitly or implicitly indicates, at least in general terms, what the facts on which the comment was made; and

(5) be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views are.

See Albert Cheng v. Paul Tse [2000] 3 HJKLRD 418, per Lord Nicholls at p.419C-E.

98. When a matter is such as to affect people at large, so that they may be legitimately interested in or concerned at what is gong on or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment : Gatley at para.12.26 at p.312.

B.  No public interest

99. For present purposes, it is sufficient to just look at the public interest requirement.

100. Mr Shum agued that two issues of public interest arose in the present case.  He first submitted that, from an educational point of view, the matter related to a student of a master degree being treated fairly such that her progress was hindered.  I am unable to see how Ms EW’s progress under the UNE Programme would affect the public at large.

101. Mr Shum next submitted that from personal data and privacy point of view, Ms EW was denied assess to information on her which affected her interest in studies.  Again, I am unable to see how the public at large would be affected by what happened to Ms EW over the Report.

102. Accordingly, the defendant fails to meet the public interest requirement.

C.  Conclusion

103. I therefore rule that the defence of fair comment fails.

Issue 3 : whether the defence of qualified privilege is defeated by Malice?

104. I finally come to the question of malice.  If established, it will defeat the defence of qualified privilege.

A.  The law

105. In order to establish malice, the plaintiff has to prove that the defendant had dominant improper motives or did not honestly believe in what she said : see generally Gatley, para.16.3 at pp.510-511.

B.  No malice

106. In light of my factual findings on this topic, I find that the plaintiff has failed to prove malice as alleged.

Orders

107. For the above reasons, I will dismiss the plaintiff’s claim.  I will also make an order nisi that the plaintiff do pay the defendant’s costs of the action, to be taxed if not agreed.