WONG YIM MAN ANTHEA v. WONG HO MING FELIX

HCA 352/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 352 OF 2011

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JUDGMENT

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Introduction

1.  This is a defamation action brought by Madam Wong, a primary school teacher against her ex-colleague Mr Wong. Mr Wong altogether published six allegedly defamatory statements about Madam Wong concerning her work performance at CCC Hoh Fuk Tong Primary School (“the School”) from November 2010 to January 2011.

2.  These documents include:

(1) A report dated 4 November 2010 (“the 1^st Controversial Document”);

(2) A follow-up report dated 22 November 2010 (“the 2^nd  Controversial Document”);

(3) A report dated 20 December 2010 (“the 3^rd Controversial Document”);

(4) A report dated 19 January 2011 (“the 4^th Controversial Document”);

(5) An email dated 20 January 2011 (“the 5^th Controversial Document”); and

(6) An email dated 23 January 2011 (“the 6^th Controversial Document”).

3.  nbsp;    Madam Wong has already left the School and now teaches in another school. She asks for both injunctions and damages.

4.  Mr Wong opposes the claim. He essentially relies on the plea of justification and the defence of qualified privilege. In his written opening submissions, Mr Sham, together with Ms Yuen, appearing for Mr Wong, indicates that Mr Wong no longer relies on justification in respect of the 4^th, 5^th and 6^th Controversial Documents. In his pleading, he further advances a case of leave and licence granted by Madam Wong to publish such statements but it was subsequently abandoned in respect of the 2^nd and 3^rd Controversial Documents after close of evidence.

Background facts

5.  I first set out the undisputed facts to provide the context for the matters contained in the 6 sets of Controversial Documents.

6.  Madam Wong is a graduate of Hong Kong Education Institute. After her graduation in 1999, she had taught two other schools before she started teaching at the School in 2001. She was first employed as certified mistress (“CM”) and was promoted to be an assistant mistress (“AM”) in 2005. From September 2005 to August 2011, she also assumed the position of Director of Promotion (推廣主任) responsible for promoting the School for the purpose of recruitment.

7.  Mr Wong started his employment with the School as a primary school master in 2003. He was promoted to be an assistant primary school master (“APSM”) in 2008.

8.  The School is an aided primary school sponsored by the Hong Kong Council of the Church of Christ in China. At all material times, the principal was Mr Chan Chi Tuen (“Mr CT Chan”) and the deputy principal was Mr Lau Yu Kuen (“Mr YK Lau”).

9.  The School has its Incorporated Management Committee (“IMC”) incorporated pursuant to the Education Ordinance, Cap.279.

10.  In 2010/2011, there was an administrative committee (“AC”) to deal with the daily operation and administration of the School. It comprised the principal and the deputy principal and all the teachers except the CMs. Both Madam Wong and Mr Wong were members of the AC.

11.  There were four sub-committees to assist administration of the School. They included the Discipline & Counselling Committee, the Activities & Student Performance Committee (“ASPC”), the Curriculum Committee and the Human Resources & Administration Committee. Mr Wong was one of the heads of the ASPC and was in charge of extra-curricular activities at the material times.  

12.  Prior to the publication of the 1^st Controversial Document, Madam Wong and Mr Wong were close friends. After work, Mr Wong sometimes went to Madam Wong’s home to play mahjong. They together with the husband of Madam Wong, Mr Lau (and his wife) had a pleasure trip to Bangkok.

13.  They now turn out to be the arch rival of each other and insist that their disputes arising from their work at the School should be resolved at this trial set down for 13 days involving 10 factual witnesses including their former student and a parent. They did not hesitate to make accusations against each other. One of the pet topics of the parties is whether the workload of Madam Wong was heavy. At the trial, I repeatedly exercised my tight control of the admission of such evidence though voluminous documentary evidence in this regard has already found its way in the trial bundles. I do not think I can make an objective determination of this issue, which has an inherent element of subjectivity. Nor do I find this issue of much probative value to the relevant issues in dispute.

14.  The animosity of parties has been unnecessarily intensified by Mr Wong’s averment made under the particulars supplied pursuant to Order 82 r. 7 of the Rules of the High Court (“RHC”) in his pleading. With a view to mitigation of damages, Mr Wong avers that Madam Wong at all material times had a bad reputation as a school teacher. In response, Madam Wong adduces considerable evidence to prove her good reputation at the School. At the outset of the trial, Mr Sham expressly abandoned this plea.

15.  For the avoidance of doubt, the evidence adduced by the defence can hardly convince me that Madam Wong had a bad reputation generally prior to the publication of the Controversial Documents. All of Mr Leung who was the former principal of the School, Mr Ku and Mr Wong spoke highly of Madam Wong. So did her former student and a parent. I have no reason not to accept their evidence in this regard.  

General observations about Madam Wong and Mr Wong

16.  Both Madam Wong and Mr Wong struck me as intelligent and articulate persons. On the evidence I am satisfied that both of them had put in a lot of good effort in their work and had earned a lot of respects at the School. Both of them obvious prided themselves on their work and that may explain why Madam Wong was particularly aggrieved when Mr Wong levied criticisms on her work performance and attitude.   

17.  Mr Wong appeared to me to be a very serious person with a strict discipline. I find him to be an honest person overall speaking. That said, I do not accept that he could always see things in perspective without prejudice and judgment problems. He is very stubborn and rigid. He is less than emphatic. However, I do have confidence in his factual evidence generally despite one or two mistakes he made. When it comes to factual disputes, I prefer his evidence to that of Madam Wong.

18.  Madam Wong was not a bad witness on the whole but I find her to be less reliable. She was at times evasive under cross-examination and refused to accept the obvious.

The rift between Madam Wong and Mr Wong

19.  I shall confine my analysis of those accusations to those germane to the parties’ pleaded case. Not without reluctance, this court is going to deal with the parties’ disputes which are sadly no less pettier than those commonly arising among their students. 

20.  The rift between the parties was apparently sparked off by Madam Wong’s cancellation of a school choir programme in October 2010. This matter features prominently in all the Controversial Documents.  I should first make an enquiry of this incident.

21.  In regard to the school choir incident, I now set out the following undisputed evidence and incontrovertible documentary evidence:

(1) On 24 September 2010, Mr CT Chan issued a circular prepared by Madam Wong to the parents of his Forms 1 to 3 students to recruit new members for the school choir. The size of the choir was stated to be 50 persons. The express qualification requirements included a successful audition. Madam Wong was expressly identified to be the teacher-in-charge. She had previously organized and trained a school choir for three years. I accept her evidence that she had agreed with Mr CT Chan that she would take charge of the school choir for the year of 2010-2011.

(2) Ms Lau, appearing for Madam Wong together with Mr Fong, draws my attention to the fact that in the school choir for the year of 2008-2009, there were 50 participants and for the year of 2009-2010, there were 35.  I note that these two choirs were actually for the more senior students (Forms 4 to 6).

(3) I accept that there were only 22 applicants including 3 students having mood problems and learning impediments. I accept that according to the experience of Madam Wong, this was not enough to form a choir, especially given the fact that after audition not all of them would be qualified.

(4) On 14 October 2010, Madam Wong stuck a label on the handbook of each of those students who had submitted their application to be a member of the school choir. On the labels, it was printed:

“各家長注意,由於合唱團參加人數太少,故上學期合唱團將會取消。下學期會在招生,敬請家長留意。不便之處,敬請原諒。合唱團負責老師: 黃艷文主任”

(5) Mr Wong came to know about the cancellation of the choir from one Ms Fung who was the Subject Head of Music on 15 October 2010. Mr Wong then made enquires with Mr CT Chan, who told him that he had not been given any prior notice of the cancellation of the choir.

(6) On 22 October 2010, Mr Wong made enquiries with Madam Wong. Madam Wong confirmed that she had cancelled the choir.

(7) On 25 October 2010, Madam Wong, Mr Wong and Mr CT Chan had a meeting at the principal’s office to discuss the cancellation of the choir (“the 1025 Meeting”).

(8) After the 1025 Meeting, at 11:04 p.m., Madam Wong sent an email to the AC (“the 1025 Email”). The caption of the 1025 Email was “黃艷文因工作量過重未能訓練合唱團，請校長及行政會決定是否適合留任AM”. The email read:

“煩請就附件事宜盡快作出議決，謝！”

(9) The 1025 Email was enclosed with a two-page document written in the Chinese language. It was indeed a long document and basically Madam Wong explained her heavy workload and she was on the verge of collapse. She related what purportedly transpired at the 1025 Meeting. Allegedly both Mr CT Chan and Mr Wong insisted that there must be training in any event, that no matter how many students had applied the choir should be set up and that Mr CT Chan stressed that the job promised at the start of the school year must be performed regardless of what had happened. Madam Wong also explained that she for the time being shelved the choir activities and the most important reason was that there was a serious shortage of applicants.

(10) At the end, Madam Wong asked the AC to resolve at the next AC meeting whether she should remain to be an AM focusing on her administration and teaching duties and whether she should be demoted to the rank of CM so that she would whole-heartedly carry out her teaching and other extra curricular duties.

(11) Upon receipt of the 1025 Email, on or about 26 October 2010, Mr CT Chan had a meeting with Mr Wong. He asked Mr Wong to make a report in reply to the allegations of Madam Wong made in the 1025 Email.

(12) On 1 November 2010, a meeting of the AC was held and chaired by Mr CT Chan. The minutes of the meeting included this record:

“黃艷文主任電郵內容在行政會中不宜討論,估不再作討論,一切安排依原則處理。(黃艷文主任補充背景資料, 指出早年升主任時獲梁校長答應不用訓練合唱團, 為自己的合理期望, 未知校方何時更改政策,如明年不用做班主任時, 可考慮再行訓練。)”

(13) On 4 November 2010, Mr Wong circulated among the members of the AC his report, namely, the 1^st Controversial Document, on the contents of the 1025 Email. It contained the 1^st batch of allegedly defamatory statements.

(14) On 8 November 2010, there was another meeting of the AC chaired by Mr CT Chan. He reported that he had a discussion about the 1025 Email with the relevant teachers meaning Madam Wong and Mr Wong. Mr Wong made a request that Mr CT Chan should make a clarification and follow up the matters. Mr CT Chan replied that since Madam Wong by her 1025 Email asked for a discussion in the AC, he promised Mr Wong that this matter would be canvassed in the AC and Mr Wong would promptly make available his report, i.e. the 1^st Controversial Document to the members of the AC and it would be confidential in nature. 

22.  On the issue of the cancellation of the school choir, in light of the foregoing evidence and after a review of the parties’ conflicting evidence, I am able to make the following factual findings pertaining to the pleaded issues:

(1) I accept Madam Wong’s explanation that there were insufficient applicants to form a decent school choir and on this ground alone, I find that she had a sound reason to defer the commencement of the school choir to the second semester. This is so despite Mr Wong’s seemingly feasible suggestion that Madam Wong could have started the school choir first and waited for further recruits in the interim.

(2) I accept Mr Wong’s evidence that Madam Wong did not advance this reason as her main reason why she canceled the school choir at the 1025 Meeting. She was unable to tell Mr CT Chan and Mr Wong the exact number of applications received. Be that as it may, I accept that Madam Wong genuinely came to the conclusion that she had insufficient applications and it was a valid reason for her to cancel the school choir in the first semester.

(3) I accept that Madam Wong found her workload to be heavy. I believe Madam Wong would feel relieved when she did not have to work on the school choir in the first semester though she was expected to take up some other non-teaching duties after school instead. I also accept Mr YK Lau’s evidence that in late September 2010 Madam Wong complained to him that because of her workload she did not wish to proceed with the school choir. This does not mean that she cancelled the school choir for her own sake only. I do not think that she did so out of any dishonest motives.

(4) I do not believe that Mr YK Lau ever authorized, expressly or otherwise, Madam Wong to cancel the school choir on 13 October 2010. I prefer Mr YK Lau’s evidence to Madam Wong in this respect. I find hims to be a truthful witness.

(5) He explained to this court why he could not have given authorization to Madam Wong because of the unequivocal position of Mr CT Chan. Mr CT Chan had told him that he expected Madam Wong should resume her duties relating to extra-curricular activity in that school year. He could not have acted against the express expectation of Mr CT Chan.

(6) I accept his evidence that Madam Wong only informed him of the cancellation in the office of the School after notices had been given to the students. He also advised Madam Wong to inform Mr CT Chan immediately since it was he who issued the recruitment circulars, any notice of cancellation should be issued by him rather than Madam Wong.

(7) I cannot believe Madam Wong’s allegation. If she had been so authorized, there is no reason why she did not mention the alleged authorization in the 2015 Email. Such an authorization would be a complete answer to the core complaint of Mr CT Chan and Mr Wong.  If it ever existed, she could not be faulted. There is no reason why she mentioned this for the first time only after the commencement of these proceedings.

(8) This court is disappointed that she made up the alleged authorization. She even went so far to produce a receipt of payment for the dinner issued by the restaurant to lend credence to her false story.

(9) Ms Lau submits that Madam Wong would not be so foolish to put words into the mouth of Mr YK Lau knowing that he has become hostile to her and would testify against her. She could have easily lied that it was Ms Fung who gave her the authorization, knowing that Ms Fung would not be a witness.

(10) I am not persuaded by this submission. Madam Wong could not have expected Mr Wong would not take any action to verify such untruthful an allegation with Ms Fung. The fact that Ms Fung had not been involved in these proceedings at that time when Madam Wong made this allegation does not mean that Ms Fung would in any event not be available to testify for Mr Wong.

(11) In regard to the 1025 Meeting, I accept the evidence of Mr Wong as to what actually transpired thereat including the account he gave in the 1^st Controversial Document. If the account had been untrue, I believe Madam Wong should have raised objections to clean the air. I find it to be more probable that Mr CT Chan reprimanded Madam Wong for cancelling the school choir without any prior consultation and notification and Madam Wong made an apology to Mr CT Chan immediately. From this, I accept that it was indeed against the school discipline that Madam Wong cancelled the school choir without prior notification to the relevant personnel of the School. The requirement of prior notification was also confirmed by the evidence of Mr Ku, an ex-colleague of Madam Wong testifying for her, and Mr YK Lau. I have no reason to doubt their evidence in this regard.

(12) For completeness, I should deal with a dispute as to whether there was a clear written rule or policy that cancellation of extra-curricular activities required prior approval of the principal. Mr Wong referred to a document entitled “The Code & Guidelines of Teachers of the School”. It was not referred to at the trial. I could not find this document in the trial bundles.

(13) Instead, I could only find a teachers’ handbook. It did not contain any express provision concerning cancellation of extra-curricular activities. It only provided that teachers could not arrange extra-curricular activities without the consent of the School. Even absent express provision, I would accept that it is only logical that any cancellation of extra-curricular activities would require prior approval since they are school activities in nature and they are organized, arranged and take place in the name of the School.

(14) I accept that Madam Wong did explain to Mr CT Chan that there were insufficient applicants albeit she could not give the exact number of applications at that time. I accept that she could conclude that the recruitment was inadequate in her actual experience without an exact headcount. I believe that Madam Wong felt very aggrieved and took the opportunity to underscore her heavy workload to Mr CT Chan. Mr CT Chan therefore asked her to set out all her current duties so as to assess her workload.

(15) I do not accept that during the 1025 Meeting, Mr CT Chan and Mr Wong impressed Madam Wong that “school choir is indispensable no matter what”, “No matter how many members the school choir should be set up” and Mr CT Chan emphasized that for whatever reasons, teachers cannot be relieved of those duties agreed to be taken up in the beginning of the school semester (collectively “the Instructions”). If they had been so adamant about the immediate commencement of the school choir regardless of the shortage of applicants, they could have simply asked Madam Wong to give immediate notice to those who had applied again and tell them that they could take part in the school choir activities soon. There is no reason why they had agreed to wait until the second semester at all.  Indeed under cross-examination, Madam Wong said that Mr CT Chan indicated that he really wanted to have a school choir and he wanted to start it immediately. And he accepted her explanation and agreed to wait until the second semester.

(16) I should add that from an email of Mr CT Chan dated 5 January 2011, he did expect that Madam Wong should deal with the school choir without further delay in the second semester.

(17) Mr CT Chan and/or Mr Wong might have said in strong terms about their expectation of a school choir and the need to perform one’s promised duties. But this is a far cry from an imposition of the Instructions on Madam Wong during the 1025 Meeting.  

(18) I can understand that Madam Wong’s feeling was severely hurt. She thought she had contributed a lot to the School and had been an outstanding teacher. She felt very unhappy about the confrontation with Mr CT Chan particularly in the presence of Mr Wong, whom she believed to be in a lower position at the School. She was aggrieved by the reprimand of Mr CT Chan since after all she really had a sound reason not to set up the school choir in the first school semester.

(19) Thus, Madam Wong had the strong urge to write a lengthy document to the AC right after the 1025 Meeting and could not wait until the following morning to send it out close to the midnight so as to give vent to her frustration. She seemingly welcomed demotion in order to concentrate on her teaching and avoid extra-curricular activities. I do not think that her request was genuine. She just acted like a prima donna in my view.

(20) I have little doubt about the veracity of the evidence of Mr Wong that the 1^st Controversial Document was published to the AC for discussion under the direction of Mr CT Chan. It was first approved by Mr CT Chan and was amended as per his comments. It actually bore the stamp of Mr CT Chan and marked “confidential” and “no copy with authorization”.

(21) Lastly, I accept the evidence of Mr Wong and Mr PK Lau that given Mr Wong’s position in the ASPC, Madam Wong should be accountable to Mr Wong in relation to the extra-curricular activities of which she was in charge. Mr Wong could give his appraisal of her performance in carrying out such duties.

The 1^st Controversial Document

23.  Now I turn to the 1^st Controversial Document. It is a long letter consisting of 23 paragraphs written in the Chinese language. Madam Wong complains about 3 paragraphs only. A copy of the 1^st Controversial Document with the offending words underlined is annexed hereto marked Annexure 1. In this judgment, I adopt the English translations provided by Mr Sham. The English translations of the 3 paragraphs are as follows:

(1) Madam Wong made many a number of false representations in her 1025 Email.

(2) Madam Wong had never expressed to Mr Wong and the principal that she was subject to heavy workload, and had never discussed the work arrangement with the principal and Mr Wong. Without informing the principal. The master in charge of extra curricular activities and the master in charge of music affairs, Madam Wong unilaterally decided to “cancel the school chorus”. Madam Wong made a unilateral decision herself in circumstances where she had utterly no discussion with the representatives of the School, and this constituted serious violation of the discipline of the School.

(3) Madam Wong made a number of false representations in the 1025 Email. She failed to discharge her duties, distorting the truth and misleading others to form wrong impression about Mr CT Chan and Mr Wong. These constituted professional misconducts.

24.  Though in his pleading, Mr Wong denies the defamatory nature of these paragraphs, I agree with Ms Lau that they were clearly suggestive of the dishonesty of Madam Wong and her unprofessionalism as a teacher being irresponsible. In his closing submissions, Mr Sham submits that Mr Wong admits the defamatory meanings as pleaded by Madam Wong for the purpose of proving justification.

Justification

25.  However, with the factual findings set out above, I can conclude that the defamatory imputations in the 1^st Controversial Document set out above are true in substance and in fact.

26.  There were indeed misrepresentations in the 1025 Email. I do not accept such misrepresentations should include any of her descriptions about her workload. I could not accept the truth in her account of the 1025 Meeting. She sought to put Mr CT Chan and Mr Wong in a bad light, alleging them to have forced upon her the Instructions. She did not notify the relevant personnel before she decided to cancel the school choir and this was against the school policy.

27.  In the premises, I find that the defence of justification in respect of the 1^st Controversial Document is made out.

Qualified privilege

28.  Mr Wong relies on the defence of qualified privilege for all the 6 sets of Controversial Documents. The pleaded case of Madam Wong is that the 6 sets of Controversial Documents were published to Mr CT Chan and all members of the AC save the 2^nd and 3^rd Controversial Documents. The former was published to Mr CT Chan and the latter was published Mr CT Chan, one Ms Yim and all the music teachers of the School.

29.  The core contention of the defence is that Mr Wong duly lodged complaints about Madam Wong relating to the school affairs to the AC for discussion. One of the functions of the AC was to handle complaints and advise the principal accordingly.

30.  Madam Wong denies that the AC ever had the function to deal with complaints about teachers. On this basis, she denies that the Controversial Documents were published to the AC not on any privileged occasions.

31.  I find it convenient to have a review of the general principles here and then make my finding as to the propriety of Mr Wong’s lodging complaints about Madam Wong to the AC and the AC’s receipt of the same.

32.  I shall start with the following dictum of Lord Atkinson in Adam v Ward [1917] A.C. 309 at p.334:

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

33.  In Horrocks v Lowe [1975] AC 135, the oft-cited authority on qualified privilege, Lord Diplock said this 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.”

34.  In Cheng & Anor. v Tse Wai Chun (2003) 3 HKCFAR 339, in making a distinction between the defences of fair comment and qualified privilege, Lord Nicholls, after referring to Horrocks v Lowe, made the following observations:

“The rationale of the defence of qualified privilege is the law’s recognition that there are circumstances when there is a need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source: see Reynolds v. Times Newspapers Ltd [1999] 3 WLR 1010, 1017. Traditionally, these occasions have been described in semesters of persons having a duty to perform or an interest to protect in providing the information. If, adopting the traditional formulation for convenience, a person’s dominant motive is not to perform this duty or protect this interest, he is outside the ambit of the defence. For instance, if a former employer includes defamatory statements in an employment reference with the dominant purpose of injuring the former employee, the former employer is misusing the privileged occasion and this will vitiate his defence of qualified privilege.”

35.  Employees in a business, or employer and employee, have common interests in the success of the business, or the way in which it is carried on, and in the semesters and conditions of the employment relationship: Gatley on Libel and Slander (12^th ed) §14.47.

36.  With these principles in mind, I turn to the function of the AC. There is no written mandate of the AC. The unchallenged evidence is that Mr Leung formed the AC long before 2010. He retired in the summer of 2008. It is common ground that the AC deals with the general operational and administrative matters of the School and holds meetings on a weekly basis.

37.  Madam Wong’s case is that according to the guideline given by the Education Section of the Hong Kong Council of the Church of Christ in China on 29 June 2009, any complaint involving fellow teachers shall be dealt with by the principal and the result should be reported to the school supervisor. Hence the AC should not be involved.[1]

38.  I do not think that the guideline can provide a definite answer to the question as to the exact scope of duties and functions of the AC relating to complaints about teachers. Though on the fact of it, it is the principal who could make determination of such complaints, it does not mean that the AC has no duty/interest in such complaints. The AC may not be able to make any determination of such complaints and impose any sanction on the teachers under complaint, it can nevertheless take appropriate operational and/or administrative measures to remedy the situation and/or to improve operation and administration accordingly.

39.  All the members of the AC are teachers in the School. They have a common interest in the way in which the School is operated and whether there are any matters obstructing the operation of the School. Any allegations of misconduct of the teachers in the School should be a matter of concern to the AC and its members should have an interest in such allegations.

40.  On the other hand, Mr YK Lau’s evidence in his witness statement is that matters relating to complaints against teachers or their work performance will be discussed and dealt with by the AC. He asserts that this can be seen in various meeting minutes of the AC. The minutes available to me, however, do not support his contention. He was not cross-examination on this.

41.  I am inclined to accept his evidence. As pointed out, he impresses me as a reliable witness. He was deputy principal at the material time and he attended the AC meetings in such a capacity. He should know very well about the general proceedings of such meetings and his evidence should be preferred.

42.  I am aware of the evidence of Madam Wong and Mr Ku who is also a member of the AC that the AC never discussed any complaint against teachers during its meetings. I have perused all the meeting minutes of the AC in the trial bundles and I could not find any discussion of complaints about teachers save one mentioned by Mr Wong.

43.  Mr Wong relies on that complaint to show that the AC dealt with complaints about teachers as well. It was recorded in the minutes of the AC meeting held on 1 February 2010 prepared by one Mr Chung, his colleague. There Mr Wong mentioned about some school staff complained to him about Mr Chung relating to his distribution of the janitors arrangement table. However, due to time constraint, it was recorded that this matter would be discussed in the next AC meeting.

44.  At least, it can be shown that no objection was raised to Mr Wong’s proposed discussion about the complaint and that the AC was prepared to discuss the same later. Whether it was actually discussed subsequently is another matter.

45.  Further, I am aware of Madam Wong’s contention that the complaint was raised by Mr Wong and that if the AC were to deal with the complaint about Mr Chung, the focus would be on the proper job distribution among school janitors and would not be on any punitive actions against Mr Chung.

46.  This is exactly my view of the function of the AC. So long as the subject matter of the complaints concerned the operation or administration of the School and not mere personal disputes between teachers, Mr Wong, as a member of the AC, must have a duty/interest to make and the AC as the operational and administrative body of the School must have a duty/interest to receive such complaints.  

47.  Even if no other complaints about teachers was discussed in any AC meetings, for the reasons given above, I am still of the view that Mr Wong had a duty/interest to communicate to his fellow AC members his complaints about Madam Wong and the AC members did have a corresponding duty/interest in receiving such information of his complaints in accordance with the legal principles cited above.

48.  More importantly, it was Madam Wong who in the 1025 Email invited the AC (and even all the teachers) to give an assessment of her work ability for the purpose of a determination of whether she should be demoted to CM. She suggested that the outcome should then be submitted to the IMC for its final determination.

49.  In the circumstances, it really lies ill in the mouth of Madam Wong to say that the AC did not have to receive any comment on her work performance/attitude.   

50.  Returning to the 1^st Controversial Document, in view of all the circumstances leading to the publication of the 1^st Controversial Document to the AC including (1) Madam Wong’s invitation to the AC (including Mr Wong) for an assessment of her work performance in the 1025 Email, (2) the position of Mr Wong (3) the instructions of Mr CT Chan (4) the nature of the 1^st Controversial Document, (5) the functions of the AC and (6) the interest of the members of AC, I accept that the 1^st Controversial Document was published on a qualified privileged occasion.

51.  I have gone through the particulars of malice in the Reply. None of the matters pleaded is borne out by evidence in light of my factual findings above. I find there is no malice proved to defeat Mr Wong’s defence of qualified privilege.

52.  For completeness, I do not think that the defence has come anywhere near to make out his pleaded case of leave and licence. On the evidence, I am not convinced that Mr Wong published the 1^st Controversial Document in accordance with the school internal complaint procedures in the first place.

53.  To sum up, I can further conclude that in any event, the publication of the 1^st Controversial Document is protected by qualified privilege and the claim of Madam Wong about from this document must fail.

The 2^nd Controversial Document

54.  On 22 November 2010, Mr Wong sent an email to Mr CT Chan enclosing a report entitled “跟進合唱團事宜進展” (Follow up the development of the school choir incident) and it was the 2^nd Controversial Document.

55.  According to the contents of the 2^nd Controversial Document, which consisted of eight paragraphs, it was simply a follow-up report made to Mr CT Chan regarding the cancellation of the school choir.

56.  The pleaded case of Madam Wong is that the first five paragraphs of the 2^nd Controversial Document including introductory matters were defamatory of and with reference to her.

57.  A copy of the 2^nd Controversial Document with the offending words underlined is annexed hereto marked Annexure 2. The pleaded meanings of the selected paragraphs are merely paraphrases of the same.

58.  In those paragraphs, Mr Wong further reported to Mr CT Chan that there were parents making enquiries about the school choir and in particular two parents felt very unhappy about the cancellation of the school choir and complained about the administration of the School. These two parents allegedly used strong language in their complaint against the School. No reference was made to Madam Wong however.

59.  The only two references to Madam Wong were about her unauthorized cancellation of the school choir and the fact that she had not yet set up the school choir. For the reasons given above, I accept the case of Mr Wong that Madam Wong in fact cancelled the school choir without giving prior notice to the relevant personnel. She could not therefore make any complaint about the former. For the latter, it was an undisputed fact and also I cannot see how it was defamatory of her.

60.  In respect of the parents’ complaint about the School, I cannot understand how it could be referable to Madam Wong and defamatory of her.

61.  The two parents not unsurprisingly marked such a serious approval about the cancellation of the school choir, to a degree similar to that of Mr Wong. I am not sure whether Mr Wong had shared his feeling with these two parents.

62.  From an email dated 12 July 2012, Mr Wong explained to the school supervisor that he once decided to make them anonymous so as not to prejudice the interest of the children at the School. However, in view of the challenge of Madam Wong, he finally disclosed the identity of the three parents to the School after the commencement of these proceedings.  He felt very sorry about the disclosure, which after second thought, was inappropriate. Mr Wong gave a hard copy of the contents of the email to each of the three parents through their children (and the chairman of the Parents Teacher Association) and they acknowledged receipt of the email over the phone. There is no evidence that any of them ever raised objections to the contents of the email.

63.  Unfortunately, considerable time was spent on cross-examining Mr Wong on the email about certain minor differences between the two copies of the email in respect of the display of the message information. I accept Mr Wong’s explanation for the small differences. At last, Mr Wong showed the email on the computer to the legal team of Madam Wong and this sufficiently put a full stop to the issue.  

64.  On the other hand, Mr YK Lau’s evidence is that one of these two parents who was a school staff told him that he was relieved that Mr Wong assured him that his identity would not be disclosed for the purpose of this litigation. There is no reason why I should not accept his evidence.

65.  I agree that the parents should not be involved in this litigation. In my view, Madam Wong’s claim arising from their purported complaints about the School is problematic to say the least.

66.  In light of the foregoing matters, I accept Mr Wong’s evidence that the complaints of the two parents were genuine. His oral evidence on this issue was clear with precise particulars and was corroborated by the evidence of Mr YK Lau, another truthful witness. I do not accept that they were mere fabrications as alleged by Madam Wong.

67.  In the result, I find that the defamatory implications of the 2^nd Controversial Document are justified.

Qualified privilege

68.  In any event, Mr Wong published the 2^nd Controversial Document on a clearly qualified privilege occasion to Mr CT Chan. Mr CT Chan asked Mr Wong to follow up the cancellation of school choir matter and the matters in the 2^nd Controversial Document arose from the sane incident. Moreover, given the factual findings above, the defence is not defeated by any malice. Madam Wong’s claim based on this 2^nd Controversial Document must fail.

The 3^rd Controversial Document

69.  Now I turn to the 3^rd Controversial Document, which was a report published to Mr CT Chan and all the music teachers including Ms Cheng, Ms Ting, Ms Fung and another teacher Ms Yim in her capacity as Art Supervisor (藝術總監). It was entitled “就合唱團及牧童笛訓練之書面報告”.

70.  A copy of the 3^rd Controversial Document with the offending words underlined is annexed hereto marked Annexure 3. The offending part of the 3^rd Controversial Document under complaint is:

“Madam Wong using heavy workload as an excuse make up a series of lies, and unilaterally decided to cancel the school chorus. However, until now, Madam Wong has still failed to offer any explanation about the heavy workload.”

71.  The pleaded meanings are that:

(1) Madam Wong had told a serious of lies about her alleged heavy workload;

(2) Using the lies about her alleged heavy workload, Madam Wong unilaterally decided to cancel the school choir;

(3) As at the date of the 3^rd Controversial Document, Madam Wong was still unable and/or unwilling to offer any explanation about her alleged heavy workload.

72.  In his pleading, Mr Wong accepts that the foregoing part of the 3^rd Controversial Document were defamatory of and with reference to Madam Wong and their pleaded meanings. Again, he first relies on the plea of justification. 

73.  I am not satisfied that Mr Wong has proved with cogent evidence that Madam Wong told a series of lies about her workload though she also relied on her workload as one of the reasons for her cancellation of the school choir. I bear in mind that her principal reason given was the inadequate recruitment.

74.  Mr Wong told this court why he thought the workload of Madam Wong was not heavy. He explained that it had already been reduced. In the first place, at the material time, she was no longer the Director of Promotion. Mr Wong argued that apart from being a stand-in Director of General Affairs and running a parent-child planting programme, Madam Wong had no other duties in addition to her normal teaching duties. He even argued that as a Director of General Affairs, Madam Wong only needed to take up some duties as a replacement of her colleague for the first school semester.

75.  On the other hand, Mr Sham highlights that Madam Wong had not complained about her workload before she cancelled the school choir. He also relies on an email of Madam Wong sent to Mr CT Chan dated 5 January 2011 in which she referred to his demand for her provision of the details of her overwhelming heavy workload. She also said that Mr CT Chan threatened to issue a warning letter to her if she failed to do so. He submits that it can be inferred that Mr CT Chan was not satisfied that Madam Wong had complied with his instruction given at the 1025 Meeting to set out her duties and was yet to be persuaded by Madam Wong that her workload was extremely heavy.

76.  On the other hand, Madam Wong explained that the duties of Director of General Affairs including examination matters were not familiar to her and that she was the Chinese language teacher of P3C and P6B classes and those students had to sit for a public examination known as Territory-wide System Assessment, TSA for short. She said, and Mr Wong agreed, she was the only teacher who had to prepare two classes for TSA. She also had to run Chinese tutorial class for P6B. She felt very stressed. I accept her explanation.  

77.  Even if Mr Wong is honest in his observations, I cannot accept Madam Wong lied about her workload. Mr Wong might genuinely find her workload to be light but this does not mean Madam Wong could not genuinely think that her workload was heavy. Her work capacity and capacity for stress could well differ from those of Mr Wong. Teaching duties of a Chinese language teacher alone could not be said to be light to begin with.  I should make it clear that for this reason, I refuse to deal with the evidence of the workload of several other teachers. I do not find it to be of assistance in this matter.

78.  Further, I accept that in the 1025 Email, Madam Wong already gave an explanation about her workload albeit not down to minute detail. Even if she had not yet provided the list of duties required by Mr CT Chan by January 2011, it could not possibly mean that she was unable and/or unwilling to offer any explanation about her alleged heavy workload.

79.  Mr Wong under cross-examination explained that the series of lies actually referred to the allegation that there were not enough applicants. I cannot accept this explanation. It is clearly not the ordinary meaning of the 3^rd Controversial Document. Nor is it consistent with his pleaded case.

80.  I therefore come to the conclusion that Mr Wong has failed to discharge his burden to prove the pleaded meanings of the offending part of the 3^rd Controversial Document are true in fact and in substance.

Qualified privilege

81.  I then turn to the defence of qualified privilege. Mr Wong distributed copies of the 3^rd Controversial Document to the music teachers and Ms Yim attending the 2^nd subject meeting by way of leaflets.

82.  Mr Wong claimed that all the music teachers had the duty and interest in receiving the 3^rd Controversial Document. His pleaded case is that whilst he was in charge of all extra-curricular activities, the panel of music teachers were involved in the extra-curricular activities relating to music. Since the subject matter of the 3^rd Controversial Document concerned the management of such activities, he had a legitimate duty and interest in the publication of the 3^rd Controversial Document and they had a corresponding duty and interest in receiving the same.

83.  On the other hand, it is pleaded that Mr Wong was under a social and/or moral duty to publish the 3^rd Controversial Document to the music teachers. They also had a like duty and/or interest in receiving the same.

84.  It is not in dispute that Mr Wong published the 3^rd Controversial Document to the music teachers for the purpose of the 2^nd subject meeting. He himself was in charge of the extra-curricular activities and should have an interest in the subject matter of the 3^rd Controversial Document. I do not accept the pleaded case of Madam Wong that Mr Wong was only responsible for administrative matters. He had a supervisory role to play. Mr CT Chan saw fit to involve him from start to finish in regard to the cancellation of the school choir. He did have a duty to make the 3^rd Controversial Document to explain the status of the school choir, the purported reason for the cancellation of the school choir and the School’s refusal to accept the purported reason.

85.  On the other hand, I accept that the music teachers also had a corresponding interest in receiving the information contained in the 3^rd Controversial Document, the purported reason given by the teacher in charge for the cancellation of the school choir. They should be also interested in the position taken by the School in this matter including the purported reason given by Madam Wong.

86.  In the premises, I find that there is a prima facie case of qualified privilege. I proceed to consider the pleaded allegations of malice and bad faith.

87.  I do not agree that Mr Wong in publishing the 3^rd Controversial Document knew that its contents were false or not justified. There is no direct evidence of such knowledge in the first place. In my view, Mr Wong had obviously lost his objectivity and was unreasonable. He was not happy with the unauthorised cancellation of the school choir by Madam Wong. He was not convinced at the outset that her workload was so heavy that she was not able to organize the choir in the first semester. Madam Wong’s non-compliance with the instruction of Mr CT Chan further aggravated his suspicion.

88.  Under these circumstances, Mr Wong held an honest belief that her workload was only an excuse. I fail to find any dishonesty in the 3^rd Controversial Document.

89.  I accept that the 3^rd Controversial Document was defamatory of Madam Wong and no doubt her feeling would be hurt as a result. However, I cannot conclude that this in itself constitutes malice in the law of defamation. It is apposite to bear in mind the dictum relating to malice on a qualified privilege occasion of Lord Diplock in Horrocks v Lowe (supra):

“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 with 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.”

90.  Thus, unless I find that Mr Wong published the 3^rd Controversial Document with his sole or dominant purpose to harm Madam Wong, Mr Wong is still entitled to the protection of qualified privilege despite the defamatory statements he made honestly: Qadir v Associated Newspapers Ltd [2012] EWHC 2606. I am unable to make such a finding on the evidence.

91.  On the other hand, one of the pleaded allegations of malice is that Mr Wong demanded Ms Fung to include the 3^rd Controversial Document in the minutes of the meeting, which would be uploaded to the server of the School and hence would attract a bigger readership of the defamatory statements.  However, Madam Wong did not in her evidence explain how she came to know the alleged demand of Mr Wong though she did not take part in the meeting. I am not satisfied that on the evidence I can conclude that Mr Wong made such a demand to Ms Fung and that Ms Fung did so pursuant to the alleged demand.

92.  Ms Lau further relies on an exchange between Mr Wong and this court. Mr Wong agreed that he could not be sure whether Madam Wong lied about her workload but he was sure she lied about the number of applicants. Ms Lau submits that he could not have an honest belief in the truth of the contents of the 3^rd Controversial Document.

93.  I do not accept this submission. The answer of Mr Wong should be understood in its context. It was given only after this court explained to him that the workload might be heavy to Madam Wong. He eventually accepted that he could not be sure and so he asserted that the alleged lies actually referred to insufficient enrolment. Notwithstanding his answer, I still believe that he was unable to accept the workload of Madam Wong was heavy at the time when he published the 3^rd Controversial Document.

94.  Ms Lau also draws my attention to an answer of Mr Wong given under cross-examination. He was asked why he did not make enquiries with Madam Wong directly once he was notified by Ms Fung about the cancellation of the school choir, given their good relationship at that time. He answered that both of them were busy and might not be able to see each other easily. I took his answer to mean that they could be occupied at the same time and direct conversation was not always possible. I do not think that it could be equated with acknowledgement of the weight of Madam Wong’s workload in general.

95.  I therefore come to the conclusion that Madam Wong has failed to prove malice on the part of Mr Wong on a balance of probabilities in the publication of the 3^rd Controversial Document. As a result, I find that the defence of qualified privilege is made out. Madam Wong’s claim in respect of the 3^rd Controversial Document cannot succeed.

The 4^th Controversial Document

96.  The 4^th Controversial Document is a lengthy document consisting of 3 full pages with 21 paragraphs. It was entitled [投訴黃艷文主任違反專業操守及校長監管不力] and the pleaded case of Madam Wong is that it was published to the AC. In his pleading, Mr Wong admitted this publication and added that it was published to the IMC as well. In his evidence, he explained that he was disappointed at how Mr CT Chan dealt with the matters about Madam Wong and he found it necessary to bring the matters to the attention of the IMC.

97.  Apart from the unauthorized cancellation of the school choir, Mr Wong made some new allegations against Madam Wong. A copy of the 4^th Controversial Document with the offending words underlined is annexed hereto marked Annexure 4.

98.  In her pleading, Madam Wong complains about 14 paragraphs of the 4^th Controversial Documents. Mr Wong accepts in his pleading that those paragraphs were defamatory but he avers that some of those paragraphs were made in the context of a complaint about the performance of Mr CT Chan.

99.  Concerning the meanings of the defamatory statements in the 4^th Controversial Document, Madam Wong in her pleaded case set out 14 meanings. Mr Wong makes a bare denial in his pleading and does not suggest any alternative meanings which he seeks to justify.

100.  Though the plea of justification has been abandoned, I still have to consider the meanings of those offensive part which may be relevant for the purpose of the plea of malice and bad faith and if necessary, the issue of quantum of damages.

101.  After perusing the 4^th Controversial Document, I am satisfied that the pleaded meanings of its offensive part are correct to the following extent:

(1) Madam Wong made many errors in her work and so the principal removed her from her post as Director of Promotion in the year 2009/2010.

(2) Madam Wong seriously violated the discipline of the School. She breached her promise to be in charge of the school choir. She decided on her own to cancel the school choir without giving prior notification to the relevant personnel.

(3) Madam Wong tried to evade her duties in regard to the school choir with her threat to resign from the post of AM. If she could not manage the duties of the school choir, she could not be competent in performing the onerous duties of an AM.

(4) Madam Wong’s work attitude was questionable. This was evidenced in an incident involving preparation of test papers in December 2010. Madam Wong took up the duties of Madam Leung when she was on training leave. Madam Wong relied on excuses including “typhoon is coming” and did not fully prepare the examination papers. She also used and “time constraint” as an excuse to disallow any mass reprint of the test papers absent serious errors.

(5) Madam Wong seemed to abuse her power and be oppressive to those of her colleagues responsible for preparing test papers in her request for submission of their draft test papers a week in advance for no apparent reasons. Such an early submission should afford the School an opportunity to make available printed copies of such drafts for their final approval but that was not done.

(6) Despite her knowledge of her duties in respect of the examinations of the School, Madam Wong applied for leave only after Mr YK Lau had prepared the timetable for invigilation and the related arrangements. Madam Wong might have breached the school policy and she could not be a good model.

(7) Madam Wong failed in her duty to prepare for the examination and remind her colleagues of important matters. On the first day of the examination, Mr Lau, the teacher who drafted the test papers did not inform those students in special education need (SEN) about the examination time and the amendments to the test papers. He even did not go to the classroom to attend to the examination on the 6/F and instead stayed at the staff room on the 7/F.

(8) Moreover, Madam Wong seemed to have made serious mistakes in her examination coordination. Due to Madam Wong’s failure to take note of the existence of two versions of invigilation guidelines (the December version and the October version), both versions appeared at the same time on the 2^nd day of the examination (Madam Wong was absent on that day). There were also different lists of students to be arranged to sit for the examination in another classroom. Madam Wong failed in her duty in respect of the coordination of the examination before she took leave.

(9) Madam Wong failed to spot a discrepancy between the audio material and the printed material in the listening test of the Chinese language for P.6 SEN students. She apparently failed to perform her duties.

(10) It was a joke that Madam Wong being a Chinese language teacher for several times questioned the appropriateness of the contents of the Mathematics test papers and requested for a change of the language used in the Mathematics guidelines even after they had been approved by Mr Ku, the subject master of Mathematics. Madam Wong abused her power despite her inferior knowledge or expertise.

(11) Madam Wong was unreasonable when she indicated repeatedly that she wished to change to be a Mathematics teacher even given the repeated express refusal of the School. She received on-job training as a Chinese language teacher at the cost of the School. She did not know her position and did not follow the guideline of the School.

(12) Madam Wong was lazy and irresponsible, in serious dereliction of her duty as shown in the prize ceremony incident. Her colleagues had to be called upon to complete her tasks. Mr CT Chan either was unable to deal with her problem or had a private agreement with Madam Wong so that Madam Wong was allowed to repeatedly commit breach of her duties and ethnics and Madam Wong could be so overbearing.

(13) Madam Wong was irresponsible, not repenting and did not reflect upon her own conducts.

102.  Indeed in the 4^th Controversial Document Mr Wong made a number of complaints about the work attitude and performance of Madam Wong. As indicated by Mr Sham, Mr Wong now does not justify the defamatory meanings of the offending part of the 4^th Controversial Document. In common law, a defamatory imputation is presumed to be false: Gatley on Libel and Slander, §11.4. Without a successful plea of justification, the position is that I can treat all the complaints in the 4^th Controversial Document are invalid and the defamatory imputations are false. I do not need to make factual findings relating to each of the complaints.  

Qualified privilege

103.  It is worthy of note that on this occasion, Mr Wong did not make the 4^th Controversial Document merely in his capacity as Head of the ASPC in charge of extra-curricular activities. His complaints covered other aspects of the work performance of Madam Wong and he says he made such complaints as a member of the AC.

104.  I refer to my analysis above relating to the 1^st Controversial Document. For the same reasons, I find that Mr Wong had a duty/interest to communicate to his fellow AC members his complaints about Madam Wong concerning the school operation and administration and they did have a corresponding duty/interest in receiving such information of his complaints. His many complaints did not relate to any personal disputes between them. The AC might not be called upon to decide whether Madam Wong was responsible for all the alleged problems identified by Mr Wong and if so how to sanction her. It, nonetheless, should have a duty/interest in the alleged problems with a view to better operation and/or administration of the School. For example, the AC should be made alert to all those minor problems surfaced during the examination in December 2010 and they could work out some operational or administrative measures to avoid their recurrence.

105.  Moreover, the AC had yet to make the assessment of the work performance and attitude invited by Madam Wong. There is no reason why Mr Wong should not have the right to provide to the AC such information in the 4^th Controversial Document (also those information contained in the 5^th and 6^th Controversial Documents).

Malice

106.  Though I do not make any factual findings relating to the complaints in the 4^th Controversial Document, as a matter of fact, there are not many material factual disputes relating to all the new complaints on top of the cancellation of school choir. Save that Madam Wong was actually never removed from the position of the Director of Promotion, which Mr Wong readily accepted under cross-examination, the large majority of the basic facts are not in dispute. Their major differences are that Mr Wong is positive that Madam Wong should be responsible for all those minor matters under complaint.

107.  In other words, Mr Wong did not fabricate facts to make false accusation against Madam Wong. I find that he honestly thought that it was right to say that Madam Wong was removed from her position of the Director of Promotion when she was only relieved from most of her duties. He obviously thought very lowly of Madam Wong and he had suspicions about everything little things she did. I find him to be biased and opinionated.

108.  I also find that he was unfair in his criticisms about Madam Wong such as her allegedly late application for leave and her suggestion of amendments to the Mathematics test papers given to Mr Ku. His complaint about Madam Wong’s indication of her wish to change to be a Mathematics teacher is unmeritorious in the extreme.

109.  I have heard Mr Wong’s elaborations of all his complaints under cross-examination. I believe that he made such complaints honestly though his judgment was apparently clouded by his frustration with the inaction of Mr CT Chan about Madam Wong’s unauthorized cancellation of the school choir. That explains why he also complained about Mr CT Chan. He openly accepted that he was careless in some aspects and he regretted the strong language he used in the 4^th Controversial Document. He indicated that he was willing to apologise to Madam Wong.

110.  Pausing here, I find the following dictum of Lord Diplock in Horrocks v Lowe (supra) (at p.150) to be of particular relevance to the issue of malice arising from the 4^th Controversial Document:

“The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and failing to recognize the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be “honest”, that is, a positive belief that conclusions have reached true. The law demands no more.”

111.  However disapproving about the merit of Mr Wong’s complaints this court is, I cannot come to any conclusion other than that Mr Wong was serious and genuine in his complaints, especially after listening to his elaborations. I find that Madam Wong has failed to negative the presumed honesty in Mr Wong’s publication of the 4^th Controversial Document. In addition, I do not accept that Mr Wong was actuated by any improper or indirect motive in his production of the 4^th Controversial Document.

112.  I have studied all the particulars of malice and bad faith pleaded in the Amended Reply. I am not convinced that I can find malice. I should make a specific mention about two matters pleaded as particulars of malice. Madam Wong relies on them in respect of all the Controversial Documents and since the defence of justification has been abandoned for the 4^th, 5^th and 6^th Controversial Documents, I find it convenient to have a discussion about them here.

113.  First, Madam Wong relies on the refusal of Mr Wong to retract the offending words and/or to apologize when he knew and did not dispute that they were false and/or unjustified. Though Mr Wong now does not justify them, I do not think Mr Wong’s refusal can assist her to prove malice under the present circumstances. Mr Sham helpfully draws my attention to the following dictum of Sellers L.J. in Broadway Approvals Ltd and Anor. v. Odhams Press Ltd and Anor. [1965] 1 W.L.R. 805 at p.814:

“The failure to apologise or retract and persistence in a plea of justification are in themselves not evidence of malice. They may be in certain circumstances but more frequently they would show sincerity and belief in what had been said and establish the best reason for the publication. The defendants failed to prove justification but they succeeded in fair comment and in that circumstances their failure to apologise or retract provides little indication of malice.”

114.  Secondly, Madam Wong relies on her averment that Mr Wong failed to make the enquiries with Madam Wong and/or to give her opportunities to respond to his intended criticisms or attack.

115.  On the particular facts of this case, I do not find that Mr Wong’s failure to do is indicative of any malice in his publication of the 4^th Controversial Document (and the 5^th and 6^th Controversial Documents as well). In coming to this conclusion, I take heed of the following proposition in Gatley on Libel and Slander,  §17.17:

“If the defendant honestly believe this statement to be true, he is not to be held malicious merely because such belief was not based on any reasonable grounds; or because he has done insufficient research, or was hasty, credulous, or foolish in jumping to a conclusion, irrational, indiscreet, stupid, pig-headed or obstinate in his belief.”

116.  The upshot is that the defence of qualified privilege is not defeated by any malice and is available to Mr Wong.

117.  Lastly, I reject the pleaded defence of leave and licence. I do not accept on the evidence that there was a publication of the 4^th Controversial Document to the IMC. If it had been so published, there is no reason that there is no evidence of its feedback or reaction.

118.  But even if it had been so, I just could not see the relevance. What Madam Wong complains is about the publication of the Controversial Documents to the AC and not to the IMC. I can conclude that this defence of leave and licence must be rejected.

119.  For the same reasons, I also reject this defence in respect of the 5^th and 6^th Controversial Documents.

The 5^th Controversial Document

120.  I should first give a bit of background leading to the publication of the 5^th Controversial Document, which was an email Mr Wong sent to all the members of the AC.

121.  In the early morning of that day, Mr Ku, the recipient of the 1^st, 3^rd and 4^th Controversial Documents, sent an email to all the members of the AC except Mr CT Chan and Mr Wong. In his email, he shared his feeling about the controversy at the School. He did not make express reference to Mr Wong but he clearly referred to all the disputes involving Mr Wong. He found “the colleague” to have a lot of grievances. He urged his colleagues, being educators, to take a mature approach in dealing with disputes and be generous to one another. He preached about more empathy and understanding.  

122.  I entirely agree to his view in the email. But I do not accept his explanation that his email was not sent to Mr CT Chan and Mr Wong only due to an oversight. I believe he deliberately excluded them from his email, judging from the contents of this email. This in itself is not something I should hold against him though.

123.  Mr Wong found out this email. He emailed the 5^th Controversial Document consisting of 7 paragraphs in reply to Mr Ku’s email to all the AC members in the afternoon.

124.  Madam Wong now complains about certain parts of two paragraphs in the 5^th Controversial Document. A copy of the 5^th Controversial Document with the offending words underlined is annexed hereto marked Annexure 5.

125.  In her pleading, Madam Wong sets out the English translations of the offensive parts. Mr Wong in his pleading challenges the accuracy of such translations without providing his translations. Mr Sham at my request provides me the following translations (with my edit) at the end of the trial:

(1) My complaint of course contained a lot of grievances. Such grievances were ascribed to injustice, and such injustice was about her failure to do her job required of her in her position, lack of integrity, irresponsibility and repeated breaches of professional conduct as a teacher. The principal had spoiled her and permitted her to act according to her own wishes, there was more and more injustice. (I) believe that this would shake the well-established system of the School and disrupt the overall harmony among the staff of the School.

(2) How could a teacher who failed to behave properly face his/her students? How to be a teacher? A teaching job is about the use of one’s life to influence the others. Setting good examples is more important than verbal preaching. Seeing Madam Wong always act for her own interest and when being reminded of the focus on the School and the students lose her temper and react unreasonably, even with threats of resignation … the principal therefore was afraid to deal with her and Mr Ku therefore accepted and supported.   

126.  Mr Wong makes a bare denial of the pleaded meanings of the offending words and again he does not provide any meanings sought to be justified. Despite his abandonment of the defence of justification, I still have to consider the meanings of those offending words in the 5^th Controversial Document.

127.  I have gone through those meanings pleaded by Madam Wong. I agree that the ordinary and natural meanings of the offending words are as follows:

(1) Madam Wong breached and/or disregarded her job duties.

(2) Madam Wong was a person of no integrity.

(3) Madam Wong was an irresponsible teacher.

(4) Madam Wong repeatedly breaches her professional conduct.

(5) Madam Wong acted according to her own wishes.

(6) Madam Wong did not behave properly and was unable to face her students. She was not fit to be a teacher.

(7) Madam Wong always acted selfishly in her own interest.

(8) Madam Wong threw tantrum and threatened to resign when being reminded of the interests and well-being of the 11students.

(9) Madam Wong set a bad example to students.

Qualified privilege

128.  The purpose of the 5^th Controversial Document is clear from the contents. Mr Wong sent this to the members of the AC to give an explanation why he found it necessary to lodge his previous complaints about Madam Wong to the AC. It contained no new factual allegations. He was prompted by Mr Ku’s email to make the 5^th Controversial Document and he was eager to make it clear that his complaints were genuinely made and not out of personal spite. He wanted to persuade the AC members that he was neither immature nor mean.

129.  At the end of this document, he invited the AC to follow up his complaints about both Mr CT Chan and Madam Wong. If the AC found itself not in a position to deal with the complaints, Mr Wong asked the AC to submit his complaints to the IMC. He insisted that his complaints were made in the interests of the School.

130.  Hence, his position as the maker of the 5^th Controversial Documents and the position of the AC as the recipients of the same should not materially differ from those on the previous occasions. Mr Wong’s explanation and/or clarification of his position in the previous complaints about Madam Wong must be a matter of concern to the AC.  By the same token, the communication is in my judgment covered by qualified privilege.

Malice

131.  Admittedly Mr Wong used very strong language in the 5^th Controversial Document. He very harshly criticized Madam Wong. Madam Wong’s resentment to his criticisms is perfectly understandable. In my view, Mr Wong showed ruthless disregard for the feeling of Madam Wong and being a teacher, he should have done better than this.

132.  But the crucial question is whether he published the offending words in the 5^th Controversial Document dishonestly with a dominant motive to injure Madam Wong. If not, even if he knew that his defamatory publication would inevitably injure Madam Wong, he is protected by qualified privilege if he merely acted in accordance with a sense of duty or in bona fide protection of his own interests.   

133.  On the evidence, though Mr Wong made scathing attack on the suitability of Madam Wong as a teacher, I find that his dominant intention was to show the proper basis of his previous complaints and to persuade the AC that they were bona fide and not as a personal vendetta. He acted albeit misguidedly to fulfill his duties to the School and in protection of the interests of the School and his own interests.

134.  I have again gone through the particulars of malice.  Most of them relied on the knowledge of Mr Wong about the falsity of the 5^th Controversial Document. I can find no such knowledge.

135.  For all other contentions, I believe my foregoing analysis and findings can sufficiently dispose of them and I need not repeat or elaborate any further.

136.  In the premises, I can conclude that in respect of the 5^th Controversial Document, Mr Wong has a valid defence of qualified privilege in the absence of any finding of malice.

The 6^th Controversial Document

137.  The 6^th Controversial Document was an email in reply to Mr CT Chan’s email dated 21 January 2011. His email was issued to Mr Wong and was first sent to him alone in the morning. In the evening, Mr CT Chan issued the email to all other members of the AC.

138.  In his lengthy message, Mr CT Chan talked in a very polite manner with Mr Wong and referred to a meeting with Mr Wong in that morning. Mr CT Chan further explained to him that he was following up the matters raised by Mr Wong. He thanked Mr Wong’s loyalty to and concern about the School. He said he appreciated Mr Wong’s enthusiasm about the affairs of the School. Lastly, Mr CT Chan appealed to the teachers that they should work together as a team and should contain one’s temporary emotion. They should not easily and readily criticize others causing turmoil within the team and injury to the team morale.[2]

139.  Mr Wong’s reply email was published to all the members of the AC. It consisted of 7 paragraphs.

140.  Madam Wong finds certain words in 5 paragraphs of the 6^th Controversial Documents to be offensive. A copy of the 6^th Controversial Document with the offending words underlined is annexed hereto marked Annexure 6.

141.  In his pleading, Mr Wong disputes the accuracy of the English translations of the offending words set out in Madam Wong’s pleading but he does not provide his version.  Mr Sham finally provides his translations in his closing submission. I accept the overall accuracy of Madam Wong’s translations.

142.  Mr Wong disputes the pleaded meanings of those offending words again without providing his own version. He sought to justify the pleaded imputations but Mr Sham abandons the plea of justification in his closing submission. He provides to this court his meanings of the offending words, which differ very little from the pleaded meanings of Madam Wong.

143.  I accept the pleaded meanings save that some amendments are necessary. I set them (with my amendments) out as follows:

(1) Madam Wong unilaterally cancelled the school choir without obtaining the consent and/or approval of the management and/or representative of the School.

(2) Madam Wong had told a series of lies.

(3) Madam Wong had evaded responsibilities and was an irresponsible person.

(4) Madam Wong lacked integrity.

(5) Madam Wong breached important principles of professional conducts as a teacher.

(6) As a result of Madam Wong’s lies, evasion of her responsibilities, irresponsible behaviour, lack of integrity and breach of important principles of professional conducts, the well-established system of the School was shaken and the harmony among the staff of the School was disrupted.

(7)Madam Wong told a series of lies and repeatedly made accusation against the principal and Mr Wong in the 1025 Email.

(8) The reason why there is a problem (about the extra-curricular activities) this year is due to Madam Wong’s breach of her promise and her unilateral decision of cancellation the training of the school choir.

(9) Madam Wong was not fit to act as the Director of Promotion. The principal failed to perform his supervisory role and demand performance of her duties. On the contrary, he relieved her from her duties, This set a bad example to others, encouraging other staff to act according to their own wish and to disobey the guidelines of the School showing no sense of responsibility.

144.  Before I proceed to consider the defence of qualified privilege, I should point out that despite the wholesale abandonment of the defence of justification, it can be seen that indeed similar defamatory imputations relating to the unauthorized cancellation of the school choir and the contents of the 1025 Email in the 1^st Controversial Document have been found to be justified by this court.

Qualified privilege

145.  To underscore the bona fide of his previous complaints about Madam Wong, Mr Wong also gave a bit of background circumstances leading to her unauthorized cancellation of the school choir, placing the ultimate blame on the principal’s inadequate supervision and questionable management in the 6^th Controversial Document.

146.  The nature and purpose of the 6^th Controversial Document are no different from that of the 5^th Controversial Document. Mr Wong published the 6^th Controversial Document and the AC received the same in identical capacities under similar circumstances. The same analysis should apply and I can make the same conclusion. The publication is protected by qualified privilege.

Malice

147.  I find the same honesty and innocent motive of Mr Wong in his publication of the offending words in the 6^th Controversial Document. There is no reason why I should make a different finding.

148.  Indeed, Mr CT Chan in his email accepted that Mr Wong had all along had the good intention to act in the interests of the School. Mr Wong in this court repeatedly said he wanted to improve the operation and administration of the School. Rightly or wrongly, Mr Wong thought that he was acting with a noble cause. I cannot find malice.

149.  I am unable to be convinced by any of the pleaded matters to find malice on the part of Mr Wong. Insofar as the contention that there was no need for Mr Wong to repeat his defamatory words about Madam Wong in this document is concerned, in my view it is clear that Mr Wong was eager to explain to the AC why his previous complaints were genuine and not just a causal criticism. Obviously he wanted that the AC would take his complaints seriously and take steps to redress the problem for the benefit of the School.

150.  In the absence of any finding of malice, Mr Wong has a valid defence of qualified privilege in respect of the 6^th Controversial Document.

Conclusion and Order

151.  In summary, for the reasons given above, I conclude that in regard to:

(1) the 1^st Controversial Document, Mr Wong succeeds in his defences of justification and qualified privilege;

(2) the 2^nd Controversial Document, Mr Wong succeeds in his defences of justification and qualified privilege;

(3) the 3^rd Controversial Document, Mr Wong succeeds in his defences of justification and qualified privilege;

(4) the 4^th Controversial Document, Mr Wong succeeds in his defence of qualified privilege;

(5) the 5^th Controversial Document, Mr Wong succeeds in his defence of qualified privilege; and

(6) the 6^th Controversial Document, Mr Wong succeeds in his defence of qualified privilege.

152.  The net outcome is that Mr Wong has successfully resisted the entire claim of Madam Wong. Her claim should therefore be dismissed and I so order.

153.  I do not intend to give my assessment of the quantum of damages to which Madam Wong would otherwise be entitled in this judgment. Such an assessment is very much dependent on the basis upon which liability is found and there can be different combinations of findings. In the event that liability is eventually established against Mr Wong, I opine that this matter can be remitted to me for an assessment of damages. 

154.  The general rule is that costs should follow the event. Given the dismissal of her claim, Madam Wong should pay Mr Wong’s costs of the action. However, Mr Wong originally maintained a defence of justification in relation to the 4^th, 5^th and 6^th Controversial Documents and a plea of bad reputation in mitigation of damages.  The former was abandoned only after the close of evidence and the latter was abandoned at the outset of the trial. Mr Wong must pay Madam Wong’s costs of and occasioned by these two abandoned pleas.

155.  The former took up considerable court’s time notwithstanding Mr Sham’s admirable restraint and a lot of documentary evidence had been prepared to justify the various allegations contained therein. The latter, apart from substantial documentary evidence adduced, Madam Wong called additional witnesses to testify for her good reputation as a result.

156.  Adopting a broad-brush approach, instead of allowing two sets of taxation, I believe I should exercise my discretion to make a 60% deduction of Mr Wong’s costs of this action to be borne by Madam Wong. Hence, I make an order nisi that Madam Wong should pay 40% of Mr Wong’s costs of this action, to be taxed if not agreed. This order nisi will become absolute after 14 days from the date of this judgment absent any application to vary the same by summons.

157.  Finally, as a postscript to this judgment, I would remark on the conduct of the parties. Madam Wong has undoubtedly been troubled by all the Controversial Documents. The criticisms there are very hard to take and they have understandably aroused emotional disturbance. I do feel sorry for her. To my mind, she does not deserve such relentless criticisms though she should have done better in the cancellation of the school choir and in her 1025 Email.    

158.  To deal with this kind of difficulties, Madam Wong can have recourse other than litigation. Positive thinking can definitely help. She should take pride in the fact that she has won high praise from her former principal, her ex-colleagues and her former student. I have little doubt that she was a much loved and highly respected teacher at the School. Now she works in another school far away from the School and she says she is very happy with her present teaching job. What Mr Wong said about her cannot be as important as she thinks. She should simply move on and get the best out of the bright side of her life.

159.  Of course, Madam Wong is legally entitled to look to the court to seek appropriate relief.  She finds that nothing less than a judgment can vindicate her good name. I have some doubts about this. Be that as it may, she required a thorough assessment of her chance of success in anticipation of any possible defence available to Mr Wong before commencing this litigation. She should know very well that an unsuccessful defamation action would only bring her more woes and rub salt into her wounds.

160.  She plunged into this action in early March 2011. This litigation has been blown out of proportion and her legal advisers have had insufficient regard for the underlying objectives in Order 1A r.1, RHC. The 81-page Amended Reply speaks volume for their sense of proportion, or the lack of it. I should make it clear that Ms Lau and Mr Fong were only instructed to conduct the trial at a late stage.

161.  Mr Wong now turns out to be the winner but this litigation can bring him little joy. I find some of his criticisms about his close friend in the Controversial Documents obnoxious, albeit ultimately found to be protected by qualified privilege. 

162.  Mr Wong has throughout taken the moral high ground. In the 5^th Controversial Document, he quoted a bible verse to explain why a teacher must conduct himself/herself in an exemplary manner. Without being moralizing and religious here, it suffices for me to say that Mr Wong must be able to find verses on forgiveness and judging others in the same bible.

163.  Mr Wong at the trial said he was sorry for the language he had used in the Controversial Documents and he accepted that his complaints could have been made in a way less injurious to the feeling of Madam Wong. Learning is a lifelong process and is not confined to schooling. I do hope that both Madam Wong and Mr Wong can learn a good lesson from this litigation and be an even better example to their students in every respect.

Annexure 1- 4

Annexure 5 - 6

[1] The Chinese text of the guideline reads: “凡投訴涉及教職員者, 由校長處理, 將結果向校監報告。”

[2] The original Chinese text: “在此我盼望大家能和衷共濟, 忍一時之氣, 不要動輒彈劾, 激氣千重浪, 破壞軍心。”