WAN CHIU YING v. TAM WAI CHU

HCA 3479/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3479 OF 2002

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J U D G M E N T

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1.  This is a defamation action.

2.  The Plaintiff used to work as a workman II in Kwai Chung Technical Institute (now renamed Hong Kong Institute of Vocational Education, Kwai Chung Campus), run by the Vocational Development Council.  The Defendant used to be the principal of the Institute.

3.  In April 1995, the Plaintiff had a minor work-related accident, and was paid employees’ compensation in the sum of $39,997.44.

4.  On 4October 1996, the Plaintiff was apparently injured in another accident while carrying out work at the Institute.  He claimed employees’ compensation.  The claimed accident was doubted by the institute management.  After investigations, a report of the accident, written by the Defendant as principal, concluded that:

“From the evidence collected, Mr Wan was jumped down (probably with intention) with his feet reached floor first and then fell onto the floor rather than “fell down while hanging a curtain” as claimed by him.  Mr Wan’s motive and real intention are difficult to judge.  However, he gave so many false statements in his complaint letter of 8 October 1996 could affect his entitlement under the Employee’s Compensation Ordinance.  P/KCTI  [i.e. the Defendant] considered this as a very serious misconduct and recommended that discipline action be initiated against Mr WAN Chiu-ying.”

5.  By another report also written by him, the Defendant proposed to the Headquarters of the Vocational Development Council to take disciplinary actions against the Plaintiff, in respect of a number of matters, i.e. undertaking outside work without prior written consent during various periods of time (including the period of sick leave granted in the 1995 accident), threatening his supervisor, giving false statements about the accident on 4 October 1996, making untrue accusations against his supervisor, erecting some illegal structures at the institute premises and refusing to remove the same in compliance with verbal instructions, persistent failures to comply with instructions from his supervisor, and failing to attend meetings requiring group work.  That report also doubted the genuineness of the 1995 accident.

6.  On 4 March 1997, the Plaintiff attempted to commit suicide at home.  He was rescued in time.  Allegations were allegedly made by the Plaintiff’s wife to newspaper reporters against the Institute, for contributing to the suicide attempt of the Plaintiff.  Reporters visited the Institute in the afternoon of the same day and interviewed the Defendant.  On the following day, i.e. 5 March 1997, various newspapers carried reports of the attempted suicide, the allegations made against the Institute and what the Defendant purportedly said during the interview.  In particular, the Apple Daily, Hong Kong Daily News and Sing Pao Daily News all published such reports.

7.  The relevant parts of the reports carried in these three newspapers read:

“據葵涌工業學院院長譚偉珠表示，自殺獲救校役，早有自殺前科，且曾因欠債被財務公司致電學校向他追債，故不排除有人圖索工傷賠償還債，他強調，若該校役今次工傷事件，一旦發現有人瞞騙，或藉故工傷騙取工傷賠償，校方會進行紀律處分” (Apple Daily)

“譚校長又透露：第二次的申報工傷事件發生於去年十月四日，申請索償，惟當時他在工人陪伴下以及一班學生面前工作，校方經將學生分為四組查問以及另一工人追查下，有證據顯示有人是自行在桌上跳下，而且非跌倒，故此當局已決定不向事主賠償。他又稱：最近校方的高級職員曾向他報告有人自稱欠債而致電到學校找溫，自此溫便告假, 一直未有上班。” (Hong Kong Daily News)

“葵涌工業學院院長譚偉珠表示，溫在十二年前開始在校內工作…及至九六年十月在掛窗簾時，他又稱跌傷，校方經向與他一同工作的辦公室助理及在場三十名學生了解事件經過時，懷疑有人假裝跌倒受傷，故拒絕代索工傷賠償。譚說，溫在七\八年前因欠下財務公司債務，而發生自殺事件，故相信今次自殺，亦可能是為逃避某些事情而作出” (Sing Pao Daily News)

8.  In this action, the Plaintiff says that the above statements were defamatory of him.  He claims that in their natural and ordinary meaning, or by way of inference, the above words meant and were intended to mean that the Plaintiff is not trustworthy or reliable (paragraph 3 of the statement of claim).  At trial, counsel for the Plaintiff contended that the statements meant that the Plaintiff had “pretended” to have been injured in the 1996 accident in order to claim compensation, and that the Plaintiff had owed debts to a finance company and a creditor had called the Institute for repayment.

9.  The Plaintiff says that the Defendant published of and concerned him the defamatory statements “to the newspapers” (paragraph 1 of the Statement of Claim).   At trial, the Plaintiff through counsel further relied on McManus v. Beckham [2002] 1 WLR 2982 to seek to recover as a consequence of that publication (to the reporters) the damage which he has allegedly suffered by reason of the repetition by the newspapers in their reports of the alleged defamatory statements, on the basis that the Defendant knew or should have appreciated that there was a significant risk that what he said to the reporters was likely to be repeated in whole or in part in the press.

10.  However, it should be noted that in neither the pleadings nor counsel’s submission at trial did the Plaintiff make his claim on the basis of the Defendant’s liability for the republication by the newspapers of the alleged defamatory statements as a separate cause of action.  

11.  The Defendant denies that the newspaper reports accurately reflected what he had told the reporters during the interview.  The Defendant says that what he told the reporters in the interview was true in substance and in fact.  Alternatively, the Defendant argues that what he said during the interview by the reporters was covered by qualified privilege.

12.  In reply, the Plaintiff argues that the Defendant said what he said in the interview out of malice.

13.  Both the Plaintiff and the Defendant gave evidence at trial.  I should say at once that I was much more impressed by the demeanour and evidence of the Defendant than that of the Plaintiff.  I have no difficulty in preferring the evidence of the Defendant to that of the Plaintiff, in case of conflict of evidence.

14.  In relation to the question of what has actually been said by the Defendant in the interview, I have no difficulty in accepting the Defendant’s evidence.  Here it should be remembered that the Plaintiff was not present during the interview – he was receiving treatment in hospital at the time.  The Plaintiff has not called the reporters to give evidence.  The Plaintiff basically relies on the newspaper reports and asks the Court to infer that the reporters have accurately reported what the Defendant has said in the interview.

15.  The Plaintiff also said in evidence that he had called and spoken to the editor of one of the newspapers in question, and was told that the newspaper had its source of information from the Defendant.  The editor has not been called to give evidence.  In any event, if the telephone conversation did take place as claimed, one would not expect the editor to tell the Plaintiff otherwise.  I can attach very little weight to this piece of evidence on the question of whether the reporters have accurately reported what the Defendant has said in the interview.

16.  The Defendant gave detailed evidence on why he gave the interview and what he said in the interview.  In gist, he explained that on the day of accident, he learned from the reporters that the Plaintiff’s wife was making accusations against the Institute to them and blaming the Institute’s handling of the 1996 accident and its refusal to pay employees’ compensation for the Plaintiff’s attempted suicide.  He said that without invitation, the reporters arrived at the Institute and asked him for an interview.  Initially, he was reluctant to give the interview, as he considered that it would be much wiser to give the response of the Institute (and the Vocational Development Council) in writing, which would however take time.  But the reporters kept asking him questions, and indicated that if he did not answer them there and then the newspapers might report that the Institute’s principal had no answer to the accusations.  He thought that such a reporting would cast a very negative light on the Institute as well as himself.

17.  The Defendant said that in those circumstances, he decided to give the interview and answer the questions of the reporters.  He said that he gave his answers carefully.  His purpose was to defend the good names of the Institute and himself.  He realised that in order to do so he would have to disclose information and details about the Plaintiff and the related accident.  He said that he was anxious to keep the same to a minimum because his purpose was to defend the Institute and himself, rather than to damage the reputation of the Plaintiff.

18.  The Defendant said he told the reporters that the alleged accident on 4 October 1996 took place while the Plaintiff was standing on a student’s desk to hang a window curtain in a classroom.  The Plaintiff claimed that he accidentally fell onto the floor and suffered head injury.  The alleged accident took place in front of a teacher and about thirty students.  As principal he directed that these students be randomly divided into four groups for interview by different pairs of senior staff members from different teaching departments, so as to find out what had happened.  The Defendant said that he told the reporters that from the investigations, he obtained evidence which showed that the Plaintiff jumped from the student’s desk onto the floor of his own volition, as opposed to falling from the desk by accident.  He also told the reporters that as the matter was still under investigation, the Institute was not able to process the employees’ compensation claim lodged by the Plaintiff.  The Defendant said that in answer to a hypothetical question posed by a reporter, he said that if it was proven that a staff member had made a false employees’ compensation claim, the Institute would take disciplinary action against him or her.

19.  The Defendant said that insofar as the newspaper articles reported what he had said in the interview differently, they were inaccurate.

20.  On the reason of the Defendant agreeing to give the interview in the first place, it was evidenced by an internal memo dated 5 March 1997 written by the Defendant.  The Defendant said that he wrote a substantive part of the memo on 4 March 1997 immediately after the interview.  The memo supported what the Defendant said on why he had agreed to give the interview.

21.  As I said, I have been impressed by the demeanour and evidence of the Defendant.  The Defendant struck me as a very meticulous, careful, conscientious and responsible person, who was very well experienced in the management of educational institutions.  I believe his evidence that initially he was reluctant to give the interview, but only agreed to do so eventually when he considered that his silence would lead to very negative reporting against the Institute and even himself.  I also believe his evidence that when he agreed eventually to give the interview in those circumstances, his purpose was to defend the Institute and himself, without any intention to discredit the Plaintiff for its own sake.  Indeed he said so in so many words in paragraph 2 of his memo dated 5 March 1997 (“in reply to the reporters, I stressed that I would confine myself to defend the Institute against the accusations and had no intention to discredit Mr Wan”).  He said he was careful in his choice of words when replying to the questions of the reporters.  I see no reason why he should have been other than careful in answering the questions of the reporters. And he was, in my judgment, quite capable of answering questions carefully – I believe he did.

22.  The Defendant accepted in evidence that during the interview he did tell the reporters that the Institute had received rude telephone calls asking to speak to the Plaintiff.  The caller(s) claimed to be from a finance company.  But he did not tell the reporters that the Plaintiff was in debt, or that it had any causal connection with his attempted suicide.

23.  The Defendant also said that during the interview, he never told the reporters that the Institute had already decided not to pay employees’ compensation to the Plaintiff.  All he said was that the matter was still under investigation and therefore the Institute was unable to process the employees’ compensation claim in the meantime.

24.  The Defendant also said that it was a reporter who mentioned in the interview that the Plaintiff had attempted to commit suicide before and who actually gave him the date of the previous occasion.  He denied that it was he who told the reporter about the previous suicide attempt, the reason for it or its connection with the second suicide attempt.

25.  It is not in serious dispute that the newspaper stories contained a number of mistakes, including the address of the Plaintiff, the number of letters that the Plaintiff had written prior to his suicide attempt, the Plaintiff’s age, the location of work of the Plaintiff’s wife, the length of service of the Plaintiff at the Institute, and the amount of employees’ compensation that the Plaintiff had received in relation to the 1995 accident.  Furthermore, if I were to accept the Plaintiff’s evidence that his wife had never spoken to the reporters or made any accusations or complaints against the Institute (– as has been alleged in the newspaper stories and by the reporters to the Defendant when they asked for an interview), the reports would have been grossly incorrect.  But on this point, I have no hesitation in rejecting the Plaintiff’s denial of his wife’s involvement.  From the evidence, I can see no reason why the reporters should have fabricated this piece of information in either the reports or in their request for an interview with the Defendant.  The inaccuracies in the reports themselves, relating to personal details of the Plaintiff or what the Defendant had said in the interview, are, in my judgment, of an entirely different nature and kind.

26.  On the totality of the evidence before me, I have no difficulty in accepting the Defendant’s evidence as to why he had agreed to give the interview in the first place and what he had said during the interview.  Taking a step back, given that the burden of proof lies with the Plaintiff, I am not satisfied that the Plaintiff has successfully proven that the Defendant had spoken the words that the articles in the newspapers attributed to him.

27.  This is fatal to the Plaintiff’s claim.  This is because according to the pleadings, the cause of action is based on the original publication to the reporters (paragraphs 1 and 5 of the statement of claim).  It concerns what the Defendant told the reporters in the interview, and the Plaintiff seeks to prove that by reference to what the reports said the Defendanthad said in the interview.  There is no alternative case based on what the Defendant said he had said in the interview.  Mr Chum, counsel for the Plaintiff, frankly accepted in final submission that his client runs no alternative case, and that in the event of the Court accepting the Defendant’s version of what had been said during the interview, his client’s case must collapse.

28.  Nor, as noted above, has the Plaintiff run an additional or alternative case based on republication of the alleged defamatory words by the newspapers.  In a republication situation, provided that other requirements are satisfied, the original publisher of a defamatory matter may be liable for a republication of the same so long as the substance and the sting of the matter as republished have not been altered.  What is important is the sense and substance of the (republished) defamatory matter, rather than the precise language used in the republication.  See Gatley on Libel and Slander (10^th ed.) para. 6.35 et seq. and in particular para. 6.37.  But in the present case, as republication is not relied on, the disparity between what the Defendant had told the reporters in the interview and what the newspapers had reported need not be gone into any further.  For the sake of completeness only, I would simply say that on the facts as found by me, even if republication were relied on as such and the Defendant were responsible for it, I would have found that the alterations of what the Defendant had said in the interview by the reporters/newspapers in the newspaper reports affected the sense and substance of what the Defendant had stated, and the Defendant should not be held responsible for the same.

29.  Given my findings above, for the reasons explained, the Plaintiff’s case must fail.

30.  But there is a further reason why the Plaintiff’s case must fail, and this is regardless of my finding on what has actually been said in the interview and whether republication has been relied on.

31.  In my judgment, the defence of qualified privilege applies in the present case.

32.  Gatley at paras. 14.49, 14.55 and 14.63 succinctly set out the relevant law thus:

“Reply to attack. Similar to the principle in the last paragraph is one whereby a person whose character or conduct has been attacked is entitled to answer such attack, and any defamatory statements he may make about the person who attacked him will be privileged, provided they are published bona fide and are fairly relevant to the accusations made.  “The law justifies a man in repelling a libellous charge by a denial or an explanation.  He has a qualified privilege to answer the charge; and if he does so in good faith, and what he publishes is fairly an answer, and is published for the purpose of repelling the charge, and not with malice, it is privileged, though it be false.  Mere retaliation, which cannot be described as an answer or explanation, is not protected, but the defendant is not required to be diffident in protecting himself and is allowed a considerable degree of latitude in this respect and the law does not concern itself with niceties in such matters.  The central difficulty here is to distinguish between mere retaliation and attacking the credibility of your opponent in legitimate self-defence.

…

Defence of principal’s interests. There is a general principle that an agent acting on behalf of his principal shares any privilege his principal has with regard to the occasion.  Similarly, there is an independent privilege for any statement made by an agent bona fide for the protection of the rights or interests, or in defence of the character of his principal.

…

Defamatory statement affecting third person

‘Where a defendant on an occasion which is privileged as between himself and some other person, makes some defamatory statement affecting a third person which has nothing to do with the privileged occasion, that third person would have a right of action against the defendant, and, as between him and the defendant, there would be no privileged occasion.’

The question whether a privileged occasion protects a statement involving the character of one who is only indirectly concerned in the charge made depends on its relevancy to the privileged part of the statement and the circumstances in which it was made.  Usually, if no attack or demand was made by the claimant and no inquiry was made about him, so much of the statement as concerns him will not be protected.  In particular circumstances this may not be true.  Thus, if in the reply to an attack it is necessary to bring in the claimant’s name in explanation, the publication will remain privileged.” (emphasis added)

33.  On the facts and evidence, I have no doubt that the Defendant gave the interview in order to protect the good name of the Institute (and the Vocational Development Council) as well as that of himself.  I have already set out the Defendant’s explanation for his agreeing to give the interview.  I have already said that I accept his evidence, which is evidenced by a contemporaneous memo written by him.  According to the reporters, the Plaintiff’s wife had made allegations against the Institute and blamed the Institute for her husband’s attempted suicide.  The reputation of the Institute was at stake, particularly when it is an industrial institute and the subject matter of allegation related to employees’ compensation in a work-related accident.  The reporters were obviously keen on the allegations of the wife and had indicated that they might well present a one-sided story to the readers of the newspapers if the Defendant should refuse to answer their questions.  More importantly, they also suggested that they would write in their articles that the Defendant as principal of the Institute had no answer to the allegations.

34.  In those circumstances, the qualified privilege plainly applies (subject to the question of malice).  That there may have been other or even better ways to handle the reporters or deal with the situation is neither here nor there.

35.  I do not accept Mr Chum’s argument that it was no responsibility or duty of the Defendant to answer the allegations or the queries of the reporters. Counsel said that that was the job of the Vocational Development Council.  The Defendant’s job as principal of the Institute, so counsel argued, was simply to refer the reporters to the council.

36.  As I said, I have no hesitation in rejecting the argument.  Allegations were made against the Institute.  As principal of the Institute in charge of its management, it must have been within the responsibility of the Defendant to answer the allegations.  That accords with the Defendant’s own evidence on this point, which I have no difficulty in accepting.

37.  Furthermore, according to the evidence, not only was the Institute under attack, the Defendant himself was indirectly under attack.  This is because the allegations were made against the Institute, or more correctly, the Institute’s management.  The Defendant was the principal of the Institute and in charge of its management.  The attack on the management was in fact an attack on the Defendant himself.

38.  In those circumstances, in my judgment, the defence of qualified privilege plainly applies to the occasion (subject to malice).

39.  The passages extracted above from Gatley also explain: first, why the defence applies to the Defendant in the present case insofar as he acted as agent of the Institute – in the defence of the principal (the Institute) against the attack; and second, why the defence applies notwithstanding that the allegations were not made by the Plaintiff but by his wife (whereas the allegedly defamatory words were directed against the Plaintiff himself who did not make the allegations or attack in the first place). 

40.  As has been explained in Gatley, supra, as principal of the Institute acting in defence of an attack against the Institute (the Defendant’s principal), the Defendant is protected by the defence.  Moreover, as I have also said, in my judgment based on the evidence, there was also an attack against the Defendant personally, in which case his defence against the attack is also covered by the privilege.

41.  Furthermore, on the facts, in order to answer the accusations of the Plaintiff’s wife, it was necessary for the Defendant to bring in the name of the Plaintiff in explanation.  In those circumstances, the privilege also applies: Gatley at para. 14.63 (supra).

42.  Again for the sake of completeness only, in my judgment, even if republication were relied on and the Defendant were responsible for it, the republication would have been covered by qualified privilege: c.f. Gatley at para. 14.51 (defence of an attack in the media by writing a reply to the media intending for its publication by the media).

43.  Of course, all this is subject to the plea of express malice by the Plaintiff, which if established would defeat the defence of qualified privilege.  The Plaintiff has the burden of proof in establishing malice.

44.  He gave evidence on malice and relied on principally two matters in support of his allegation of express malice, namely his complaint regarding an internal election held in March 1996 and another complaint arising from the alleged accident in October 1996.

45.  In relation to the 1996 election and the subsequent complaint, I have no difficulty in preferring the Defendant’s version of what had happened to that of the Plaintiff.  The Defendant’s version of what had happened during the meeting on 28 March 1996 was well evidenced by a detailed minutes of that meeting, which contradicted what the Plaintiff said had happened and been said in that meeting.

46.   However, the gist of the Plaintiff’s contention here lies not so much in what had been said in that meeting, but rather the grudges harboured by the Defendant against him arising out of that incident.

47.  This takes me to the second principal matter which related to the October 1996 accident, and in particular a brief meeting on 4 February 1997 at the office of the Defendant.  The Plaintiff essentially claimed that in that meeting, the Defendant told him that he would lose his job very soon and threatened him to be particularly careful with what he was going to say in an interview to be held at the headquarters after the Chinese New Year holidays so as not to jeopardise his pension position.  The Defendant also said that he was not afraid of being sued by the Plaintiff, as his son was a lawyer working in the (then) Legal Department.

48.  The Defendant denied the allegations at trial.  He said that he never harboured any grudges against the Plaintiff.  In fact, despite the discovery of the Plaintiff’s undertaking outside work during his sick leave period arising from the 1995 accident, he had not included it in the accident report, but had chosen to include it in the disciplinary action report, which would otherwise have led to much more serious consequences.

49.  He also said that after consultation with the headquarters, he had chosen to include other matters of complaint against the Plaintiff in the disciplinary action report, so as to “diversify” (as it were) the complaints and reduce the adverse impact and seriousness of the Plaintiff’s undertaking outside work during his sick leave period.  He said that the February 1997 meeting had nothing to do with the accident investigation, but was concerned with the forthcoming disciplinary inquiry.

50.  I have considered the evidence of the parties.  As I said, on the whole, I very much prefer the evidence of the Defendant to that of the Plaintiff, including the evidence on this aspect of the case.  It is quite clear that the Plaintiff was not a model employee in the Institute, nor was he the favourite staff member of the Defendant.  He was obviously causing difficulties and troubles at the Institute, and giving the management problems.  That explained the disciplinary action report.  But to elevate all this to malice in the context of the defence of qualified privilege is an entirely different matter.  The Defendant has explained why he eventually agreed to give the interview.  As he wrote in the contemporaneous memo, his purpose was to defend the Institute, rather than to discredit the Plaintiff.  It was written well before the present action.  In terms of proving express malice, I find that the Plaintiff has woefully failed to establish that the Defendant used the occasion of the interview for some purposes other than that for which the occasion was privileged, i.e. in defence of the attack against the Institute (and the Defendant).  As I said, the burden of proof lies with the Plaintiff.

51.  I have not been impressed by the Plaintiff’s evidence or demeanour in Court.  I have not found him to be truthful.  I do not believe his evidence on whether he had committed suicide before.  His attempt to explain away the stated reason in the medical certificate (poisoning) by saying that he had in fact suffered from food poisoning was unconvincing.  His denial that his wife had made the allegations and complaints to the reporters cannot be truthful.  His denial that he had borrowed money from finance companies was simply contradicted by his own witness statement – his attempt to draw a distinction between banks and finance companies did not impress me at all.  That prior to the attempted suicide the Institute had received very rude telephone calls claiming to be made by a finance company and asking to speak to the Plaintiff was well evidenced by the contemporaneous memo dated 5 March 1997 written by the Defendant.  And as I said, the Plaintiff’s account of what had happened in the meeting on 28 March 1996 was contradicted by the minutes of the meeting.  I have come to the conclusion that the Plaintiff’s evidence is not reliable and very little if any weight can be attached to his allegations against the Institute or the Defendant.

52.  But of course, my rejection of his plea of express malice is not based on that alone, but on the entirety of the evidence before me.

53.  On the entirety of the evidence before me, I have no difficulty whatsoever in concluding that the Plaintiff has failed to prove malice against the Defendant.

54.  In other words, the defence of qualified privilege succeeds.

55.  Justification is a non-issue in the present case.  Mr Poon, appearing for the Defendant, accepted in final submission that if the Court should find that the articles were accurate in reporting what the Defendant had said in the interview, he could not run a case of justification of what had been reported in the articles.  On the other hand, Mr Chum conceded for his client during final submission that if the Court should accept the Defendant’s version of what had been said by him in the interview, he had no pleaded case of defamation based on what the Defendant said he had said, in which case justification would not even come into the picture at all.  So either way, justification need not be dealt with.

56.  For the above reasons, I order that the action be dismissed.  Having heard the parties’ submissions on costs in advance, I order that the costs of the present action be paid by the Plaintiff to the Defendant, to be taxed if not agreed.  That order includes the costs thrown away by the adjournment of the trial in the morning of the first day due to illness of the counsel originally instructed to appear for the Defendant at trial (Miss Ngai) – I accept Mr Poon’s argument in relation to that adjournment and its (lack of) effect on the total costs of the trial.