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

CACV 251/2015
and CACV 252/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 251 OF 2015

(ON APPEAL FROM HCA 370/2012)

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 252 OF 2015

(ON APPEAL FROM HCA 370/2012)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  The 1^st to 3^rd Plaintiffs seek leave to appeal from the judgment of this Court of 23 December 2016 in these appeals. By that judgment, we allowed the appeal and dismissed the Plaintiffs’ claims on defamation.

2.  The application of the Plaintiffs was made by Notices of Motion of 20 January 2017 issued in both appeals.  Paragraph 1 of the Notices of Motion attempted to set out 10 questions of great general or public importance for submissions to the Court of Final Appeal.  Paragraph 2 of the Notices of Motion set out 4 grounds for seeking leave on the “or otherwise limb” under Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

3.  Pursuant to directions of the Registrar of Civil Appeals, submissions were filed by the parties.  Neither party asks for oral hearing.  We are satisfied that the application can properly be determined on papers.

4.  The Chief Justice gave guidance on the proper formulation of questions in a notice of motion in IDC v SSA (2015) 18 HKCFAR 91.  At [5], the learned Chief Justice said:

“Such identified questions ought to be set out clearly and concisely, and not be in the tendentious and argumentative form ...”

5.  At [6] and [7] of that judgment, the Chief Justice further commented that the questions raised in that case amounted in substance and at its highest to no more than a complaint about the exercise of discretion by the Court of Appeal and no question of great general or public importance was involved.

6.  In the present case, the 10 questions were grouped under three heads: (1) qualified privilege; (2) Role of the Court of Appeal on appeals from jury’s findings; and (3) malice.

7.  Before we embark on the consideration of these questions, we wish to comment upon the submissions filed on behalf of the Plaintiffs.  The directions of the Registrar of Civil Appeals reminded the parties not to re-argue the appeal in an application of this nature.  Such reminder is in line with the observations of this Court in Ho Sin Ying v Chan Yui Ling CACV 221 of 2013, 14 Nov 2014; Kwangtung Provincial Bank v Chung Sun Kwan CACV 64 of 2014, 3 Dec 2014 and Chee Fei Ming v Director of Food and Environmental Hygiene CACV 219 and 220 of 2014, 7 September 2016.

8.  Regrettably, and with great respect to counsel for the Plaintiffs, the submissions placed before us were full of attempts to re-argue the appeal.  More regrettably, on some issues counsel advanced belated arguments which had not been put forward at the hearing of the substantive appeal.  In our view, counsel should not slip in new line of arguments without acknowledging this to be points not taken at the substantive appeal with an explanation as to why the argument was not made previously.  An application for leave to appeal is not intended to be an occasion for a second bite of the cherry by the losing party.  Whilst the court does have the power to entertain new arguments on law if the relevant criteria are satisfied (as to that see Flywin Co Ltd v Strong Associates Ltd (2002) 5 HKCFAR 356; Kung Ming Tak Tong Co Ltd v Park Solid Enterprises Ltd CACV 227 of 2005, 26 June 2007; Ageas Insurance Co Ltd v Lam Hau Wah Inneo CACV 65 of 2014, 19 May 2015; The Law Society of Hong Kong v A Solicitor CACV 78 of 2014, 10 July 2015), a party putting forward such arguments has a duty to explain why should such course be allowed when he did not deem fit to advance such argument on the proper occasion, viz at the substantive appeal.  And the fulfilment of such duty starts with a candid acknowledgement that it is a new line of argument.  In our judgment, these observations apply equally to a new argument on a point of law already raised (but argued differently at the substantive appeal).  Quite apart from anything else, this must have a bearing on costs and the conditions that the court might impose in granting leave.

9.  Under the heading of qualified privilege, 2 questions were put forward:

“(1) Is it the law that in an educational setting, all communication among the parents of students themselves on matters which might affect the school’s reputation or management are protected by qualified privilege, particularly when such communication defames and identifies individual students and also their parents? How in law should the Courts balance parental involvement in a school’s affairs with the importance of protecting individual vulnerable school children from defamatory attacks in the modern context of internet defamation and therefore cyberbullying, especially when made by adults?

(2) Was the Court of Appeal correct in law in determining that the jury’s special verdicts are irrelevant to the question of qualified privilege?”

10.  Question (1) was based on a misreading of our judgment.  In our judgment of 23 December 2016, we made it very clear that whether the requisite duty or interest exists is a fact-sensitive question to be determined by the particular circumstances of the case, see in particular [113] to [115] of our judgment.  We did not purport to lay down any rigid proposition of law as formulated in the first part Question (1).  There is no immutable principle of law stipulating how the balance should be struck and the second part of Question (1) is not a proper question for determination by the Court of Final Appeal.

11.  The submission that we failed to discuss on striking a balance between the right to reputation and right of freedom of expression is surprising when counsel had not deemed fit to put forward any argument at the substantive appeal as to the inadequacy of the existing law on qualified privilege in striking a fair balance in that regard.  In our judgment, if a point of that nature is to be taken, it should have been properly canvassed at the substantive appeal instead of having it slipped in without any explanation why there was such change of course in the argument.

12.  The submission now advanced on behalf of the Plaintiffs at paragraph 24 by reference to Gibbs v Jalbert (1996) 18 BCLR (3d) 351 is misconceived.  As explained by Mr Yu SC in his submission, in light of what was said at [108] to [116], we do not see any need to refer to that judgment which is not binding on us and decided in a setting which we are not familiar with when the issue is, as held by us, to be fact-sensitive.

13.  At [97] to [99] of our judgment, we explained why the special verdict of the jury had no significance on the existence of qualified privilege.  Mr McCoy SC’s submission in this application had failed to pinpoint how we erred in that analysis.   Question (2) is, with respect, not reasonably arguable.

14.  Under the heading “Role of the Court of Appeal on appeals from jury’s findings”, the Plaintiffs raised these questions in the Notices of Motion:

“(3) Whether the Court of Appeal usurped the role of the jury as a constitutional tribunal of fact which had the benefit of listening to all the evidence of the witnesses and observing the demeanour of the witnesses over several days in the witness box in reaching its conclusion as to credibility in coming to the view that the 2^nd Defendant did have either knowledge of the falsity of her statements or was actuated by an improper and dominate motive or both?

(4) Is it proper for the Court of Appeal to itself draw inferences and reach conclusions as to the credibility of a witness and her subjective knowledge and belief from correspondence and documents, when the correspondence and documents had never been put to the witness by her own side as to her subjective knowledge and belief?

15.  With due respect, Question (3) was framed without proper regard to our conclusion at [201] that the judge failed to give adequate direction to the jury on the question of malice and the defendants’ case on lack of malice had not been properly considered by the jury.  It cannot be disputed that this Court is entitled to set aside the verdict when it was reached by the jury under inadequate direction and misdirection of law.

16.  Question (4) is again a thoroughly bad point. It was not a point taken in the course of the substantive appeal.  In any event, it is plainly without merit.  As Mr Yu SC submitted, the contemporaneous emails spoke for themselves and if the Plaintiffs wished to challenge the Defendants as to the statements in those emails as not truly reflecting the real intention of the Defendants, it was up to Plaintiffs’ counsel to put that to the writers of the same.

17.  Under the heading “Malice”, the Plaintiffs put forward these questions in the Notices of Motion:

“(5) Should one who publishes a defamatory statement recklessly, without considering or caring whether it be true or not, be treated as if he/she knew it to be false? Does one who does not believe in the truth of the defamatory statement when it was made, publish such statement with malice?

(6) Is there a distinction between “recklessness” and “wilful blindness”? Is it valid to make a complex and subtle distinction between the two? Is it the law that recklessness as to truth or falsity of a publication, short of wilful blindness, will not destroy an occasion of qualified privilege unless it is accompanied by some other state of mind?

(7) Is knowledge of falsity of a defamatory statement “generally conclusive evidence” of express malice? Is knowledge of falsity “almost conclusive evidence” that the defendant had some improper motive in publishing the material and that it actuated the publication? If knowledge of falsity will almost always establish the existence of improper motive, is it of limited or any practical significance to distinguish between whether knowledge of falsity is a separate head of malice or simply a way of establishing an improper motive?

(8) Whether the Court of Appeal was correct in deciding that malice did not merely mean, inter alia, the publication of defamatory matter, knowing it to be false, or not caring whether it was true or false, or being indifferent to its truth or falsity?

(9) To constitute malice, must the dominant and improper motive be a motive to injure the plaintiffs, as this Court found in paragraph 181 of the Judgment, or may there be other dominant and improper motive, such as the publisher’s insistence to be seen to be right with the intention that the defamed parties are publicly found guilty of wrongdoing and punished?

(10) Is a finding by an appellate court that no reasonable jury could have reached a particular verdict equivalent to a finding that the jury’s verdict is perverse?  If the answer is in the affirmative, should the appellate court, before making such finding, remind itself of the principles laid down in Grobbelar v News Group Newspapers Ltd [2002] 1 WLR 302, (at §§21 and 26 per Lord Bingham; at §§51 and 60 per Lord Hobhouse; §§67 per Lord Millett) and in Ting Kwok Keung v Tam Dick Yuen & Others (2002) 5 HKCFAR 336, at §§35-46 per Bokhary PJ).  In such circumstances, was the Court of Appeal correct in law in finding in paragraph 237 of the Judgment that no reasonable jury could have found malice in the present case and therefore made the orders as they did?”

18.  We can first dispose of Question (10).  The short answer is to repeat what we said in relation to Question (3).  Insofar as it is meant to be a reference to [181] of our judgment (as Mr McCoy so argued at paragraph 21 of his submissions of 22 February 2017, which is the only paragraph in those submissions pertaining to Question (10)), there is simply no foundation for this question to be raised.  As we have explained in that paragraph, it is quite plain that the jury had reached the conclusion the first limb of the Plaintiffs’ case (dominant intention to injure based on the wordings of the emails) must be rejected.  We further went on to explain why that was not surprising in light of the evidence as to the objective circumstances.  In no way can that be read as our finding that the verdict of the jury was perverse.

19.  At paragraph 13 of his Reply Submissions of 15 March 2017, Mr McCoy refocused the challenge towards [237] of our judgment.  Again, with respect, it is a completely false point.  [237] is under Section E5 “Should there be a retrial in respect of the question of malice?”, which started at [209].  Before we came to that section, we have explained at the earlier parts of the judgment why the verdict of the jury on malice had to be set aside on the ground of misdirection in law, see Sections E1 to E4 of our judgment ([137] to [207] of our judgment).  After that, we discussed the test for deciding whether there should be a retrial and concluded at [212] that we should adopt the test derived from the cases cited at [210] and [211], viz whether we can be satisfied that no reasonable jury could possibly come to any other conclusion.  It was in that context we examined the evidence at length and come to the conclusion we did at [237]. 

20.  Thus, properly understood, our conclusion at [237] does not engage our displacement of the verdict of the jury on the ground of perversity.  Question (10) is therefore not engaged.

21.  Question (9) is again, with respect, proffered on a mistaken premise.  On a careful reading of [181] of our judgment, we had not decided that the dominant and improper motive must be a motive to injure the plaintiffs in order to constitute malice.  At that paragraph, we were only explaining that jury must have rejected Mr Whitehead’s case of dominant intention to injure. 

22.  Questions (5) to (8) are simply different ways in putting forward one proposition: that we erred in holding that recklessness short of wilful blindness does not constitute malice. 

23.  We considered the relevant cases and principles at Section E1 of our judgment and held that we should follow the approach of the High Court of Australia in Roberts v Bass (2002) 212 CLR 1.  We set out our conclusions on the law at [144] to [147].  We explained at [146] that we agreed with the analysis in Roberts v Bass that such approach was consistent with Horrocks v Lowe [1975] AC 135, Royal Aquarium v Parkinson [1892] 1 QB 431 and Clark v Molyneux (1877) 3 QBD 237. 

24.  In his submissions in support the present leave application, Mr McCoy advanced the following arguments regarding our analysis on recklessness:

(a) Roberts v Bass is not in line with the law stated by Lord Diplock in Horrocks v Lowe, and we should follow Horrocks v Lowe;

(b) Gatley on Libel and Slander does not endorse Roberts v Bass as representing English law;

(c) Lack of honest belief is sufficient to establish malice and sufficient directions were given by the judge to the jury in that regard;

(d) The subtle distinction between knowledge of falsity, lack of honest belief, wilful blindness and gross prejudice and the layered approach to prove improper motive is unworkable in a jury trial. 

25.  Mr McCoy made further submissions on the facts at paragraphs 9 to 12 and 14 and 15 of his submissions of 22 February 2017. 

26.  We do not recall Mr McCoy advancing a submission at the hearing of the substantive appeal similar to (a) and (b).  We have checked our notes and the transcript of the substantive appeal.  In respect of Roberts v Bass (which Mr Yu placed great reliance before us at the substantive appeal), Mr McCoy’s only submission was one along (d) above, see the transcript at p.192-3.

27.  We are not going to supplement our main judgment with a detail analysis of the new arguments.  Suffice for us to say, now that we have the benefit of these further submissions, we still hold the view as set out in the main judgment and the High Court of Australia had adequately explained in the judgment of Roberts v Bass that its approach was consistently derived from Horrocks v Lowe and earlier English cases. 

28.  We are not persuaded by Mr McCoy that his challenge to Roberts v Bass is reasonably arguable.  The crucial question is not whether Roberts v Bass represents English law.  Rather, the key issue is whether the analysis in that case is sound.  We have no doubt it is. 

29.  For these reasons, we do not think Questions (5) to (8) avail the Plaintiffs.

30.  The Plaintiffs set out the grounds for seeking leave on the “or otherwise limb” at paragraph 2 of the Notices of Motion:

“2. THAT in addition leave to appeal should be given as a matter of discretion under the “or otherwise” limb of s.22(1)(B) of the HKCFAO on the ground that this case and its appeal present the following unusual features either of law and fact.

(1) This case is exceptional in that it is the first case in Hong Kong in which the finding of malice by the jury as the constitutional tribunal of fact, which defeats any defence of qualified privilege, was overturned by the Court of Appeal.

(2) This case presents an unusual feature of law concerning the scope of the defence of qualified privilege, the meaning of malice in the law of defamation and the circumstances under which an appellate court can overturn a finding of malice by the jury.

(3) This case presents an unusual feature of fact in that the reputations, in particular reputation of the 1^st and 2^nd Plaintiffs who were minors and school children at the time the defamatory statements were published by the Defendants, are at risk of being traduced by defamatory statements circulated by emails without effective remedy.

(4) With respect to the 3^rd Plaintiff, there is the question of whether the Court of Appeal complied with procedural justice in failing to give separate consideration to his position as there was never any evidence adduced at the trial that he had acted suspiciously or improperly in any way in relation to the investigations and exonerations of the 1^st and 2^nd Plaintiffs and that there was no basis whatsoever for the Defendants to have been able to hold a genuine subjective belief and were in any event actuated by malice.”

31.  Having considered these grounds and the submissions of counsel, we do not accept this is an exceptional case and see no justification for us to depart from the usual practice of not granting leave on this ground by this court.

32.  We dismiss the Notices of Motion and order the Plaintiffs to pay the costs of the Defendants in the application.  Having considered the Statements of Costs of the Defendants, we make an order nisi fixing the costs at $75,000 in each appeal.  In other words, the total sum that the Plaintiffs should pay is $150,000.